Kable v. United States

Decision Date31 July 1948
Docket NumberNo. 282,Docket 21007.,282
Citation169 F.2d 90
CourtU.S. Court of Appeals — Second Circuit

Thomas A. McDonald, of New York City (James S. Tobin, of New York City, on the brief), for libelant-appellant.

James M. Estabrook, of New York City (John F. X. McGohey, U. S. Atty., Haight, Griffin, Deming & Gardner, and Edgar R. Kraetzer, all of New York City, on the brief), for respondent-appellee.

Before AUGUSTUS N. HAND, CHASE, and CLARK, Circuit Judges.

CLARK, Circuit Judge.

Libelant, chief officer of the S. S. George Vickers, owned and operated by the United States of America, here appeals from a district court decree denying him any recovery of either damages for personal injuries or maintenance and cure, unpaid wages, and damages for failure to pay wages claimed as a result of an assault upon him by Erik Svedman, chief engineer of the vessel. The facts show a serious and prolonged altercation between the two officers in the early morning of September 19, 1943, while the vessel was lying at the Port of Alexandria, Egypt. Inevitably the participants are widely apart in their reports as to the cause and course of the combat, and the district judge has held the story told by Svedman, with some support from Tregler, the second assistant engineer, more believable than the one told by libelant. Obviously such resolution of disputed testimony cannot be said to be clearly erroneous; and consequently, under repeated decisions of this court, the court's findings of fact must stand. Farrell v. United States, 2 Cir., 167 F.2d 781; Ozanic v. United States, 2 Cir., 165 F.2d 738; The Paul Dana v. Socony Vacuum Oil Co., 2 Cir., 165 F.2d 78; The C. W. Crane, 2 Cir., 155 F.2d 940; F. E. Grauwiller Transp. Co. v. Gallagher Bros. Sand & Gravel Corporation, 2 Cir., 153 F. 2d 384; Balfour, Guthrie & Co. v. American-West African Line, 2 Cir., 136 F.2d 320, certiorari denied Balfour, Guthrie & Co. v. The Zarembo, 320 U.S. 804, 64 S.Ct. 437, 88 L.Ed. 486; Petterson Lighterage & Towing Corporation v. New York Cent. R. Co., 2 Cir., 126 F.2d 992.

Thus it appears that on Saturday evening, September 18, 1943, Kable, Svedman, and Tregler were ashore in Alexandria and had several drinks together. During the course of the evening, Svedman borrowed five pounds from Kable. At about 11:00 p. m. the party broke up following a slight argument between Kable and Svedman. The men then separated, Svedman going his own way, and the other two returning to the ship. Once aboard, Kable called Tregler into his room and told him that "he would fix the chief when he got back," and thereupon pulled his revolver out of the drawer of his desk. Tregler calmed him down, took the revolver away from him, put it back in the drawer, and then left his room. In the meantime Svedman, returning to the ship, encountered two British naval officers whom he brought aboard and took to his office. He then went below to get coffee, after having invited Tregler to join the group. While hanging up his coat in his bedroom, he heard Kable loudly and roughly inquiring about the presence of the visitors. Svedman then came out of his bedroom, approached the doorway to his office room leading to the alleyway where Kable was standing, and told him that the British officers were his friends and that he had brought them aboard. On reaching the doorway, Kable struck him "twice on the head and once on the side of the face with a gun" and knocked him unconscious. At no time had Svedman struck Kable. Tregler, who was present at the time, intervened and wrenched the gun from Kable's hand. On later inspection he found it fully loaded. He helped to take Svedman to his room, washed the blood off his head and applied iodine, and, after making him comfortable, returned to his own room.

Svedman remained in his room an hour or so, when he again heard Kable yelling in the alleyway that he "wanted his gun back and had ways and means of getting it." (Svedman's actual testimony was that he heard these calls made two or three times over an interval of five minutes, while he was in his room, three rooms removed from Kable's.) On hearing this, Svedman went after Kable, and the fighting started in Kable's doorway and ended in his room. During the course of the fight Kable was badly pummeled and received the injuries for which he sues. The court also found that the Port authorities at Alexandria had forbidden outsiders to board the vessel unless they had special passes. It also quotes, and apparently accepts, the testimony of Nilson, the second mate, that this second encounter consisted of two stages, wherein Nilson first separated Svedman from Kable, directed him back to his room, and then went back to his own room to wash up when "whang, they were loose again" at Kable's door.1 On this case the court first held in a reasoned opinion that the "attack of the chief engineer was not `in furtherance of his master's business,' for which the respondent is liable in damages," and then deferred for further consideration the "more troublesome" issues involving the other claims and the "making of separate findings" and entry of a decree. D.C.S.D. N.Y., 77 F.Supp. 515, at 519. Thereafter it decided that, since it had already held the libelant the original aggressor, "i. e., that he was guilty of wilful misconduct, this disposes of the claim for maintenance and cure," and with it fell also the wage claims. D.C.S.D.N.Y., 77 F.Supp. 519, at 520. Accordingly, without filing "separate findings" beyond its original opinion, the court entered the decree from which libelant has appealed.

On the facts as found we find no error in the district court's disposition of the claim for personal injuries. Since it found that Svedman was not a person of vicious, pugnacious, or dangerous disposition, there can be no liability for unseaworthiness. Indeed, the record is barren of any evidence showing that Svedman had such vicious propensities. Consequently Koehler v. Presque-Isle Transp. Co., 2 Cir., 141 F.2d 490, certiorari denied Presque-Isle Transp. Co. v. Koehler, 322 U.S. 764, 64 S.Ct. 1288, 88 L.Ed 1591, and The Rolph, 9 Cir., 299 F. 52, certiorari denied Rolph Navigation & Coal Co. v. Kohilas, 266 U.S. 614, 45 S.Ct. 96, 69 L.Ed. 468, relied on by libelant, have no application here. For in those cases the evidence convincingly established that the person committing the assault for which the shipowner was ultimately held liable had known vicious propensities. Quite the contrary is the situation before us.

Libelant further contends that the attack by Svedman in the second encounter constituted negligence under Nelson v. American-West African Line, 2 Cir., 86 F.2d 730, certiorari denied American-West African Line v. Nelson, 300 U.S. 665, 57 S.Ct. 509, 81 L.Ed. 873; Alpha S. S. Corporation v. Cain, 281 U.S. 642, 50 S.Ct. 443, 74 L.Ed. 1086; and Jamison v. Encarnacion, 281 U.S. 635, 50 S.Ct. 440, 74 L.Ed. 1082. These cases have no application here, for in each the assault was committed by a superior officer on an immediate inferior. Moreover, the assaults there involved were directly related to the doing of the ship's work and, in fact, were attempts to hasten such work. See Brailas v. Shepard S. S. Co., 2 Cir., 152 F.2d 849, certiorari denied 327 U.S. 807, 66 S.Ct. 970, 90 L.Ed. 1032. Naturally enough, libelant attempts to show that Svedman assaulted him in carrying out the ship's business. In support of this he points to a few sentences from Svedman's testimony, where, in response to questions so phrased, the latter acknowledged that he had gone to Kable's room "to silence him; to stop him from yelling"; and "to preserve quiet aboard the ship." Libelant's argument may be briefly disposed of by noting that, since the court found Svedman had gone to libelant's cabin on an excursion of revenge to retaliate for the prior assault made upon him and since it found that Svedman's actions were not in the course of his employment or in furtherance of the ship's business, we must, of course, abide by these findings supported as they are by the evidence. Accordingly we need not consider whether libelant could prevail even if Svedman's acts were as claimed. As we have seen, the only cases holding the shipowner liable for negligence in assaults of this kind involved incidents where a superior officer assaulted an inferior in the prosecution of the ship's work. Indeed, there is some authority that the principle does not apply where the person committing the assault had no authority over the one injured. Lykes Bros. S. S. Co. v. Grubaugh, 5 Cir., 128 F.2d 387, modified 130 F.2d 25; Nowery v. Smith, D.C.E.D.Pa., 69 F.Supp. 755, affirmed 3 Cir., 161 F.2d 732.2 So we affirm the holding below dismissing the claim for the personal injuries sustained by libelant.

The claims for wages and maintenance and cure, however, present more troublesome issues. It is...

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