Fegan v. Lykes Bros. S. S. Co.

• Decision Date: 30 June 1941
• Docket Number: 36190.
• Court: Louisiana Supreme Court
• Parties: FEGAN v. LYKES BROS. S. S. CO., Inc.

3 So.2d 632

198 La. 312

FEGAN v. LYKES BROS. S. S. CO., Inc.

No. 36190.

Supreme Court of Louisiana

June 30, 1941

Rehearing Denied July 18, 1941.

B. Y. Wolf, of New Orleans, for applicant.

Terriberry Young, Rault & Carroll and Andrew R. Martinez, all of New Orleans, for respondents.

HIGGINS Justice.

The plaintiff, first mate on the steamship West Tacock, sued the owners of the ship, under the Jones Act, 46 U.S.C.A. � 688 to recover damages for personal injuries alleged to have been sustained through the defendant's negligence in failing to provide a safe place to work and safe appliances with which to perform his duties. He also seeks recovery under his maritime contract of employment for maintenance and cure. He alleged that he was seriously injured on May 13, 1938, as a result of firing a Lyle gun or cannon, upon orders of the master of the ship and as required by the regulations of the United States Department of Commerce.

The main defense is that the defendant was free from fault and that the plaintiff's negligence was the sole cause of the accident and the resulting injury.

The jury, by a vote of nine to three, rendered a verdict in favor of the plaintiff for the sum of $10,000 damages for the injuries sustained and for $4,800 for maintenance and cure under his maritime contract. The district judge rendered judgment accordingly. The defendant appealed to the Court of Appeal for the Parish of Orleans. The plaintiff answered the appeal and asked for an increase in the award of damages. The Court of Appeal rendered judgment annulling the award of damages of $10,000 for injuries and dismissed the suit in that respect on the ground that the plaintiff had failed to prove that the defendant was in any way at fault. The court also annulled the award of $4,800 for maintenance and cure and remanded the case to the district court for further proceedings on the ground that the proof was insufficient o support the verdict of the jury. 195 So. 392.

The plaintiff, after the Court of Appeal denied his application for a rehearing, applied to this court for a writ of certiorari, which we granted, and, on reviewing the case, we held that the ruling of the trial court in excluding the ex parte reports of the Marine Inspectors as hearsay was correct, and that the Court of Appeal erroneously reversed the ruling of the trial court and considered those reports as evidence in determining whether or not the defendant was liable. We also differed with the Court of Appeal as to the manner of fixing and placing the costs of court upon the plaintiff. We remanded the case to the Court of Appeal to have it determine the correctness or incorrectness of the verdict of the jury upon the record, without taking into consideration the Maritime Inspectors' reports. We affirmed the judgment of the Court of Appeal in remanding the case to the trial court for additional proof in support of the claim for maintenance and cure. 196 La. 541 199 So. 635.

When the case was again considered in the Court of Appeal, the judges followed the instructions of this court and eliminated the Inspectors' reports, and, on the same evidence upon which the case was submitted to the jury, decided that the plaintiff had failed to establish wherein the defendant was guilty of negligence. 199 So. 680.

After the plaintiff's request for a rehearing was denied by the Court of Appeal, he again applied to this court for a writ of certiorari, which was granted and the case is now before us for review.

Counsel for the plaintiff, now relator, has asked in his brief that this court consider the question of whether or not the plaintiff is entitled to the award of $4,800 for maintenance and cure. In our original judgment, we affirmed the judgment of the Court of Appeal, which ordered the case remanded to the district court, so that the plaintiff might have another opportunity to introduce additional proof as to that claim. An application for a rehearing was denied by us on January 6, 1941, and, therefore, the judgment of this court became final on that score and we have no right to further consider that issue at this time.

On May 13, 1938, the plaintiff, while employed as first mate aboard the steamship West Tacock, which was returning to Beaumont, Texas, from a voyage to England, was ordered by the master of the ship, in accordance with the regulations of the United States Government, to fire the Lyle or line-carrying gun or cannon thereon, in drill practice. The ship was then about eighty miles south of the Southwest Pass. In obedience to these instructions, the plaintiff had the gun lashed to the deck of the ship with a 3 1/2-inch hemp rope tied to a 4-inch water pipe. He then made, or caused to be made, a powder bag to contain the charge of black powder which was placed in the gun and the projectile was inserted in the barrel thereof. His first two attempts to fire the gun were unsuccessful because of difficulty with the primers, but after he tried the third time, the powder ignited and the gun fired. Due to concussion and recoil, the cannot kicked back and broke the 3 1/2-inch rope lashing and hurtled backward across the deck striking an overlapping deck plate and breaking off one of the angle irons, which was connected to the gun's carriage, and then deflected to the point where the plaintiff was standing, striking and jamming his right leg and hip against the hatch with such force as to inflict painful and permanent bodily injuries. The gun finally landed twenty-eight feet away against some steam pipes on the portside of the vessel.

There are seveal charges of negligence against the owners of the ship with respect to failing to provide it with proper equipment and in furnishing it with defective appliances, but, after a review of the case, it is our view that the Court of Appeal in its original opinion, as well as in its subsequent judgment, correctly concluded that the plaintiff, with one exception, had failed to prove that the defendant was at fault in any of those respects.

There was a charge of negligence, which the plaintiff's attorney emphasized in the Court of Appeal on the second hearing and in this court in his application for the writ and in the argument of the case, i. e., that the defendant failed to comply with the mandatory regulations of the United States Department of Commerce to furnish powder bags of the proper dimensions filled with the proper amount of black powder to be kept on board the ship and ready for use in firing the Lyle gun in practice drill or in emergency.

This contention is predicated upon the following regulations of the United States Department of Commerce contained on pages 26 and 27 of the Fifty-second Supplement To General Rules and Regulations, issued June 18, 1935, found under the subject 'Line-Throwing Appliances,' which begins on page 23:

'Service recommendations: (a) Mounted type.--The following precautions andprocedure are recommended for the use of mounted type line-carrying guns and equipment:

'1. Service powder charge should be about 5 ounces, and the powder bagsshould be furnished to the vessel containing not more than that quantity of black powder. Under extraordinary circumstances, 8 ounces may be used.

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'Drills. The master of a vessel equipped with a line-carrying gun shall drill his crew in its use and require it to be fired at least once in every 3 months, using one-half the usual charge of powder and any ordinary line of proper length. The service line shall not be used for drill purposes. Each drillshall be recorded in the ship's log book.

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'Placard instructions. A placard with instructions for using the gun apparatus, as practiced by the United States Coast Guard, shall be posted in the pilot house and engine room, and seamen's, firemen's and stewards' departments of every vessel required by law to carry such gun apparatus.' (Italics ours.)

The defendant takes the position that the regulation as to the powder bags is merely a suggestion to ship owners and leaves it to their discretion as to whether or not they will follow the recommendations and that they are in no way compulsory. The plaintiff argues to the contrary. We will analyze these recommendations for the purpose of determining their true meaning:

To start with, the above-quoted paragraphs are found imbedded in the mandatory regulations of the Department with reference to furnishing the Lyle gun and its proper use aboard the ship. It will be noted that the word 'precaution' is used. It means 'previous action; proven foresight; care previously employed to prevent mischief or to secure good result;' or 'a measure taken beforehand; an active foresight designed to ward off possible evil or secure good results.' The word 'procedure' is defined as 'manner of proceeding or acting; a course or mode of action.' The word 'should' is the imperfect of the word 'shall'; it is the preterit of the word 'shall'; 'should' is used as an auxiliary verb either in the past tense or conditional present. Its synonym is 'ought'. Both of these words clearly imply obligation.

For definitions and interpretation of the word 'precaution', see Webster's International Dictionary and the case of McKinney's Adm'x v. Cincinnati, N. O. & T. P. R. Co., 242 Ky. 167, 45 S.W.2d 1031, 1034. For definitions and interpretations of the word 'should,' see the same dictionary and the cases of Town of Edgewater v. Liebhardt, 32 Colo. 307, 76 P. 366, and Foresi v. Hudson Coal Company, 106 Pa.Super, 307, 161 A. 910.

When regulations provide that certain things should be done and they specify the manner of doing so, it necessarily means that that is the proper way to do them and failure to meet the requirements thereunder is certainly not the...