Brailas v. Shepard SS Co., 116.
| Decision Date | 27 December 1945 |
| Docket Number | No. 116.,116. |
| Parties | BRAILAS v. SHEPARD S. S. CO. |
| Court | U.S. Court of Appeals — Second Circuit |
Jacob Rassner, of New York City, for plaintiff-appellant.
Corydon B. Dunham, of New York City (Xavier N. Sardaro, of New York City, on the brief), for defendant-appellee.
Before L. HAND, AUGUSTUS N. HAND, and CLARK, Circuit Judges.
On January, 21, 1944, while the S.S. "Lot Whitcomb" was maneuvering for anchorage at Suez, plaintiff — the ship's chief engineer — entered the engine room and became involved in an argument with Dolanides, the first assistant engineer, who eventually stabbed him. Plaintiff sued as his employer the Shepard Steamship Company, operator of the vessel, for the resultant injuries, under the Jones Act, 46 U.S. C.A. § 688. From a verdict and judgment for the defendant, plaintiff appeals.
The points on which he urges reversal are the District Court's refusal to charge as requested and its further refusal to submit certain issues to the jury. There were no eyewitnesses of the injury, and the participants relate divergent stories. It appears from the testimony of both parties, however, that during the course of their argument a danger signal or full speed bell came in via the telegraph and that the stabbing occurred after some physical strife, occurring more or less simultaneously with the movements of the throttle made in response to the signal. Plaintiff testified that he pulled Dolanides away and himself seized control of the throttle because of his assistant's failure to answer and was then stabbed. Dolanides, on the other hand, while vague as to the occurrence of the stabbing itself, testified that he was in the act of responding to the signal when plaintiff attacked him.
Almost all of the numerous charges requested and refused were variant statements of the plaintiff's contention that the steamship company is liable on a basis of respondeat superior for the acts of Dolanides or because of its own negligence in retaining a dangerous employee. It is well established that a master will not be liable for the negligent acts of his servant unless they are performed in the course of or in furtherance of the master's business; the fact that the injury is done during the continuance of employment is not enough. Davis v. Green, 260 U.S. 349, 43 S.Ct. 123, 67 L.Ed. 299; Bonsalem v. Byron S. S. Co., 2 Cir., 50 F.2d 114; Lykes Bros. S. S. Co. v. Grubaugh, 5 Cir., 128 F.2d 387, modified on rehearing 5 Cir., 130 F.2d 25.
Here the evidence produced by both parties, although conflicting on other points, was rightly interpreted by the District Court as showing that the stabbing was the culmination of a personal difference between plaintiff and Dolanides. The cook, plaintiff's own witness, testified that the animosity had existed throughout the voyage and that Dolanides had complained to him on two or three occasions of plaintiff's general...
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