Lykes Bros. SS Co. v. Grubaugh, 10128.

• Decision Date: 05 August 1942
• Docket Number: No. 10128.,10128.
• Citation: 128 F.2d 387
• Parties: LYKES BROS. S. S. CO., Inc., v. GRUBAUGH.
• Court: U.S. Court of Appeals — Fifth Circuit

128 F.2d 387 (1942)

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

No. 10128.

Circuit Court of Appeals, Fifth Circuit.

May 25, 1942.

Order Modified on Rehearing August 5, 1942.

John R. Brown and Robert Eikel, Jr., both of Houston, Tex., for appellant.

Arthur J. Mandell, of Houston, Tex., for appellee.

Before SIBLEY, HUTCHESON, and McCORD, Circuit Judges.

Order Modified on Rehearing August 5, 1942. See ___ F.2d ___.

HUTCHESON, Circuit Judge.

Brought by the steward of Lykes Bros. Steamship "Hybert", the suit was under the Jones Act, 46 U.S.C.A. § 688, for damages for injuries inflicted on him by the negligence of the chief engineer and an assistant engineer. The claim was that while the vessel was moored to the dock in Brooklyn, the plaintiff was unlawfully assaulted by the chief engineer and the first assistant engineer, acting in the scope of their authority as officers of the ship over plaintiff, that he sustained damages as the result thereof, and that he is entitled to recover his actual damages and maintenance and cure. This was the case in substance as pleaded: that he was unlawfully assaulted and that at all times while unlawfully and flagrantly assaulting him these two were telling him that they were the real authority on the vessel and that they were disciplining plaintiff without advising him of the cause for such unusual and unlawful punishment. There was a further allegation; that he was notified that the chief engineer wished to see him; that he went to the chief engineer's door and the chief, without addressing him, opened the door and said, "I will show you who has authority aboard this vessel", and then began beating plaintiff over the head and face; that when the chief engineer approached plaintiff he realized that the chief engineer was grossly intoxicated, that he tried to escape but the assistant engineer held plaintiff while the chief struck him. There was a motion to dismiss because the complaint failed to state a cause of action, defenses that plaintiff had been making libelous and defamatory statements concerning the chief engineer; that the quarrel or dispute had no relation to the business of defendant but was over these slanderous statements; that the participants in the quarrel acted in their individual capacities and not in their official capacities; that the quarrel was outside the line of duty of the officers engaged in it; and that because the fight was not at all an official but a purely personal matter, defendant was without fault. The case came on for trial to a jury, and the defendant moved for a continuance in order to obtain the testimony of its witnesses. The court, allowing defendant to offer statements defendant had taken as though they were depositions of the witnesses, denied the motion. The case then proceeding to trial, it appeared without dispute from the whole of the evidence that the moving cause of the fight was the resentment of the intoxicated chief engineer over the fact that plaintiff had, or the engineer believed he had, been circulating defamatory statements about him. This evidence, in addition to the testimony of defendants' witnesses consisted of a written statement of the occurrence made by the plaintiff in the office of defendant in New York just after the incident had occurred. Notwithstanding this state of the evidence, the court, on the following testimony of the plaintiff set out in the margin,¹ submitted to the jury the issue of whether or not the occurrence was a purely personal row or grew out of, and occurred in, the conduct of the business of defendant.

In the course of the trial defendant attempted to offer a statement from defendant's hospital record that plaintiff was fit for duty when discharged. This was rejected. Plaintiff, on the issue of maintenance and cure, over the objection of defendant, proved by one of defendant's officers, that the allowance to officers while ashore away from home was $3.50. The evidence in, defendant moved for a directed verdict and requested several special charges advising the jury that the quarrel would be personal even though plaintiff had not, in fact made any defamatory remarks, if the engineer struck him because he believed he had. The request for a directed verdict was refused and the case submitted to the jury under a general charge in which among other things, the court instructed the jury: (1) "The master is not liable in law for all actions of the servants. Servants or employees frequently do many things upon their own account and for those things the master is not accountable. The master is however accountable for things done by his servant or employee in the course of the discharge of the master's business and within the scope of his employment whether the servant or employee does it rightfully or wrongfully or not. (2) If the servant is not discharging the master's business or not acting within the realm of authority delegated to him by the master but is engaged in performing some business of his own or settling some matter of his own, then the master would not be liable. (3) It is the plaintiff's contention that they assailed him upon the idea that they didn't like the services of the steward, didn't like the way in which he deported himself; didn't think he was fit to be upon the boat and that he should not be, and they were attempting to run him off the boat, and that he was, to some extent, subject to their orders and directions and that they took this mistaken way of supervising him, that is to say, to discipline him by actual physical corporeal punishment. If those things all be true, then the master would be liable for their action." * * * "If you are not convinced from a preponderance of the evidence that they had no right to supervise, direct or control him or that they were either mistakenly or otherwise attempting to supervise, direct and control and on the contrary believe that this matter grew entirely out of personal differences that may have existed between the parties, and had nothing to do with the ship's business, then you will find for the defendant."

There was a verdict for plaintiff followed by judgment and a remittitur of part of the recovery, and defendant has appealed. Appellant here complains, of the order denying the continuance, of the orders excluding and admitting evidence, and of the refusal to give its requested charges, but its principal point is that plaintiff's petition did not state and its proof did not establish a cause of action and that its motion to direct a verdict and its later motion for judgment notwithstanding the verdict, ought to have been granted. We think there was no error in the rulings denying the motion for continuance, none in those admitting and excluding evidence, none in the refusal of the special charges. The motion denying the continuance was addressed to the sound discretion of the trial judge and we cannot say, under the circumstances of the case, including its long pendency before the depositions were taken and the permission granted to appellant to use the statements of its witnesses as depositions, that that discretion was abused. The conclusion in the hospital report that plaintiff was fit for work was correctly excluded. The statute making such reports evidence, merely accredits the facts that they contain, it does not purport to make opinions admissible as evidence. The ruling permitting one of appellant's officers to testify as to the amount allowed officers when on shore, was not error. It was not of course determinative of what a proper allowance for maintenance should be but it was evidence bearing on the point, especially in view of plaintiff's evidence, that it actually cost him that sum while in Houston. Upon the complaint as to the charges it is clear that while the court did not charge appellant's theory in the language requested, he did in the general charge, sufficiently present appellant's theory that if the assault was the result of a personal row plaintiff could not recover.

Taking the evidence however, most favorably for plaintiff, it did not make out a case and the court erred in refusing to instruct a verdict. Nothing more clearly shows the misconception under which the court was laboring in his determination that the case was one for the jury than the language he used in his charge in stating the plaintiff's contention and declaring that if that contention was made out, the defendant would be liable. "It is the plaintiff's contention here that they assailed him upon the idea that they didn't like the services of the steward; didn't like the way in which he deported himself; didn't think he was fit to be upon the boat and that he should not be, and they were attempting to run him off the boat, and that he was, to some extent, subject to their orders and directions and that they had the power and authority to supervise him and that they took this mistaken way of supervising him, that is to say, to discipline him by actual physical, corporeal punishment. If those things all be true, then the master would be liable for their action."

The law governing the responsibility of the master for an injury from a beating administered by one employee to another, as well stated in Medlin Milling Co. v. Boutwell, 104 Tex. 87, 133 S.W. 1042, 34 L.R.A.,N.S., 109, and Davis v. Green, 260 U.S. 349, 43 S.Ct. 123, 67 L.Ed. 299, is that under the doctrine of respondent superior there is no liability for a wrongful assault committed by one employee on another unless the assault is committed, whether wisely or unwisely, in furtherance of or in an attempt to further the master's business or in other words in connection with some act which an assaulter is authorized to do for the master. In any case where the act is merely a wanton and wilful act done to satisfy the temper or spite of the employee, the master is not liable. In Jamison v. Encarnacion, ...