Kable v. United States, 245
Decision Date | 09 June 1949 |
Docket Number | No. 245,Docket 21305.,245 |
Parties | KABLE v. UNITED STATES. |
Court | U.S. Court of Appeals — Second Circuit |
Thomas A. McDonald, New York City, for appellant.
John F. X. McGohey, United States Attorney, New York City, by Haight, Deming, Gardiner, Poor & Havens, New York City (James M. Estabrook and Edgar R. Kraetzer, New York City, of counsel), for appellee.
Before CHASE, CLARK, and DOBIE, Circuit Judges.
This is an appeal by libelant, Paul E. Kable, from a final decree in admiralty, dated December 3, 1948, entered in the United States District Court for the Southern District of New York, dismissing his libel brought against respondent, the United States, as owner of the S. S. "George Vickers," for unpaid wages, maintenance and cure, and for damages for personal injuries sustained by Kable in a fight between Kable (first mate of the "George Vickers") and Svedman, who was chief engineer of this vessel.
A former final decree dismissing the libel and awarding costs to respondent was entered by the District Court January 23, 1948, 77 F.Supp. 515, 519. On appeal from that decree taken to this Court, this former final decree was affirmed in so far as it dismissed the claim of libelant for damages for personal injuries; but this decree was reversed in so far as it dismissed the claims of libelant for maintenance and cure, unpaid wages and damages for unpaid wages and the case was remanded to the District Court for the entry of findings upon these latter issues, particularly upon the issue of wilful misconduct, and for the entry of an appropriate decree in the light of the findings so made. The opinion of this Court, dated July 31, 1948, is reported at 169 F.2d 90.
On November 23, 1948, the District Court made further findings of fact and conclusions of law and disallowed any award for maintenance, cure, or wages. Final decree dismissing the libel and allowing costs to the United States was entered by the District Court on December 3, 1948. It is from this final decree that the present appeal is taken by libelant.
The further findings of fact by the District Judge after the remand were:
As his one further conclusion of law, the District Judge found that Kable was not entitled to any award for maintenance, cure, or wages, and his claims therefor were disallowed.
We are urged by counsel for libelant on the present appeal to reverse the decision of the District Court against the libelant on his claim for personal injuries received in the second fight between libelant and Svedman. The basis for this contention appears to be finding of fact number 2 of the District Judge after remand. This finding (quoted above) reads:
Libelant's counsel lay great stress upon the portion of this finding which we have italicized, as indicating that Svedman inflicted the injuries upon Kable in carrying out the ship's business.
The events leading up to the two fights between Kable and Svedman, together with the details of these fights, were discussed at some length by Circuit Judge Clark in his opinion in this Court on the previous appeal. We see no occasion to add here a blow by blow description.
We note, however, that this precise question was effectively disposed of against libelant in Judge Clark's opinion in connection with Svedman's testimony that "he had gone to Kable's room `to silence him; to stop him from yelling'; and `to preserve quiet aboard the ship.'" (Italics ours.) 169 F.2d at pages 92-93. Accordingly, there is no need whatever, on the present appeal, to re-open this question, which was effectively determined on the previous appeal.
This brings us to the claim of libelant for maintenance and cure. On the prior appeal, 169 F.2d at page 93, this Court held (citing authorities): "It is settled that a seaman cannot recover for maintenance and cure if the injury was the result of his own wilful misconduct." This Court (same citation) then went on to say:
(Italics ours.)
And the opinion ended with this paragraph, 169 F.2d at page 94:
"The judgment of this court is therefore that the decree...
To continue reading
Request your trial-
McConville v. Florida Towing Corporation
...2 Cir., 1957, 245 F.2d 463, 464, 1957 A.M.C. 2367; Kable v. United States, 2 Cir., 1948, 169 F.2d 90, 1948 A.M.C. 1595; 1949, 175 F.2d 16, 1949 A.M.C. 1378; Aguilar v. Standard Oil Co. of New Jersey, 1943, 318 U.S. 724, 730-31, 63 S.Ct. 930, 87 L.Ed. 1107, 1943 A.M.C. 451. This brings us, t......
-
Fountain v. John E. Graham & Sons
...thus shipowner could not be held liable). Accord Kable v. United States, 169 F.2d 90, 92 (2d Cir.1948), appeal after remand 175 F.2d 16 (2d Cir.1949) (shipowner, United States, not liable when chief engineer assaults chief officer). There is no evidence that Fountain was not McRand's superi......
-
Watson v. Joshua Hendy Corporation, 251
...245 F.2d 463 (1957) ... Waldron C. WATSON, Libellant-Appellant, ... JOSHUA DY CORPORATION, Respondent-Appellee ... No. 251, Docket 24348 ... United States Court of Appeals Second Circuit ... Argued February 15, 1957 ... Kable v. U. S., 2 Cir., 1948, 169 F.2d 90; Id., 2 Cir., 1949, 175 F.2d 16; ... ...
-
Watson v. Joshua Hendy Corporation
...seaman recover for maintenance and cure. Kable v. United States, 2 Cir., 1948, 169 F.2d 90, 1948 A.M.C. 1595; Kable v. United States, 2 Cir., 1949, 175 F.2d 16, 1949 A.M.C. 1378. The evidence does not show that the injuries were received by libelant as a result of an assault by a superior o......