Brannan v. Great Lakes Dredge & Dock Co.

• Decision Date: 20 June 1958
• Docket Number: No. 37404,37404
• Parties: Charles C. BRANNAN, Appellant, v. GREAT LAKES DREDGE & DOCK COMPANY, Respondent.
• Court: Minnesota Supreme Court

Page 166

91 N.W.2d 166

253 Minn. 28

Charles C. BRANNAN, Appellant, v. GREAT LAKES DREDGE & DOCK COMPANY, Respondent.

No. 37404.

Supreme Court of Minnesota.

June 20, 1958.

Syllabus by the Court

1. Based upon all the evidentiary facts upon which plaintiff relies in the instant case and the liberal construction of the Jones Act, 46 U.S.C.A. § 688, reflected in a long of Federal decisions including the latest pronouncements of the United States Supreme Court, it seems clear that the questions whether the Mogul was in navigation when the accident occurred and whether plaintiff was a 'seaman' and a 'member of a crew' thereon on the date of the accident, as well as the question of defendant's negligence, present fact issues for jury determination.

2. We reach the conclusion that the record presented an evidentiary basis for jury findings on the aforesaid issues and that there must be a new trial on all issues.

William H. DeParcq, Robert E. Anderson and Robert, N. Stone, Minneapolis, for appellant.

Meagher, Geer, Markham & Anderson, O. C. Adamson, II, Minneapolis, for respondent.

NELSON, Justice.

Two actions were involved here. One action was to recover money damages for personal injuries sustained on July 12, 1955, by plaintiff, Charles C. Brannan, allegedly as a result of the negligence of defendant, Great Lakes Dredge & Dock Company, and of the unseaworthy condition of the dredge Mogul, of which defendant was the owner and upon which defendant employed plaintiff. The other action was to recover damages for maintenance and cure for the period of plaintiff's disability resulting from the injuries. The cases were tried together, and at the close of plaintiff's testimony the court directed a verdict for defendant in each case. The plaintiff thereafter moved the court below for an order setting aside the directed verdict and granting the plaintiff either judgment notwithstanding said verdict and a new trial on the issue of damages only or, in the alternative, a new trial on all issues. Plaintiff appeals from the order denying his motion.

The plaintiff, a resident of Superior, Wisconsin, 54 years of age, was injured when 'mousing' a cable, pursuant to defendant's instructions while in its employ on its dredge. The wiring he was using broke, causing him to fall backwards through an unprotected opening in the upper deck which resulted from the removal of a muffler. Plaintiff fell to the deck below, landing on a large spool. He sustained a skull fracture and other serious injuries.

The defendant is a corporation engaged in operating dredges on the Great Lakes. Between the years 1932 and 1955, the year of the accident, plaintiff had worked on numerous dredges as a deckhand, as a scowman, as a fireman, and as a watchman. He first went to work for defendant on the Mogul in November 1953 as a watchman while the dredge was tied up at the Carnegie dock site at the Duluth-Superior harbor. He was hired by John Koster, the captain of the Mogul. He worked in the capacity of a watchman 8 hours daily, 7 days a week. His duties consisted of firing and keeping up steam in a shorebased boiler which was maintained alongside the dredge through the winter to keep up enough heat in the vessel to prevent freezing and of generally keeping an eye on the vessel. He was required to inspect aboard the vessel once each hour. He was laid off by Captain Koster in April 1954, but was called back by him after a 30-day layoff and was assigned to the duties of and classified as a deckhand. These duties included replacing pontoons, replacing shore pipes, keeping the vessel free of rock and slag drippings, keeping the vessel clean, and changing buoys and markers. When plaintiff returned to work as a deckhand, the Mogul was in the process of being cleaned up, painted, and repaired for the purpose of going to work. After about 2 weeks it was moved into the Knudsen Shipyards in the same harbor where the crew continued painting and did some repair work on the spuds (part of the dredge that is used to anchor the vessel to the bottom) as ordered from time to time by defendant. After 2 or 3 weeks the Mogul was dispatched to dredge the Silver Bay harbor on Lake Superior. It was towed to Silver Bay by a tug. Plaintiff went along as an oiler, his duties consisting of oiling the spuds, auxiliary engines, and lower engines as well as the top of the A-frame and the boom.

The Mogul returned to Superior in October 1954, tying up at the Lamborn Avenue bridge site. Until November 10th or 12th plaintiff worked at getting the Mogul ready for the winter and thereafter remained as watchman through the winter of 1954. About the first week in May 1955 the Mogul was moved from the Lamborn Avenue bridge site to the Knudsen Shipyards in the same harbor, a distance of approximately 1 or 2 blocks for the purpose of undergoing repair. Before the dredge went into drydock, the boom, the A-frame, and the spuds were removed and the engine dismantled and removed. Additional structure was installed on the boom to give it extra rigidity; minor work was done on the shivs of the A-frame; and cracks in the spuds were welded. The old diesel engine, used for operation of the boom and dipper, was dismantled and removed. The vessel was then moved into drydock and while in drydock work was done in repairing the lower portion of the spud well casings. The hull of the vessel was sandblasted and painted. After this was done the Mogul was put into a slip at one side of the boat works while wiring and piping was done and a new engine installed. The vessel's auxiliary engine was never removed. It appears that no structural work was necessary in the engine room to accommodate the new diesel.

At the time of plaintiff's injury July 12, 1955, the Knudsen Shipbuilding & Dry Dock Company had about 25 men in their employ working on the Mogul or on shore in connection with work on the Mogul under the charge of a repair foreman. At no time during this period did the repair foreman or anyone else from that company, or from the company doing the electrical work, have or exercise any control over plaintiff or the other men comprising Captain Koster's crew. During this period and at the time of plaintiff's injury there were approximately ten men employed by the defendant on board the Mogul, including Captain Koster' the chief engineer; three other engineers; two oilers; two deckhands, one of which was plaintiff Brannan; and Gene Koster, a son of the captain. All supervision and control of the crew was exercised by defendant through the captain of the vessel. Members of the crew did, however, assist in the removal of parts of the vessel to the extent of loosening certain attachments which would thereafter be removed by the shipyard employees.

By July 12, 1955, the Mogul had been removed from drydock and was docked at the west slip, which is a part of Lake Superior constituting navigable waters. Between the time it had left its winter quarters and been moved by tugs (the usual mode of locomotion of a dredge) to the docks for a refitting job and the time of plaintiff's injury, the Mogul was moved in and out of drydock. It was moved under its own power by use of an auxiliary engine, at no time removed, and deck winches.

The work plaintiff was doing at the time he was injured was under the direction of Captain Koster. Plaintiff was being paid at the time as a deckhand, receiving a deckhand's rate of pay. During the period of repair, six crew members lived aboard the vessel, the plaintiff and the other crew members lived at home in Duluth or Superior while the ship was in port. When this accident occurred all work in the drydock had been completed. The crew was finishing the repairs necessary to its undertaking a major project on the St. Lawrence Seaway. So far as the record discloses, no claim is being made by defendant that the captain, the chief engineer, the oilers, or any one of the other 10 crew members, except Brannan, was a harbor worker rather than a seaman and a member of the crew. All were engaged in the same type of work and in accomplishing the same objective except the captain, whose duties were supervisory in character.

The record indicates that the Mogul did not actually get underway to undertake its project on the St. Lawrence Seaway until after Labor Day in 1955 when a test run was made to determine if it was seaworthy for the purposes for which it was to be used. The trial court was of the opinion that the Mogul was not in navigation until that time, even though it had undergone repairs to make it seaworthy and even though between April and the time of plaintiff's injury in July the Mogul had been moved in and out of drydock under its own power. The trial court took the view that since the Mogul was not in navigation on July 12, 1955, plaintiff did not classify as a 'seaman' and a 'member of a crew' to bring him within the purview of the Jones Act, 46 U.S.C.A. § 688, and remove him from the operation of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901, et seq. The trial court stated that the fact that he anticipated becoming a member of the crew if the dredge was again put in navigation was not important. The trial court appears to have reached the conclusion that the situation had resolved itself purely into a question of law; that the plaintiff came within the purview of the Longshoremen's and Harbor Workers' Compensation Act; and that that was his exclusive remedy.

The plaintiff in its assignment of errors contends that the trial court erred (1) in holding as a matter of law that the plaintiff was not a seaman on a vessel in navigation under the meaning of the Jones Act and in directing verdicts for the defendant; and (2) in denying plaintiff's motion for a new trial.

The rule that on a motion for a directed verdict the evidence must be viewed in the light most favorable to the party opposing the motion applies here. A motion for a directed verdict...