Miller v. Browning SS Co.
| Decision Date | 29 December 1947 |
| Docket Number | Docket 20803.,No. 115,115 |
| Citation | 165 F.2d 209 |
| Parties | MILLER v. BROWNING S. S. CO. |
| Court | U.S. Court of Appeals — Second Circuit |
Desmond & Drury, of Buffalo, N. Y., for plaintiff.
Foster, Lott & Lutz, of Detroit, Mich., and Richards & Coffey, of Buffalo, N. Y. (Sparkman D. Foster and Allan B. Lutz, both of Detroit, Mich., and Laurence E. Coffey, of Buffalo, N. Y., of counsel), for defendant.
Before CHASE, CLARK, and FRANK, Circuit Judges.
A contract between the defendant company and the union to which plaintiff belonged provided that, when defendant needed employees it would "first call the union for such help," that the union "agrees to furnish capable, competent and satisfactory help in so far as it is possible," and that, "In the event the company rejects a prospective employee supplied by the union, such rejection shall be made in writing." Acting pursuant to this contract, defendant asked the union to send an oiler to defendant's ship Sultana. The union selected plaintiff who received from the union a shipping ticket. He boarded the ship (then unloading grain at Buffalo, New York) with the intention of reporting to the engineer for duty. On his way aft, he fell into an open hatch and was seriously injured. Up to the time of his fall, he had reported to no one representing the defendant, indeed had seen no one connected with the ship. He brought this suit under the Jones Act, 46 U.S.C.A. § 688.1 At the close of the evidence, the trial judge, reserving the question whether plaintiff was an employee of defendant, left the other issues to the jury, which returned a verdict for $77,000 in favor of plaintiff. The judge then, on defendant's motion, set the verdict aside and, holding plaintiff not an employee, entered judgment for defendant dismissing the action.2
We think that judgment must stand. The contract plainly meant that, until the defendant had an opportunity to reject him, plaintiff was but a "prospective employee." He was therefore never employed by defendant. Accordingly he had no claim under the Jones Act.3 As there was no evidence of employment other than the contract, the trial judge properly decided the issue instead of leaving it to the jury. We do not consider whether or not plaintiff, in another action, may recover as an invitee or otherwise.
Affirmed.
1 That section reads: ...
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...250, 254 (1960). However, in some circumstances, courts have found that the employee is not hired by the union. Miller v. Browning S.S. Co. 165 F.2d 209, 210 (C.C.A.2 N.Y.1947), cert. denied 334 U.S. 834, 68 S.Ct. 1341, 92 L.Ed. 1761 (1948) (Employee referred to employer by union was merely......
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...the purposes of a workmen's compensation or analogous statute. See Miller v. T. H. Browning S.S. Co., D.C., 73 F.Supp. 185, affirmed 2 Cir., 165 F.2d 209, certiorari denied 334 U.S. 834, 68 S.Ct. 1341, 92 L.Ed. 1761; Hunt v. Jeffries, 236 Mo.App. 476, 156 S.W.2d 23; Brewer v. Department of ......
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...a coil of rope. Shortly thereafter, the chief mate gave him the certificate for the Marine Hospital. Farrell relies on Miller v. Browning S. S. Co., 2 Cir., 165 F.2d 209, as showing that Devlin was not an employee. There, an oiler was sent by his union to the ship to seek employment. The on......
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