Cain v. Alpha SS Corporation

• Citation: 35 F.2d 717
• Decision Date: 20 August 1929
• Docket Number: No. 367.,367.
• Parties: CAIN v. ALPHA S. S. CORPORATION et al.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

35 F.2d 717 (1929)

CAIN v. ALPHA S. S. CORPORATION et al.

No. 367.

Circuit Court of Appeals, Second Circuit.

August 20, 1929.

Hatch & Wolfe, of New York City (Carver W. Wolfe, of New York City, of counsel), for appellants.

Thomas J. Cuff, of New York City (Vine H. Smith, of New York City, of counsel), for appellee.

Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

SWAN, Circuit Judge.

This is an action at law for an assault upon a seaman by a subordinate officer, while both were employed upon an American vessel owned by one of the defendants and operated or controlled by the others. It was committed on shipboard when the vessel lay in a Venezuelan port. Jurisdiction of the District Court is founded upon diverse citizenship. The parties have assumed, and rightly so, that the law applicable to this situation is the general maritime law of the United States. See Roberts v. Skolfield, Fed. Cas. No. 11,917; Port of New York Stevedoring Corp. v. Castagna, 280 F. 618, 624 (C. C. A. 2); Chelentis v. Luckenbach S. S. Co., 247 U. S. 372, 384, 38 S. Ct. 501, 62 L. Ed. 1171; Carlisle Packing Co. v. Sandanger, 259 U. S. 255, 259, 42 S. Ct. 475, 66 L. Ed. 927; Northern Coal Co. v. Strand, 278 U. S. 142, 144, 49 S. Ct. 88, 73 L. Ed. 232. Compare critical articles in 36 Harv. Law Rev. 777; 21 Columbia Law Rev. 645; 55 Am. Law Rev. 685; 53 Am. Law Rev. 749.

The case was left to the jury upon the theory that, if Jackson, the second assistant engineer, actually struck fireman Cain, not in the course of a private brawl, but in the exercise of his authority over him as his superior officer, the defendants would be liable. This theory the defendants dispute, contending, first, that it misstates the rule of the maritime law; and, second, that, even if the law be as stated, the evidence was insufficient to justify a finding that Jackson was acting within the scope of his authority in striking the blows with which he was charged. Both questions were properly saved for review by exceptions to the court's denial of motions to dismiss the complaint.

The alleged insufficiency of the facts may conveniently be considered first, for, if that be disposed of favorably to the defendants, it will be unnecessary to determine the more difficult question of law. Cain's testimony is that he started to go down to the engine room some 40 minutes late for his watch; that on the first landing of the stairway he met the first assistant engineer, and became engaged in an altercation with him concerning his tardiness; that he (Cain) retreated to the top of the stairs, and from there saw the first assistant engineer talking to Jackson, who was the officer on duty in the engine room; that the latter thereupon proceeded up the stairway toward him. Cain claims Jackson was drunk. What happened when Jackson reached the top of the stairs Cain relates as follows:

"He told me I was a bit late. I says to him, `Yes, I am a bit late, I overslept;' and he said, `Late be damned;' and he says to me, and he struck me across the head with a monkey wrench. I fell back like this (indicating), and as I fell back like that, he tapped me over the eye with the monkey wrench. I fell again, right on the deck, and then I got up and I run on my hands and knees away from him. * * *"

Jackson pursued him, saying, "I will teach you to go down on watch, you bastard." Cain ran to the captain and reported that he had been struck by Jackson. The captain, however, says that Cain explained later that his wounds were the result of falling on the deck. This was also Jackson's contention. He denied striking any blow whatever. He says the first assistant told him Cain was drunk; that he thereupon went up the stairs to get another fireman; that Cain had his head in the port engine room door, and "I hollered to him to come on down." Cain did not obey, and Jackson says that by the time he had reached the top of the stairs Cain had fallen down, and was getting to his feet and starting to run away. He admits that he followed Cain along the deck, shouting to him to stop.

Without reciting more of the evidence, it will suffice to say that, assuming the law to be as the court stated it, the evidence raised issues for the jury. Jackson's duty was to get Cain to work, if he thought Cain was able to work. The jury were entitled to find that he approached Cain for that purpose. He himself says, "I hollered to him to come on down." They were also entitled to believe Cain's version of what transpired when the two men met at the top of the stairway. Hence they might infer that Jackson gave the blows for the purpose of compelling Cain's immediate attendance and in connection with reprimanding him for his tardiness. Although excessive violence was used, this is not conclusive that Jackson was not acting in the ship's business. The evidence made it a jury question whether he committed the assault as an officer of the ship, in an effort to maintain discipline and obtain a full engine room crew for the watch of which he was in charge, or struck the blows in a private brawl. In Davis v. Green, 260 U. S. 349, 43 S. Ct. 123, 67 L. Ed. 299, a very different situation was presented. There the killing of the conductor resulted from the engineer's personal rancor, and was not in furtherance of the employer's business. Here we must accept the jury's verdict as a finding that Jackson's blows were not given in a private brawl, but in the exercise of his authority as an officer. Hence we must determine the legal question first mentioned.

The rule of the common law, as established by the weight of modern authority, imposes liability upon an employer for an assault committed by one of his employees upon another, when the former is in a position of authority and acts within the general scope and line of his employment. Encarnacion v. Jamison, 251 N. Y. 218, 167 N. E. 422; Richard v. Amoskeag Mfg. Co., 79 N. H. 380, 109 A. 88, 8 A. L. R. 1426; Fleming v. Tarboro Knitting Mills, 161 N. C. 436, 77 S. E. 309; Rogahn v. Moore Mfg. Co., 79 Wis. 573, 48 N. W. 669; Jebeles-Colias Confectionery Co. v. Booze, 181 Ala. 456, 62 So. 12; Mechem, Agency (2d Ed.) § 1960 et seq.; annotation in 18 L. R. A. (N. S.) 416; 7 Harv. Law Rev. 383 (for historical review by Prof. Wigmore). The plaintiff asserts that the same principle obtains in the maritime law. This the defendants deny, their contention being that a seaman's rights are exclusively those stated in The Osceola, 189 U. S. 158, 23 S. Ct. 483, 47 L. Ed. 760, namely, wages, maintenance, and cure, if the seaman falls sick or is wounded in the service of the ship, regardless of the cause of his wounds, and indemnity for injuries received in consequence of unseaworthiness of the ship, or failure to supply and keep in order proper appliances appurtenant thereto.

Admittedly, the propositions laid down in the opinion are much broader than were required by the actual decision, which was that a seaman cannot maintain a libel in rem to recover indemnity for personal injuries caused by the negligence of the master of the vessel. But the dicta were a considered exposition of the maritime law after a careful historical review of British and European rules, as well as American. After referring to the fact that British law grants a seaman indemnity for injuries received through unseaworthiness of the vessel, the opinion states on page 171 of 189 U. S. (23 S. Ct. 485):

"Beyond this, however, we find nothing in the English law to indicate that a ship or its owners are liable to an indemnity for injuries received by negligence or otherwise in the service of the ship. None such is given in the Admiralty Court Jurisdiction Act of 1861, although it seems an action in admiralty will lie against the master in personal for an assault committed upon a passenger or seaman. The Agincourt, 1 Hagg. Adm. 271; The Lowther Castle, 1 Hagg. Adm. 384. This feature of the law we have ourselves adopted in general admiralty rule 16 now rule 15; see 28 USCA § 723, declaring that `in all suits for assault or beating on the high seas, or elsewhere within the admiralty and maritime jurisdiction, the suit shall be in personam only.'"

Having thus directed its attention to injuries resulting from assaults, it would seem strange for the court, had it thought an action in personam would lie against the owners, to have ignored this remedy and to have specified only that against the master. Nevertheless, the propositions laid down in The Osceola opinion cannot be deemed an absolutely complete statement of an injured seaman's rights against his vessel and her owners, in view of the later decision in The Iroquois, 194 U. S. 240, 24 S. Ct. 640, 48 L. Ed. 955. There it was held that for negligent treatment of a seaman after he was injured a right to indemnity existed. Moreover, the appellants concede another exception, namely, the seaman's right to indemnity when the master himself commits the assault. Numerous cases in the lower federal courts, though not with unanimity as to the propriety of a proceeding in rem, have held the ship or her owners liable to indemnify a seaman assaulted by the master, or by another with the master's acquiescence, or by a subordinate of notoriously brutal temper. In the last instance, when the injuries are inflicted by a notoriously brutal officer, liability has been rested upon the duty properly to man the vessel in order to make her seaworthy. The Rolph, 299 F. 52 (C. C. A. 8). For cases relating to liability of ship or owner when the assault is committed by the master himself, or by another in his presence, see The Marion Chilcott, 95 F. 688 (D. C. N. D. Wash.); The Lizzie Burrill, 115 F. 1015 (D. C. Ala.); The Astral, 134 F. 1017 (D. C. E. D. Pa.); The Sallie Ion, 153 F. 659 (D. C. E. D. Pa.); The Vueltabajo, 163 F. 594 (D. C. Ala.); The David Evans, 187 F. 775 (C. C. A. 9); Gabrielson v. Waydell, 67 F. 342 (C. C. E. D. N. Y.); Wolfe v. Thomas, 268 F. 464 (C. C. A. 6); see, also, ...