Drewery v. Daspit Bros. Marine Divers, Inc.
Citation | 317 F.2d 425 |
Decision Date | 15 June 1963 |
Docket Number | No. 19633.,19633. |
Parties | Melvin E. DREWERY, Jr., Appellant, v. DASPIT BROS. MARINE DIVERS, INC., Appellee and Cross-Appellant. Melvin E. DREWERY, Jr., Appellant, v. SHELL OIL COMPANY, a Corporation, Appellee. |
Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Richard Joseph McGinty, Jr., Baldwin, Haspel, Molony, Rainold & Meyer, Robert R. Rainold, New Orleans, La., for appellant.
Robert B. Acomb, Jr., Edmond Salassi, of Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, La., for Shell Oil Co.
George B. Matthews, Lemle & Kelleher, New Orleans, La., William P. Schuler, Tapper, Schuler & Perez, Arabi, La., for Daspit Bros. Marine Divers, Inc.
Before RIVES, CAMERON and BELL, Circuit Judges.
The sole issue left in these cases after dismissal by the appellant is the validity of the judgment in favor of Shell Oil Company, third-party plaintiff, against Daspit, as third-party defendant, in the amount of the recovery of appellant from Shell Oil Company.
Appellant, a professional diver in the employ of Daspit, was injured during diving operations while attempting to locate a severed underwater oil line in the Gulf of Mexico for Shell. Suits brought against his employer, Daspit, under the Jones Act, and against Shell in maritime tort were consolidated for trial and appeal. He failed to prevail on the Jones Act claim, but did prevail on the maritime tort claim against Shell. The judgment in his favor against Shell was entered pursuant to a jury verdict. The judgment over in favor of Shell under the third-party complaint against Daspit was based on the terms of an indemnity clause contained in a contract between Shell and Daspit, whereunder Daspit was to inspect and repair the underwater pipeline. The indemnity question was not submitted to the jury, but was determined by the court after the jury had answered special interrogatories in connection with the main case. The material portion of the indemnity contract follows:
The jury, inter alia, found in the main case that Daspit was not negligent, and that the proximate cause of the accident was the combined negligence of Shell and appellant; with Shell contributing twenty per cent and appellant eighty per cent to the accident. The recovery was apportioned accordingly.
The judgment over was rendered by the District Court on the promise of indemnity contained in the contract for any loss resulting from the successful claim of a Daspit employee injured during the performance of the contract by the concurrent negligence of Shell and Daspit. The negligence of appellant, the employee, as found by the jury, and with which finding the District Court agreed, in contributing to his own injury was imputed to Daspit, thus making concurrent negligence.1
It is undisputed that appellant remained the employee of Daspit during the performance of the work under the contract, that he was injured during the course of his employment and in connection with the performance of the contract, and that Daspit was not negligent otherwise than through appellant. And there is no contention that Daspit, if concurrently negligent, was not liable under the contract to indemnify Shell for its own negligence.
It is the position of Daspit that the doctrine of imputed negligence is inapplicable since the negligence was that of the employee toward himself. The argument goes that a person may not commit a tort on himself; and absent tort, negligence is not imputable. Prosser on Torts, 2 ed., § 62, p. 350.
It is the position of Shell, on the other hand, that the imputed negligence doctrine embraces not only a tort against a third person by an employee, but a situation such as this of imputation for the purposes of contractual indemnification where the negligence is that of an employee contributing to his own injury. This contention is premised on the view that imputed negligence gives rise to primary liability, rather than mere secondary or derivative liability. See Jones v. Kinney, W.D.Mo., 1953, 113 F. Supp. 923; 57 C.J.S. Master and Servant § 570c, p. 299; Restat., Law of Agency 2d, § 217(b) ii; and Mechem, Outlines of the Law of Agency, § 362, p. 245.
Daspit relies on Trenkle v. Compagnie Generale Transatlantique, S.D.Cal., 1960, 179 F.Supp. 795, an action over by a ship against a stevedoring company. The breach of contract relied on by the ship was that the injured workman furnished by the stevedoring company was unfit for the work. The court found no evidence to support this position, but that the real cause of the injury was the unseaworthiness of the ship. The question of imputation to the employer of the negligence of the worker causing injury to himself was not presented, nor has it been presented in any of the other reported Ryan doctrine cases insofar as we can ascertain. Ryan Stevedoring Co., Inc. v. Pan-Atlantic S. S. Corp., 1956, 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133; and Weyerhauser S. S. Co. v. Nacirema Operating Co., 1958, 355 U.S. 563, 78 S.Ct. 438, 2 L.Ed.2d 491. In fact, we have found no controlling authority nor has any been called to our attention, and the District Court cited none. There is even a dearth of treatise discussion on the subject.
We therefore approach the question as one of first impression. And we do so in the narrow range of the indemnity contract and the special finding allocating causative negligence as between Shell and Daspit's injured employee. No indemnification is indicated under the contract where the injury or loss has resulted from the negligence of Shell without negligence or fault on the part of Daspit. But the negligence of the employee contributed to the extent of eighty per cent to his injury, and the question is whether his negligence may be imputed to Daspit, thereby creating liability on its part under the indemnity contract.
The doctrine of imputed negligence applies in admiralty. Standard Oil Co. v. Anderson, 1909, 212 U.S. 215, 29 S. Ct. 252, 53 L.Ed. 480. And as we said in Arline v. Brown, 5 Cir., 1951, 190 F.2d 180:
The "doctrine of imputed negligence rests upon the maxim that he who acts through another acts himself."
It is settled that the imputed negligence doctrine may create liability on the part of the master for the tortious act of the servant toward another. Standard Oil Co. v. Anderson, supra. It is likewise settled that a master may be barred by the contributory negligence of his servant from recovery against a third-party tort-feasor. Pass v. Firestone Tire and Rubber Co., 5 Cir., 1957, 242 F.2d 914; Liverpool and London and Globe Ins. Co. v. Otis Elevator Co., 4 Cir., 1949, 175 F.2d 832; Restat. Law of Torts, § 486, p. 1269; Restat., Law of Agency, 2d., § 317; Prosser on Torts, 2d Ed., § 54, p. 299.
"It is a universal rule that the negligence of a servant acting as such within the scope of his employment which concurs with the negligence of a third person and contributes to cause injury to his master is imputed to the master." 65 C.J.S. Negligence § 162.
These authorities make it clear that imputed negligence, based as it is on a fiction, works to hold the master for...
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