Nowery v. Smith

• Decision Date: 23 December 1946
• Docket Number: Civil Action No. 5087.
• Citation: 69 F. Supp. 755
• Parties: NOWERY v. SMITH et al.
• Court: U.S. District Court — Western District of Pennsylvania

69 F. Supp. 755

NOWERY v. SMITH et al.

Civil Action No. 5087.

District Court, E. D. Pennsylvania.

December 23, 1946.

Samuel Mandel and Freedman, Landy & Lorry, all of Philadelphia, Pa., for plaintiff.

H. G. Kildare and Rawle & Henderson, all of Philadelphia, Pa., for defendants.

BARD, District Judge.

This case arises on defendants' motions for judgment n. o. v. and for a new trial.

The plaintiff, James N. Nowery, a former seaman, brought suit for personal injuries under the Jones Act,¹ and for maintenance and cure, against defendants, who were the operators of the merchant vessel "Matthew B. Brady." The injuries of which plaintiff complained were sustained by him in a fist fight with the chief engineer of the "Brady," one Nantau, while plaintiff was on shore leave, in a barroom at Antilla, Cuba.

By agreement of counsel, the issue of maintenance and cure was resolved by the Court, leaving only the question of defendants' liability for damages for the injuries to be determined by the jury. The Court charged the jury, in substance, that they could find for plaintiff if they found (a) that Nantau, when he entered the barroom where the fight occurred, was acting as an officer of the ship, and was on the ship's business; or, (b) if they found that Nantau was a man of vicious and brutal tendencies, who was likely to engage in violent and unprovoked physical assaults upon his fellows, and that Nantau's disposition was known, or should have been known, to the master of the vessel; provided, in either instance, that the jury also found that plaintiff was free from wilful misbehavior, and that he did not provoke the assault.

The jury returned a verdict of $2500 in favor of plaintiff, and the Court found for plaintiff in the amount of $129.50 on the issue of maintenance and cure. Defendants then filed the motions now under consideration.

Defendants urge that plaintiff cannot recover either damages under the Jones Act, or maintenance and cure, because his injuries were sustained while he was in a barroom on shore leave. The benefits of the Jones Act are extended to "Any seaman who shall suffer personal injury in the course of his employment * * *." Plaintiff contends that the Supreme Court has decided that a seaman, even though ashore, is "in the course of his employment," citing O'Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 63 S.Ct. 488, 87 L.Ed. 596, and Aguilar v. Standard Oil Co. of New Jersey, 318 U.S. 724, 63 S.Ct. 930, 87 L.Ed. 1107.² However, I think that plaintiff's interpretation of these two decisions is perhaps stated too abstractly and categorically.

In the O'Donnell case, a seaman, pursuant to orders, was standing on the dock alongside his ship, repairing a conduit through which a cargo of sand was being discharged from the vessel; and, while so engaged, he was injured through the negligence of a fellow employee. In holding that the plaintiff could recover under the Jones Act, the Supreme Court said, at page 42 of 318 U.S., at page 492 of 63 S.Ct.: "The right of recovery in the Jones Act is given to the seaman as such, and, as in the case of maintenance and cure, the admiralty jurisdiction over the suit depends not on the place where the injury is inflicted but on the nature of the service and its relationship to the operation of the vessel plying in navigable waters."

In the instant case, what was the nature of plaintiff's "service," and what was its "relationship to the operation of the vessel plying in navigable waters"? I suggest that an approach to the solution of that problem is found in Aguilar v. Standard Oil Co. of New Jersey, supra. In that case, the plaintiff was injured while crossing premises which he had to traverse on his way back to the vessel from shore leave, and the question presented was whether the shipowner was liable for maintenance and cure under those circumstances. The Supreme Court, in holding the shipowner liable, pointed out that shore leave, with its attendant relaxation, is a necessary and beneficial antidote for the confinement and rigid discipline to which the seaman is subjected aboard ship, by reason of the unique nature of his employment; and that it is the shipowner's business, and to his interest, to insure that the seaman shall enjoy these hours of relaxation whenever the opportunity presents itself.

I recognize that in the Aguilar case, and the companion case, Waterman Steamship Corp. v. Jones, the Supreme Court expressly limited its decision to the facts before it. However, in both of these cases, it seems to me that it was the occasion for the seaman's absence from the vessel — shore leave — which determined that he was on "the shipowner's business" while he was on premises which had to be traversed in going from or returning to the vessel. That being so, I think that logic compels the conclusion that the seaman should also be considered on "the shipowner's business" while he is actually enjoying his shore leave.³ And if, for the purpose of determining the shipowner's liability for maintenance and cure, the seaman is said to be on "the shipowner's business" while on shore leave, I can see no valid reason why, for the purpose of determining the shipowner's liability under the Jones Act, the seaman should not be said to be "in the course of his employment" at the same time. It is simply a question of defining the seaman's status; and I think that the concepts "on the shipowner's business," and "in the course of employment," as they are applied to the seafaring trade, comprehend identical factual situations.

Of course, I am not suggesting that any given set of circumstances which would give rise to liability for maintenance and cure would automatically result in liability under the Jones Act, because liability under the Jones Act is predicated upon negligence, whereas the liability for maintenance and cure is an incident of the seaman's contract of employment. I have determined only that the plaintiff in the instant case was on "the shipowner's business," and "in the course of his employment," at the time when the fight occurred which resulted in his injuries.

Resolving all disputed issues of fact in plaintiff's favor, as I must for the purpose of deciding the motions now under consideration, the material facts surrounding the occurrence of the fight in which plaintiff was injured were these: Nowery, the plaintiff, and Evans, a shipmate, were on shore leave, drinking beer at a barroom in Antilla, Cuba. While they were so engaged, Nantau, the chief engineer, entered the barroom, accompanied by several fellow officers from the "Brady". At Evans' suggestion, Nowery and Evans got up and left, and after walking around for a short time, they entered another barroom on a side street, where they sat down at a table and ordered a beer. Before they had finished one beer, Nantau came into the barroom and walked over to Evans, and said, "What are you laughing at?" Evans replied, "I am not laughing about anything. I don't want any trouble with anybody," and got up and walked away from the table. Nowery then arose, and said to Nantau, "Look, chief, we are not looking for any trouble. Why don't you go on about your business? We are not bothering anybody." Thereupon Hall, a naval gunner who had appeared in the meantime, "sort of made a grab" for Nowery, but Nantau shoved Hall aside, saying, "I will take care of this myself." Nantau then struck Nowery in the face, sending him sliding across the floor, and an exchange of blows ensued, during the course of which Nowery's nose was injured. Nowery and Evans stated that they had left the first barroom because they thought that Nantau and his party were "looking for trouble", and there was testimony that Nantau had had a few drinks before he accosted Evans. Nantau testified that his purpose in speaking to Evans was simply to let Evans know that he (Nantau) had seen him drinking ashore, because he had very recently suspected Evans of feigning illness aboard ship in order to avoid work. Evans was employed in the engineering department aboard ship and was, therefore, subject to Nantau's supervision and control. Nowery, on the other hand, was a deck maintenance man, and took his orders from the chief mate, not from Nantau. Nowery had had very few contacts with Nantau aboard ship, except to pass the time of day.

Where the injuries complained of were the result of an assault, the Supreme Court has...