Encarnacion v. Jamison

• Citation: 251 N.Y. 218,167 N.E. 422
• Parties: ENCARNACION v. JAMISON et al.
• Decision Date: 11 July 1929
• Court: New York Court of Appeals

251 N.Y. 218

167 N.E. 422

ENCARNACION

v.JAMISON et al.

Court of Appeals of New York.

July 11, 1929.

Action by Valentin Encarnacion against Inez M. Jamison and others, as executors of the estate of William A. Jamison, deceased, and others. From a judgment of the Appellate Division, Second Department (224 App. Div. 260, 230 N. Y. S. 16), reversing on the law a judgment of the Trial Term entered on the verdict of a jury against defendants' testator and dismissing the complaint, plaintiff appeals.

Judgment of Appellate Division reversed, and that of the Trial Term affirmed.

Appeal from Supreme Court, Appellate Division, Second department.

James A. Gray, of Brooklyn, for appellant.

Theodore H. Lord, of Brooklyn, Daniel Miner and James B. Henney, both of New York City, for respondents.

POUND, J.

Defendants' testator was an employing stevedore. Plaintiff was one of his employees who assaulted by the foreman or gang boss in charge of a gang engaged in loading a barge in the East river. The evidence justifies the inference that the foreman, in an effort to carry out his orders to keep the men busy and in furtherance of the employer's work, assaulted plaintiff, an employee subject to his orders, to make him hurry up with the work in which he was engaged. No question of negligence is in the case. The trial judge allowed a recovery, if the jury found that ‘the assault was committed in the furtherance of the master's work.’ Mott v. Consumers' Ice Co., 73 N. Y. 543, 547. The jury so found. The Appellate Division reversed, applying the fellow servant rule, and holding that there was no liability on the part of the employer, even though the foreman inflicted the injuries when he was engaged in hurrying up the work in obedience to the employer's orders.

[1] The cause of action, having arisen upon the navigable waters of the United States, is to be disposed of under the principles of maritime law. International Stevedoring Co. v. Haverty, 272 U. S. 50, 47 S. Ct. 19, 71 L. Ed. 157;Northern Coal & Dock Co. v. Strand, 278 U. S. 142, 49 S. Ct. 88, 73 L. Ed. 232;Resigno v. F. Jarka Co., 248 N. Y. 225, 162 N. E. 13. The foreman, in the management of the work intrusted to him by his employer, is a fellow servant of the members of the gang under his direction and control in the performance of the work. Crispin v. Babbitt, 81 N. Y. 516, 37 Am. Rep. 521. For injuries suffered by the men placed under the authority of such a one as the result of his negligence or misconduct in the furtherance of the employer's business, it has been held that the employer is not liable to indemnify the injured employee. Gabrielson v. Waydell, 135 N. Y. 1, 31 N. E. 969,17 L. R. A. 228, 31 Am. St. Rep. 793. Such was the rule of the common law and of the admiralty law as defined by this court.

The learned counsel for the appellant with admirable candor concedes that no fault can be found with the court below for adhering to the rule as thus stated, but he asks this court to change the law ‘to establish a better rule of conduct and give place to a higher degree of justice.’ Long and firmly established doctrines are not so easily disposed of, although the authority of recent cases of first impression has at times been disregarded in order to conform the decisions of the court to the actualities of industrial and business life. Fitzwater v. Warren, 206 N. Y. 355, 99 N. E. 1042,42 L. R. A. (N. S.) 1229;Klein v. Maravelas, 219 N. Y. 383, 114 N. E. 809, L. R. A. 1917E, 549, Ann. Cas. 1917B, 273. The Gabrielson Case was decided by a divided court with a strong dissent. It has been subjected to much adverse criticism. While it may no longer be regarded as authority for the proposition of general maritime law that the misconduct of the captain of a ship in his care of the seamen under him is a risk assumed by the seamen for the consequences of which the owners are not responsible (Gabrielson v. Waydell [C. C.] 67 F. 342; The Osceola, 189 U. S. 158, 175, 23 S. Ct. 483, 47 L. Ed. 760), there remains in it a vestigial remnant of the once all-comprehensive fellow servant rule, which was in its fullest glory in the year 1892, to wit, the rule of nonliability of the employer for assaults committed by a superior employee upon his inferior in the performance of the employer's work. To this extent it may be controlling upon this court if its remains in harmony with recent legislation on the subject.

[3] The admiralty and maritime law is subject to change by Congress. Congress has acted, and the Supreme Court of the United States has said broadly (International Stevedoring Co. v. Haverty, supra) that ‘the statutes do away with the fellow-servant rule’ as applied to longshoremen engaged in stowing freight in the hold of a ship within the admiralty and maritime jurisdiction of the United States. We would be content to give this declaration its full face value were it not for the fact that the case was one of the negligence, rather than the misconduct, of a foreman. It thus becomes necessary to examine the course of legislation on the subject to determine its bearing on our decisions.

The fellow servant rule is generally stated in terms of negligence only, although misconduct of a coemployee is also within its scope. By the Seamen's Act of March 4, 1915 (38 Stat. 1185, c. 153, § 20), it was provided that ‘in any suit to recover damages for any injury sustained on board vessel or in its service, seamen having command shall not be held to be fellow-servants with those under their authority.’ This language proved to be inadequate to substitute the common-law measure of liability for personal injuries for the maritime rule of limited liability in the case of seamen (Chelentis v. Luckenbach S. S. Co., 247 U. S. 372, 38 S. Ct. 501, 62 L. Ed. 1171), and was probably appropriate only to the relief of seamen in any event (Yaconi v. Brady & Gioe, 246 N. Y. 300, 158 N. E. 876). It was, however, a gesture in the direction of wider responsibility on the part of the master for the negligence of his servants. It was succeeded by the Jones Act (Merchant Marine Act of June 5, 1920; 41 Stat. c....