Duart v. Simmons

• Decision Date: 27 November 1918
• Parties: DUART v. SIMMONS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

231 Mass. 313

121 N.E. 10

DUART

v.SIMMONS.

Supreme Judicial Court of Massachusetts, Bristol.

Nov. 27, 1918.

Exceptions from Superior Court, Bristol County; Hugo A. Dubuque, Judge.

Action of tort, for personal injuries in unloading coal from a vessel, by Joe Duart against La Forrest L. Simmons. There was verdict for plaintiff, and defendant excepts. Exceptions overruled.

The instructions as to defendant employer's responsibility for the rope whose breaking caused the injuries sued for, which instructions are referred to in the last paragraph of the opinion, were as follows:

Now, as to the manner of doing the work. You have had that explained to you by several witnesses. Something has been said about not preserving the ends of the rope where it broke, and not producing Costello, who was the man that guided the rope. It was announced this morning by the defendant's counsel that Mr. Costello had not been called; that he was an old man, and that he could add nothing to what had already been said. It is argued on the other hand on the part of the plaintiff that if Costello knew anything that was favorable to the defendant he would have been called here, and not being called you have a right to draw the inference that what he knew would not be favorable to the defendant's side. Well, it is for you to say as to what inference should be drawn about that. As to keeping the ends of the rope, Mr. Simmons testified that the ends that parted were cut off, I think he said about an inch, and that he did not think of saving it. Whether it would have thrown any light upon the parting of the rope or not the evidence does not tend to show. I do not know as any explanation has been given as to the cause of the parting of the rope by anybody. At any rate the parting of the rope tends to show that it was not strong enough for doing the work that it was called upon to do evidently at that time.

Now, whether it was something that the defendant could guard against by the exercise of proper care is a question of fact. It is claimed by the plaintiff that he put in charge the man Pond, who was an incompetent man, knew nothing about ropes or cables, and knew very little about his work. He might be a very good man to deliver coal from a coal team from the coal yard to various parts of Somerset and elsewhere, but he was not a man who was competent to do the work. Well, that is a question of fact for you to determine upon the evidence. You have seen him on the stand, he has testified and told you what he knew, and told you what he did not know, and it is for you to say as to whether that man was the proper kind of a man to leave in charge. Mr. Simmons says that he went there every day and looked over the apparatus. How much time he spent he told you, I think from one to five minutes or more; that he looked arount to see that the cable was all right, that everything was all right. Whether he went over the rope inch by inch it is for you to say upon the evidence. What care did he use? He was required by law to use reasonable care, and reasonable care is the care that a reasonably prudent man, not the most prudent man, the care that a reasonably prudent man would use under similar and like circumstances.

If the defendant in the exercise of the care of a reasonable man, the average reasonably prudent man, should have seen that chafing would result from the work, and that chafing would reduce the strength of the rope, and he did not use that care, then he may be found to be guilty of negligence. In other words, if the cause of the parting of the rope, the breaking of the rope, was due to any carelessness either in selecting the rope, or in not inspecting it, or in the negligent manner in which the operation was made, then the defendant was negligent. I do not mean to intimate that there was any negligent manner in operation, but it is a question of fact for you.

D. R. Radovsky, of Fall River, for plaintiff.

White & White, of Taunton, for defendant.

RUGG, C. J.

The plaintiff received injuries in the course of his employment by one Davis, who by independent contract furnished the plaintiff and two other laborers to the defendant for work in shoveling coal in the hold of a schooner tied up at the defendant's wharf. The contract of Davis as independent contractor was for the performance of a part of the business carried on by the defendant on his own premises. The defendant was a subscriber under the Workmen's Compensation Act. St. 1911, c. 751. The plaintiff's employer, Davis, was not a subscriber under that act. It is urged that the plaintiff is confined to the remedies afforded by the act. Its terms are broad enough to include an employé such as was the plaintiff, working in connection with the discharge of the cargo of a vessel engaged in interstate or foreign commerce. In this connection only ‘masters on and seamen on vessels engaged in interstate and foreign commerce’ are excluded expressly from the operation of our act by its terms. St. 1913, c. 568; Morrison v. Commercial Tow Boat Co., 227 Mass. 237, 116 N. E. 499.

[2] The accident occurred in the course of the employment of the plaintiff in the discharge of a cargo of coal from a vessel engaged in interstate commerce while she was lying in navigable waters. His work and his injury were maritime in their nature. Atlantic Transport Co. v. Imbrovek, 234 U. S. 52, 59, 60, 34 Sup. Ct. 733, 58 L. Ed. 1208, 54 L. R. A. (N. S.) 1157; Clyde S. S. Co. v. Walker, 244 U. S. 255, 37 Sup. Ct. 545, 61 L. Ed. 1116. By article 3, § 2, of the Constitution of the United States, the judicial power of the United States extends ‘to all cases of admiralty and maritime jurisdiction.’ The Judicial Code of the United States (Act of March 3, 1911, c. 231, 36 U. S. Stats. at Large, 1087), by section 256, cl. 3, vests exclusive jurisdiction in the federal courts ‘of all civil causes of admiralty and maritime jurisdiction, saving to suitors, in all cases, the right of a common-law remedy, where the common law is competent to give it.’ It was decided in Southern Pacific Co. v. Jensen, 244 U. S. 205, 37 Sup. Ct. 524, 61 L. Ed. 1086; L. R. A. 1918C, 451, Ann. Cas. 1917E, 900, that the compulsory Workmen's Compensation Act of New York (Consol. Laws, c. 67) was unconstitutional so far as its terms applied to maritime injuries. It is earnestly argued that the case at bar is distinguishable from the Jensen Case. The grounds urged are that our act is permissive and not mandatory, as was the New York law. Under our act it is elective both with the employé and likewise with the employer whether they shall become subject to its terms. An employer, who chooses to become a subscriber under our act, is liable to the employés of his subcontractor situated with reference to his work as was the plaintiff. He has elected so to become liable. The plaintiff as employé of the subcontractor, by failing to give notice to the employer as required by part 1, § 5, of the act, has decided to become bound by the act and to waive his common-law right. White v. George A. Fuller Co., 226 Mass. 1, 114 N. E. 829;Young v. Duncan, 218 Mass. 346, 106 N. E. 1. These are the cogent arguments put forward in behalf of the defendant.

The Workmen's Compensation Act (except in part 1) is not an amendment to the common law, but the establishment of heretofore unknown obligations, compensations and methods of procedure, all differing from and in place of those afforded by the common law. The general purpose of the act was to substitute, in cases to which it is applicable, for common-law or statutory rights of action and grounds of liability, a system of money payments based upon the loss of wages by way of relief for workers receiving injury in the course of and arising out of their employment. As stated in the ‘Report of the Commission on Compensation for Industrial Accidents' submitted in 1912, which framed the act adopted by the Legislature (without change except in ...