Cadle v. United States, 1854.

• Decision Date: 18 April 1946
• Docket Number: No. 1854.,1854.
• Citation: 65 F. Supp. 288
• Parties: CADLE v. UNITED STATES.
• Court: U.S. District Court — Northern District of California

65 F. Supp. 288

CADLE v. UNITED STATES.

No. 1854.

District Court, N. D. California, N. D.

April 18, 1946.

Gladstein, Grossman, Sawyer & Edises, of San Francisco, Cal., for libelant.

Brobeck, Phleger & Harrison and R. L. Miller, all of San Francisco, Cal., for respondent.

WELSH, District Judge.

Libelant alleged in his complaint that he was a member of the crew of the S. S. Lurline, employed as such through the War Shipping Administration; that he left San Francisco on September 21, 1943, and that while the vessel was in the Indian Ocean on or about November 6, 1943, he became ill. He charged that respondent was negligent in that it supplied to him food unfit for human consumption.

A duodenal ulcer from which libelant suffers is alleged to be the direct and proximate result of the negligence of respondent in supplying unfit food.

Libelant testified on direct examination that hamburgers and steaks served to the crew were not sufficiently cooked; that rice contained weevils, oatmeal contained cockroaches, chicken and turkey were tainted and that broccoli was covered with some kind of bug or aphis.

However, on cross-examination he made such admissions as:

"Q. Did you eat the cockroaches that you found in the food? A. Naturally, no.

"Q. Did you eat the weevils that you found in the rice * * * before you got sick? A. No.

"Q. You didn't eat any of the cockroaches that you found in the other food, is that correct? A. I did not.

"Q. And when it (poultry) had an offensive taste you didn't eat it, is that correct? A. That is correct.

"Q. And any of the food that was served to you aboard the ship that had an offensive odor you didn't eat, is that correct? A. That is right.

Even on re-direct examination, he reiterated — "after I saw any aphis in the broccoli I didn't eat any broccoli. I didn't eat any rice pudding or the oatmeal when I detected cockroaches in it."

This leaves libelant's case practically devoid of any evidence in support of the allegations of negligence. He did state that he ate certain potatoes and hamburger when they did not taste exactly right. Nevertheless, it is difficult to see how that eating by him could be chargeable as negligence against respondent. If any culpability existed in that behalf it was solely that of libelant in not exercising due restraint of his appetite for his own physical well being.

Libelant's own testimony showed that respondent actually did serve unobjectionable foods, and a variety thereof, at each meal. Counsel for respondent introduced in evidence menus for various days of the week, upon examining which libelant stated that they fairly represented the food served on board the Lurline during the trip. These menus listed items such as prunes, pineapple juice, wheat-hearts, dry cereals, eggs, bacon, cinnamon rolls, Danish pastry and toast for breakfast; lettuce, soup, stew, lamb curry, meat balls and spaghetti, and vegetables for luncheon; and mixed fruit cocktail, sardines, mixed olives, soup, roast leg of spring lamb and roast beef for dinner. Libelant's testimony to the effect that practically all of the foods listed were available at the meals specified, and that none was objectionable except hamburger, potatoes, oatmeal and rice, was directly contrary to the allegations of his complaint.

Neither was other evidence introduced in his behalf persuasive. Earl Joseph Castro, although called by libelant, corrobated his testimony as to the variety of the foods available at mess.

Philip E. Bent gave testimony for libelant by deposition wherein he stated that there was nothing wrong with the cereals and the "bacon and eggs and ham and eggs were all right."

Executive Chef Paul Koy testified on behalf of respondent that all food taken on board had been inspected by government agencies on the dock and that he made inspections each time it was prepared to serve. He found no spoiled or unfit food being served on the trip. He recalled that the rice and oatmeal for the trip in question were ordered fresh because he had sold all the rice on hand when arriving at port from a previous voyage. He also remembered that the oatmeal was fresh because the contemplated trip was a long one and a larger supply of food was needed.

Libelant's claim to damages is grounded on negligence. It is fundamental that a seaman's right to recovery from an employer must be based on either negligence or unseaworthiness of a vessel or its appliances. Vojkovich v. Ursich, 49 Cal. App.2d 268, 271, 121 P.2d 803.

Libelant had the burden of establishing negligence by a preponderance of the evidence. Sandoval v. Fruit Express Co., 1944 A.M.C. 580, 583.

Even if libelant had established that food unfit for human consumption had been served, that would not necessarily constitute negligence. The law requires that provisions furnished a crew shall be in sufficient amount and of suitable quality. The John L. Dimmick, 13 Fed.Cas. page 69 No. 7,355.

However, an owner is not liable for bad cooking where good food is provided. The Silver Shell, D.C., 255 F. 340, 341.

While the burden of proof is on the owner to show that a ship is properly provisioned (Miller v. Lykes Bros.-Ripley S. S. Co., 5 Cir., 98 F.2d 185, 186), a seaman who alleges that bad food caused his illness must meet the issue of causation. "As to this issue, the ordinary rules of evidence applied, and the proof to sustain recovery must be more than mere speculation or conjecture." Miller v. Lykes Bros.-Ripley S. S. Co., supra.

It was said in the adjudicated case: "The most that any of appellant's medical witnesses would say was that there was a possibility or strong likelihood that food poisoning could cause polycythemia. Appellant has not sustained the burden on this...