Caddy v. Texaco, Inc.

• Decision Date: 05 February 1973
• Citation: 363 Mass. 36,292 N.E.2d 348
• Parties: , 1973 A.M.C. 954 Wallace E. CADDY v. TEXACO, INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 348

292 N.E.2d 348

363 Mass. 36, 1973 A.M.C. 954

Wallace E. CADDY v. TEXACO, INC.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 5, 1972.

Decided Feb. 5, 1973.

Thomas J. Hunt, Boston, for plaintiff.

Blair L. Perry, Boston, for defendant.

Before TAURO, C.J., and REARDON, BRAUCHER, HENNESSEY and KAPLAN, JJ.

REARDON, Justice.

The plaintiff, a wiper in the engine room of the S.S. Texaco New Jersey, fell on oil on the deck of the engine room, sustaining injuries for which he brought this action of tort and contract. The declaration originally contained four counts, two of which were waived. There is now left a claim in count 1 for personal injuries under the Jones Act, 46 U.S.C. § 688 (1964), and a claim in count 2 for personal injuries for a breach of the warranty of seaworthiness under the general maritime law. The defendant's answer included a general denial, and alleged contributory negligence and assumption of the risk. At the conclusion of the plaintiff's case the trial judge granted the defendant's motion for directed verdicts on counts 1 and 2. The case is here on exceptions to that action.

On the day when he sustained his injuries the plaintiff reported to work at 8 A.M. and as usual emptied rubbish buckets and cleaned oil from the deck in the area of his station, one of his duties, until about 8:45 A.M. He then commenced to clean the walls of the engine room as he had been directed and did so until 2 P.M., changing the water in his buckets three or four times. To make these changes he had 'to go to the deck above which had more than one access route.' He fell when returning to the deck on which he was working, having arrived at the bottom of a 'stairway.' He landed on his back and saw upon getting up 'his heel mark in the accumulated oil . . . (which) was dripping from a generator located above the deck.' This condition had existed since the plaintiff joined the vessel, and there had been complaints by him and others prior to his accident.

This case is similar to the 1966 cases of Bono v. Ocean Wave, Inc., 350 Mass. 470, 215 N.E.2d 666, and Boudreau v. Boat Andrea G. Corp., 350 Mass. 473, 215 N.E.2d 907. The Bono case in particular is quite close on its facts. The declaration in that case contained two counts like those before us. There had been complaints about a condition affecting the engine and the clutch of the vessel. The condition was not repaired and eventually caused the plaintiff's injuries. The court held that there was error in directing a verdict on each count, and the principles it discussed are applicable in this case.

Initially it may be stated that State and Federal courts have concurrent jurisdiction 'in actions to recover under the Jones act and general maritime law, but Federal principles of law apply.' Keough v. Cefalo, 330 Mass. 57, 60, 110 N.E.2d 919; Engel v. Davenport, 271 U.S. 33, 37, 46 S.Ct. 410, 70 L.Ed. 813. Unseaworthiness is technically a nonjury admiralty cause of action, but in a jury case the issue may be submitted to the jury when joined with an issue arising under the same facts under the Jones Act. Fitzgerald v. United States Lines Co., 374 U.S. 16, 18, 83 S.Ct. 1646, 10 L.Ed.2d 720.

The Jones Act provides that '(a)ny seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply.' It thus incorporates the provisions of 45 U.S.C. §§ 51--60 (1964) (the Federal Employers' Liability Act), and, as was stated in Rogers v. Missouri Pac. R.R., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493: 'Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee's contributory negligence.' It was open to the jury to find in this case causal connection between the dripping of oil, the knowledge of the plaintiff's superiors on the vessel of it, the failure to take steps to remedy the condition, and the plaintiff's fall and injury. Furthermore, the plaintiff, having received instructions to do the work which he was doing, which only in part was concerned with cleaning up oil and working with the available equipment, was not obliged to protest the procedure which he was instructed to follow. See Ballwanz v. Isthmian Lines, Inc., 319 F.2d 457 (4th Cir.), cert. den. sub nom. Isthmian Lines, Inc. v. Ballwanz, 376 U.S. 970, 84 S.Ct. 1136, 12 L.Ed.2d 84. In addition, ever since Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424, 59 S.Ct. 262, 83 L.Ed. 265, it has been clear that contributory negligence if shown is not a bar to recovery by a plaintiff claiming under the Jones Act, but goes only to mitigation of damages. Also, 45 U.S.C. § 54 (1964), provides in part, 'In any action brought against any common carrier . . . such employee shall not be held to have assumed the risks of his employment in any case where such injury or death resulted in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.' It is clear that this statute has abolished the defense of assumption of the risk in the actions to which it applies, Tiller v. Atlantic Coast Line R.R., 318 U.S. 54, 63 S.Ct 444, 87 L.Ed. 610, and the style is applicable here, as indicated above.

The defendant argues that the plaintiff cannot recover for injuries caused by a defect which he had been hired to remedy. This contention is, however, merely a new guise for the old doctrine of assumption of the risk. Furthermore, the cases cited by the defendant are inapposite. None involved a seaman claiming under the Jones Act for injuries sustained in the normal course of his duties...