Gabrielson v. Waydell

• Decision Date: 04 October 1892
• Citation: 31 N.E. 969,135 N.Y. 1
• Parties: GABRIELSON v. WAYDELL et al.
• Court: New York Court of Appeals Court of Appeals

135 N.Y. 1

31 N.E. 969

GABRIELSON

v.WAYDELL et al.

Court of Appeals of New York.

Oct. 4, 1892.

Appeal from superior court of New York city, general term.

Action by Charles G. Gabrielson against Frederic Waydell and others. There was a verdict for plaintiff, and defendants' exceptions were ordered to be heard at the general term in the first instance. 14 N. Y. Supp. 125. From a judgment of the general term, (15 N. Y. Supp. 976,) overruling their exceptions, and directing a judgment on the verdict, defendants appeal. Reversed.

Maynard, Finch, and O'Brien, JJ., dissenting.

N. B. Hoxie, for appellants.

George P. Gordel, for respondent.

The other facts fully appear in the following statement by GRAY, J.:

Plaintiff brings this action for damages against the owners and the captain of a vessel upon which he had shipped as an able seaman, and, while in such service, had received grave injuries. During a voyage from the West Indies to the United States, upon a certain occasion, being ordered by the mate to ‘turn to,’ he said he was sick, and not able to go on deck. He had previously suffered from chills and fever, and what he was then suffering from seemed to be an attack of a similar nature. The captain came into the forecastle, and ordered him to go on deck. Plaintiff told him he was sick. The captain then hit him several times while lying in his bunk, pulled him out of his bunk, and said, ‘Will you go on deck now?’ Plaintiff said: ‘I feel sick. I am not able to go on deck.’ The captain again hit him several times with his fist, and, upon plaintiff's catching hold of his arm, then kicked him upon the leg, breaking the bonebelow the knee. There was no struggle between the men, nor any provocation for the captain's treatment, beyond plaintiff's complaint of illness. He was placed back in his bunk, and his leg rudely placed in splints. Upon the arrival of the vessel at New York, he was taken to the hospital, and remained there until discharged as cured. The captain was not served with the summons and complaint, as he had never returned from a subsequent voyage, and was supposed to have been lost. The trial judge permitted the case to go to the jury, and plaintiff recovered a verdict. Defendants exceptions being ordered to be heard in the first instance at the general term of the superior court of the city of New York, they were there overruled, and judgment was directed, upon the verdict, for the plaintiff. The defendants then appealed to this court.

GRAY, J., ( after stating the facts.)

The question brought up by this record is whether the owners of a vessel can be made liable in damages for the willful and malicious act of their captain in assaulting and injuring a seaman while upon the high seas. The learned trial judge, in denying the motion to dismiss the complaint, proceeded upon two grounds, namely, that the captain was the representative or alter ego of the owner, and was not a fellow servant with the plaintiff; and that the willful and malicious nature of the captain's act constituted no ground for an exception to the liability of the owners, if the act was performed within the general scope or course of his employment. Therefore he left it to the jury to decide whether, in what he did to the plaintiff, the captain was acting in the line of his duty. I think this appeal should prevail. There was no conflict in the evidence, and it proved a willful assault by the captain of the vessel upon one of the seamen, which nothing in the evidence or within any principle of the maritime law justified as coming within a proper or an intended exercise of authority. For its occurrence the owners cannot be held responsible, in my opinion, either upon sound reasoning, or upon any sufficient precedent, and the trial judge should have dismissed the complaint. I concede fully that we should, in determining this question, be guided by the principles of the martime law. The plaintiff's employment was, of course, a maritime contract. It is matter of familiar knowledge that about the mariner the maritime law throws a protection greater than is extended by the general rules of the common law to him who is employed in a service upon the land. This distinction arises very naturally from the difference in the nature of a mariner's life and employment, which subject him to hazards and hardships, and tend to make him heedless in character. So the maritime law is peculiarly solicitous of his rights, and watches over his more unprotected condition. Thus, for instance, it is strict in requiring shipping articles, and liberal in interpreting them for the seaman's interests, in the presence of unfair or inadequate provisions. It obliges the owners to provide a sea worthy vessel. It requires that the vessel shall be provided with proper appliances for the seaman's safety, and with adequate and properfood for his sustenance; and it imposes the duty of providing for his medical care and attendance in case of sickness or wounds. From the seaman a faithful and strict performance of his duties is required, and, because of the responsibility devolving upon the master of the vessel for the successful conduct of the voyage, considerable latitude in disciplinary powers is allowed to him, though no cruel or excessive punishment is sanctioned. In rendering to the seaman that care and in performing those duties towards him which the law exacts from the owners of the vessel, the captain, for such purposes, represents them, and a neglect of his, in such respects, is visited upon the owners. This liability follows from the situation of the parties. The owners are not in charge of the vessel. They remain upon the land, and employ a master for the vessel, as well to carry out their assumed or implied obligations to the members of the ship's company as to perform the undertaking of conducting the craft successfully upon its voyage. The delegation of powers to the master of the vessel comprehends their exercise in all such ways as the safety of the vessel and the welfare of its company render needful or expedient. While in those respects which demand of the owners the rendition of certain duties towards the crew the master of the vessel must and does represent them, and by his failure or neglect will entail consequences upon them for the breach of the obligation, he is, notwithstanding his representative and superior position, but a servant, employed with the others of the ship's company upon the vessel in the service of its owners. The scope of the service varies, as the position of the individuals employed differs; but, relatively to the general undertaking, they are fellow servants engaged in one common employment. In Scarff v. Metcalf, 107 N. Y. 211, 13 N. E. Rep. 796, which was an action by a mate against the owners of a vessel to recover damages for negligence in omitting to provide him with adequate medical attendance and care, the plaintiff's recovery was sustained in this court upon the ground that there had been a neglect of a duty imposed by the maritime law. Such a duty has always been recognized, and was prescribed in the laws of Oleron and Wisbury. What that case decided with respect to the liability of the owners of a vessel to a seaman for a neglect of the captain was that it existed whenever his neglect concerned something as to which a duty rested upon the owners under the principles of the maritime law, which, by force of the situation, could only be discharged through the agency of the vessel's master. Its effect is to hold that in matters relating to the owners' duty to the seamen, which the captain must perform, his neglect could not be regarded as merely that of a fellow servant, but as the neglect of the owners.

Cases which relate to the rights of passengers or third persons I do not consider as precedents, and serveral of that nature have been referred to. In the one class of cases, the passenger's contract for transportation entitles him to protection against the negligence or the assaults of the employes of the carrier. In the other class, strangers have the right to hold the owners liable for the consequences of a willful act of the captain, performed while engaged in the prosecution or execution of the owners' business. The cases of Hunt v. Colburn, 1 Spr. 215, and Luscom v. Osgood, Id. 82, related, as to the first, to the wrongful dismissal of an officer, and, as to the second, to the right to compensation for a minor's services; and I cannot see in them precedents for the decision of this case. Nor is the case of Sherwood v. Hall, 3 Sum. 127, an authority. That was an action for the shipment by the master of a vessel of the minor son of the libelant, and he recovered a certain amount of wages, and something for expenses and losses. The master there was the agent of the owners in shipping seamen to be employed on their vessel. The responsibility for the wrongdoings of the master of a vessel rests to a certain extent only upon the owners, and that extent is reached when the performance of the act complained of cannot be seen properly to come within some principle of the law of agency. The agency of the captain for the owners would include all those acts which are fairly embraced withih the scope of his appointment, and which would be in the line of his duty; but when he injures his men by misconduct or assault, that would seem to be as much one of the risks which they assumed in entering the employment upon the vessel as it would be one in the case of an employment in a concern upon the land, where the control and superintendence had been committed by the proprietor to a manager. It is impossible to regard a wanton assault upon a seaman by his captain as something within any intended authority, or within the scope of his employment. He outruns his authority, and commits an act which the owners will not be presumed to have assented to. I believe that by no extension of the principles of the law of master and...