Maldonado v. Lykes Bros. S. S. Co.

• Decision Date: 30 May 1940
• Docket Number: No. 11035.,11035.
• Citation: 142 S.W.2d 544
• Parties: MALDONADO v. LYKES BROS. S. S. CO., Inc.
• Court: Texas Court of Appeals

142 S.W.2d 544

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

No. 11035.

Court of Civil Appeals of Texas. Galveston.

May 30, 1940.

Rehearing Denied July 25, 1940.

Appeal from District Court, Galveston County; C. G. Dibrell, Judge.

Suit by Luis Maldonado against Lykes Brothers Steamship Company, Inc., for

injuries sustained by plaintiff while employed as a messboy on defendant's steamship. From a judgment sustaining general demurrer to plaintiff's petition and dismissing his suit, the plaintiff appeals.

Reversed and remanded.

Armstrong, Cranford, Barker & Bedford, of Galveston, for appellant.

Royston & Rayzor, of Galveston (M. L. Cook, of Galveston, of counsel), for appellee.

GRAVES, Justice.

This appeal is from a judgment of the 56th District Court of Galveston County sustaining a general demurrer to the petition of appellant, and dismissing his suit for damages for personal injuries, as therein declared upon by him against the appellee; the material substance of the pleading was this:

"2. That on or about the 3rd day of September, 1939, plaintiff was employed as a seaman in the capacity of a messboy on board the Steamship `Cardonia', which was a vessel registered under the laws of the United States, and which vessel was owned and operated by the defendant under the control and direction of superior officers employed by the defendant; that between four and five P. M. on the date aforesaid, while said vessel was being docked in the Port of Houston, Texas, plaintiff received and suffered serious and permanent bodily injuries, and sustained damages as the proximate result of the negligent acts and omissions of the defendant, its officers and agents, as hereinafter more fully described.

"3. That at the time and on the occasion described aforesaid, the plaintiff, while on duty and in the act of the performance of his duties as a messboy in the saloon of said vessel, was slicing and cutting bread with a large and heavy butcher-knife, weighing approximately twenty-one ounces, and being fifteen to eighteen inches in length, which he had been ordered to use for such purpose by an agent of the defendant, to-wit, the steward on said vessel; that said butcher-knife was designed and customarily used and employed by the defendant, its agents and employees, in cutting meats, including meats containing bones, and was an improper tool for use in cutting bread; that at the time and on the occasion described above, the bread-knife with which said saloon was furnished had become misplaced and lost, and without supplying said saloon with another bread-knife for the use of plaintiff in cutting bread, the defendant's agent and employee, to-wit, the steward, ordered this plaintiff to cut and slice bread with said butcher-knife; that the plaintiff, in slicing said bread with said butcher-knife at the time and on the occasion described aforesaid, and in obedience to the orders of said steward, cut off a portion of the index finger on his left hand just below the first joint; that prior to said steward ordering plaintiff to use said butcher-knife in cutting bread, plaintiff had not had any previous experience in the use of that type of knife in cutting and slicing bread.

"4. That the injuries received and the damage sustained by plaintiff, as hereinafter stated, were directly and proximately caused by the negligence of the defendant, its officers and agents in charge of the operations of said vessel, in each of the following particulars:

"1. The defendant, its officers and agents in charge of said vessel, failed to furnish plaintiff with a proper and suitable tool, to-wit, a bread-knife for use in cutting bread.

"2. The defendant, its officers and agents in control of the operation of said vessel, failed to supply said vessel with a sufficient number of bread-knives, so that, when one was misplaced and lost, it was not able to supply another to take its place.

"3. That said butcher-knife was an improper tool and dangerous for use as a bread-knife, and the defendant's agent, the steward, was negligent in improperly ordering plaintiff to use the butcher-knife, instead of a bread-knife in cutting bread.

"5. That as a direct and proximate result of the defendant's negligence aforesaid, plaintiff received and suffered injury to the index finger on his left hand, to-wit, total loss of said index finger between the first and second joints thereof, and total and permanent loss of the use of said entire index finger; etc.

"6. Plaintiff alleges that his injuries, as aforesaid, occurred in the course of his employment as a seaman in the employ of the defendant on said S/S `Cardonia', an American vessel, and that he is entitled to recover in the court in which this suit is filed his damages sustained as aforesaid, under the provisions of Title 46, Section 688, of the U. S. Code (the Merchant Marine Act of 1920) commonly known as the `Jones Act'."

In this court the parties agree that the action thus brought was one referable to, as well as within the purview of, the U. S. Merchant Marine Act of 1920, or the "Jones Act", as so expressly prescribed under, in the quoted petition.

They further appear to mutually concede that the controlling question presented here is, whether or not that petition stated a good cause of action, under such Federal Statute, for damages for negligence of the appellee and its employees toward the appellant, and that the rules therein recognized and applied with respect to the duty of a master to its servant, in such circumstances as appellant so alleges, should govern.

This being, as indicated, not the usual and ordinary case of the servant against the master for the consequences of actionable negligence in the common employments of every-day life, to which no special rules apply, but one controlled by the special relation of seaman and steamship master, as governed by the Federal "Jones Act", supra, it is obviously amenable to the rules inhering in and enjoined by that statute, rather than those appertaining to a master-and-servant relationship in general.

Under that statute, it seems settled that such a seaman as appellant was may recover for injuries received in the course of his employment resulting from the ship-owner's negligent failure to furnish reasonable, safe, suitable, or proper appliances, or equipment. Howarth v. United States Shipping Board Emergency Fleet Corp., 2 Cir., 24 F.2d 374; Coast S. S. Co. v. Brady, 5 Cir., 8 F.2d 16; Slaney v. Cromwell, D.C., 38 F.2d 304; Panama R. Co. v. Vasquez, 271 U.S. 557, 46 S.Ct. 596, 70 L.Ed. 1085; 56 C.J., "Seamen", Section 653. And that is true, irrespective of the technical doctrine of seaworthiness; 56 C.J., "Seamen", § 653.

Further, under the requirements of that Act, it being amendatory of the preexisting Federal Admiralty Law, the common law rules do not apply to such relationship of ship-owner and seaman, among other things, in that the seamen are bound to use the equipment or appliances which the owners furnish for them to do the particular work with, and, in turn, the owners are, for their part, bound to furnish and maintain equipment and appliances reasonably free from defects, as well as reasonably proper and suitable for the special kind of work being done; in this respect, such employers of seamen, while not insurers of the latter's safety, are bound by the requirements of the Act to a much higher degree of care than is required of employers of mere...