Jones v. Lykes Bros. Steamship Co.

• Decision Date: 04 June 1953
• Docket Number: Docket 22665.,No. 245,245
• Citation: 204 F.2d 815
• Parties: JONES v. LYKES BROS. STEAMSHIP CO., Inc.
• Court: U.S. Court of Appeals — Second Circuit

204 F.2d 815 (1953)

JONES v. LYKES BROS. STEAMSHIP CO., Inc.

No. 245, Docket 22665.

United States Court of Appeals Second Circuit.

Argued May 5, 1953.

Decided June 4, 1953.

Arthur M. Boal, New York City, Tompkins, Boal & Tompkins, New York City, for the appellant.

Silas Blake Axtell, New York City (Martin G. Stein, New York City, of counsel), for the appellee.

Before SWAN, Chief Judge, and L. HAND and AUGUSTUS N. HAND, Circuit Judges.

L. HAND, Circuit Judge.

The defendant appeals from a judgment in favor of a seaman for personal injuries, arising from an assault by a fellow seaman aboard the defendant's ship, of the crew of which the plaintiff and his assailant were both members. The plaintiff also appeals because of the inadequacy of the damages, and raises the question whether the action should have been tried as a suit in the admiralty; but, since we are holding that the complaint should have been dismissed because the plaintiff did not prove any claim either under the Jones Act,¹ or the maritime law, it will not be necessary to notice his appeal. The action was tried to a judge without a jury, and the appeal has been prosecuted upon his findings of fact. The plaintiff and Hunter, his assailant, were firemen and shared quarters in the forecastle; they had been together on the ship for more than four months and had apparently been on friendly terms. Although "on a single occasion in the Philippines Hunter had an argument with a fellow member, * * * no blows were struck by either"; nor was there any evidence that he was a man of unusual truculence except as appeared from the circumstances of the assault itself. These the judge found in the following words. "On the evening of the assault, May 25, 1949, when the ship had returned to Galveston, Texas, plaintiff and Hunter had a can of beer together ashore and left each other under amicable circumstances. Plaintiff returned to the ship and went to sleep since his watch did not begin until 12 midnight. He reported for duty in the fireroom of the S. S. Frederick Lykes at a few minutes before midnight. Hunter, who had the 8 to 12 watch in the same fireroom, told him everything was in order and left, presumably for his quarters. Plaintiff did not find everything in order. There were no notations on the blackboard concerning the tips in the burner and some oil had been spilled on the deck. The ship was being maneuvered to go upstream to Houston. Plaintiff inquired of the junior engineer what size tips Hunter had used and got no satisfactory response. A few minutes later Hunter returned to the fireroom and shouted some vile remarks at plaintiff. Hunter told plaintiff that he had been firing long enough to know where things were. This argument was broken up by the chief engineer, who told Hunter to go back to his quarters. No blows were struck — in fact there was no physical contact at all. Later that same morning after the plaintiff had completed his watch and returned to his quarters he was suddenly and without provocation beaten by Hunter. As a result plaintiff sustained severe injuries to his hip." From these facts the judge concluded that, although there was no ground for imputing liability to the defendant because of any negligence in taking on Hunter, the evidence...