Nelson v. American-West African Line

• Decision Date: 07 December 1936
• Docket Number: No. 125.,125.
• Citation: 86 F.2d 730
• Parties: NELSON v. AMERICAN-WEST AFRICAN LINE, Inc.
• Court: U.S. Court of Appeals — Second Circuit

86 F.2d 730 (1936)

NELSON v. AMERICAN-WEST AFRICAN LINE, Inc.^*

No. 125.

Circuit Court of Appeals, Second Circuit.

December 7, 1936.

Haight, Griffin, Deming & Gardner, of New York City (Edgar R. Kraetzer, of New York City, of counsel), for appellant.

Hunt, Hill & Betts, of New York City (George Whitefield Betts, Jr., and William Logan, Jr., both of New York City, of counsel), for appellee.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

L. HAND, Circuit Judge.

This is an appeal from a judgment dismissing the complaint at the close of the plaintiff's evidence in an action to recover for personal injuries under section 33 of the Merchant Marine Act of 1920, U.S. Code, title 46, § 688 (46 U.S.C.A. § 688). The plaintiff was an able seaman upon the defendant's steamer, "West Irmo," on a voyage from New York to West Africa; and while the ship was lying in a port on the Congo River at between eleven-thirty and twelve o'clock at night, the ship's boatswain entered the crew's quarters and struck him a blow across the face with a wooden bench while he lay in his bunk. The theory of the action was that the boatswain was acting within the scope of his authority, and that the statute created a cause of action against the owner under the doctrine of Jamison v. Encarnacion, 281 U.S. 635, 50 S.Ct. 440, 74 L.Ed. 1082, and Alpha S. S. Corp'n v. Cain, 281 U.S. 642, 50 S.Ct. 443, 74 L. Ed. 1086. In the light of those decisions no issue remains except whether the boatswain was so acting, as to which the evidence is as follows. The "West Irmo" had but one boatswain; he had been off duty ashore, where he got roaring drunk, and came aboard at night with much noise, disorder and violence. He first chased the carpenter into the lavatory, and tried to break through the door to get at him; he then went back into the mess room, where he furiously raged about for a while, until the notion seized him to go into the crew's quarters, where the plaintiff was trying to sleep. It was still a half hour before midnight when the plaintiff was to go on watch, but the boatswain apparently had a mad idea that the plaintiff should get up and go on deck at once, for as he struck him, he cried out to him, "Get up, you big son of a bitch, and turn to." Having roused him by the first blow, he engaged in a fight with him in which the plaintiff was further injured. The boatswain kept no watches, but worked as occasion required; he had authority to call out all hands when he thought best, and did so, for example, on leaving port, or in stress of weather. Like other boatswains, he was foreman, so to say, of the crew. The judge thought that at the time of the assault he was not acting for the ship and dismissed the complaint. The plaintiff appeals.

When the case of Alpha S. S. Corp. v. Cain, supra, was before us, Cain v. Alpha S. S. Co., 35 F.(2d) 717, we discussed the question now at bar. The circumstances were indeed different because the superior officer was on duty at the time, but the plaintiff did not, and could not, assert that the assault in fact was in aid of discipline on board the ship, or that it was not in part actuated by motives which had nothing to do with the owner's interest. A principal is not chargeable with willful acts, intended by the agent only to further his own interest, not done for the principal at all. Davis v. Green, 260 U.S. 349, 43 S.Ct. 123, 67 L.Ed. 299; Bonsalem v. Byron S. S. Co., 50 F.(2d) 114 (C.C.A.2); Sibley v. Barber S. S. Lines (D.C.) 57 F.(2d) 318; Restatement of Agency, § 235. But motives may be mixed; men may vent their spleen upon others and yet mean to further their master's business; that meaning, that intention is the test. Pennsylvania Mining Co. v. Jarnigan, 222 F. 889 (C.C.A.8); Whitted v. Southwestern T. & T. Co., 231 F. 926 (C.C.A.8); Schultz v. Brown, 256 F. 187, 191 (C.C.A.9); Thompson-Starrett Co. v. Heinold, 60 F.(2d) 360 (C.C.A.3); Mott v. Consumers' Ice Co., 73 N.Y. 543, 551; Magar v. Hammond, 183 N.Y. 387, 390, 391, 76 N.E. 474,...