Pearson v. Tide Water Associated Oil Co.

• Decision Date: 03 November 1950
• Citation: 223 P.2d 669
• Parties: PEARSON v. TIDE WATER ASSOCIATED OIL CO., Inc. Civ. 13800.
• Court: California Court of Appeals Court of Appeals

Page 669

223 P.2d 669

PEARSON v. TIDE WATER ASSOCIATED OIL CO., Inc.

Civ. 13800.

District Court of Appeal, First District, Division 2, California.

Nov. 3, 1950.

Hearing Grantee Dec. 26, 1950. ^*

Hoge, Pelton & Gunther, Leo V. Killion, San Francisco, for appellants.

Gladstein, Andersen, Resner & Sawyer, Herbert Resner, San Francisco, for respondents.

PER CURIAM.

This is an appeal by defendant Tide Water Associated Oil Company, Inc., from a judgment on a general verdict awarding plaintiff Pearson $10,447 damages for injuries incurred on navigable waters while employed as a pumpman aboard a tanker, The Frank G. Drum, operated by defendant.

The complaint, entitled 'For Damages, Maintenance and Cure (under the Jones Act)' alleged in substance that on June 25, 1946, plaintiff was ordered by the engineer of the tanker to remove certain Alemite fittings for the purpose of greasing, that said fittings 'were in an unseaworthy, unsafe and dangerous condition' in that they had been painted over and were frozen and could not be easily loosened for the purpose of greasing and according to plaintiff's information and belief also 'unseaworthy' in that they had crystallized because of disuse and being painted over and exposed to the weather; that defendant negligently ordered plaintiff to strike said fittings with a hammer or other tool for the purpose of loosening same, negligently failed to provide plaintiff with goggles or glasses and with safe, proper and sufficient tools with which to loosen and remove said fittings; that defendant knew or should have known of the 'unseaworthy condition' of said fittings and that therefore the work should have been done at a ship repair yard with tools and machinery safe and sufficient for the purpose; 'that as a direct and proximate result to the unseaworthiness of said vessel and her gear, appliances and appurtenances and the negligence and carelessness of defendants' when plaintiff struck one of said fittings with the hammer or tool which he was using, a chip broke off said fitting and struck plaintiff in his left eye causing the loss of sight of said left eye to plaintiff's general damage in the amount of $35,000; that defendant negligently failed to provide plaintiff with proper medical care within a reasonable time after said injury, thereby causing plaintiff severe suffering and further physical injury and disability and loss of any chance of saving the sight of his eye by prompt care to plaintiff's further damage in the amount of $10,000. Moreover plaintiff prayed for maintenance money, wages and cure. It is expressly alleged 'That plaintiff brings and maintains this action under the provisions of section 33 of the Act of June 5, 1920, C. 250, 41 Stat. 1007, commonly known as the Jones Act [46 U.S.C.A. § 688].'

The appeal is based on insufficiency of the evidence to support the verdict and error in instruction and admission of evidence. A preliminary question amply discussed by the parties is whether on the basis of the above complaint plaintiff can only recover under the provisions of the Jones Act or also under the general maritime law because of unseaworthiness of the vessel or its appurtenances.

According to the general maritime law a seaman injured in the service of the ship has always, except in case of wilful misconduct on the seaman's part, a right to maintenance and cure including wages, The Osceola, 189 U.S. 158, 23 S.Ct. 483, 487, 47 L.Ed. 760; Aguilar v. Standard Oil Co., 318 U.S. 724, 63 S.Ct. 930, 934, 87 L.Ed. 1107, and moreover if his injury is caused by unseaworthiness of the vessel or its appurtenant appliances and equipment a right to indemnity (compensatory damages) for his injury regardless of the owner's fault. The Osceola, supra; Carlisle Packing Co. v. Sandanger, 259 U.S. 255, 42 S.Ct. 475, 66 L.Ed. 927; Mahnich v. Southern S. S. Co., 321 U.S. 96, 64 S.Ct. 455, 457-458, 88 L.Ed. 561; Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 875-877, 90 L.Ed. 1099. Under the general maritime law there is, however, because of the fellow servant rule, no liability of the owner for injury caused to a seaman by the sole negligence of a ship's officer or member of the crew. The Osceola, supra; Pacific S. S. Co. v. Peterson, 278 U.S. 130, 49 S.Ct. 75, 76, 73 L.Ed. 220; O'Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 63 S.Ct. 488, 491, 87 L.Ed. 596; Mahnich v. Southern S. S. Co., supra. By the Jones Act, 46 U.S.C.A. § 688, a right of action against the owner for injuries caused by negligence either of the owner himself or of the master or members of the crew was made available to seamen; by proving for the applicability of the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-60, the Jones Act eliminated the follow servant rule but established the requirement of negligence as basis of the new action. De Zon v. American President Lines, 318 U.S. 660, 63 S.Ct. 814, 87 L.Ed. 1065; Jamison v. Encarnacion, 281 U.S. 653, 50 S.Ct. 440, 442, 74 L.Ed. 1082; Seaboard Air Line R. Co. v. Horton, 233 U.S. 492, 34 S.Ct. 635, 639, 58 L.Ed. 1062; Adams v. American President Lines, 23 Cal.2d 681-684, 146 P.2d 1. An action in personam for any of the three remedies thus available to an injured seaman need not be brought in an admiralty court exclusively but may under suitable circumstances be brought on the law side of a federal court or in a state court. The saving to suitors clause, 28 U.S.C.A. § 1333(1), formerly § 41(3); Engel v. Davenport, 271 U.S. 33, 46 S.Ct. 410, 70 L.Ed. 813; Panama R. Co. v. Vasquez, 271 U.S. 557, 46 S.Ct. 596, 70 L.Ed. 1085; Garrett v. Moore-McCormack Co., 317 U.S. 239, 63 S.Ct. 246, 249-250, 87 L.Ed. 239; Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 874, 90 L.Ed. 1099. However, the common law court taking cognizance of such a case must apply to principles of admiralty law. Carlisle Packing Co. v. Sandanger, supra; Garrett v. Morre-McCormack Co., supra; Intagliata v. Shipowners & Mer. Towboat Co., 26 Cal.2d 365, 371-372, 159 P.2d 1. It is undisputed that the action for maintenance and cure and the one under the Jones Act are cumulative and can be brought combined. Garrett v. Moore-McCormack Co., supra; Occidental Ind. Co. v. Industrial Acc. Comm., 24 Cal.2d 310, 312, 149 P.2d 841.

On the question whether the remedy based on unseaworthiness under the general maritime law and the one under the Jones Act are inconsistent, and whether the injured seaman must elect between the two there has for some time been a split in the authorities. In Skolar v. Lehigh Valley R. Co., 60 F.2d 893, 894 and McGhee v. United States, 165 F.2d 287, 290, the Circuit Court of Appeals for the Second Circuit expressed the opinion that the seaman could not present both bases for recovery in the same suit and at any rate might not go to trial on both causes of action simultaneously, this because of the words 'at his election' contained in the Jones Act, and of certain dicta in Supreme Court decisions which seemed to point in that direction. As late as February of this year the same position was taken by the United States District Court, S. D. California, C. D., in Reed v. The Arkansas, 88 F.Supp. 993. However, the Circuit Court of Appeals for the Third Circuit adopted the contrary view in Branic v. Wheeling Steel Corporation, 152 F.2d 887, 890; German v. Carnegie-Illinois Steel Corporation, 156 F.2d 977; and McCarthy v. American Eastern Corporation, 175 F.2d 724, followed by some recent decisions of lower courts; Erickson v. Shamrock Towing Co., D.C., 81 F.Supp. 850; Platt v. Chesapeake & O. Ry. Co., 82 F.Supp. 968; Borgman v. Sword Line, Sup., 81 N.Y.S.2d 445. The reasoning given for this view in the McCarthy and Platt cases was based on Baltimore S. S. Co. v. Phillips, 274 U.S. 316, 47 S.Ct. 600, 71 L.Ed. 1069, which held that an action for damages of an injured seaman under the general maritime law and under the Jones Act were one and indivisible and that a prior judgment in admiralty under the general maritime law, denying damages over and above maintenance and cure was res judicata and barred recovery in the later action at common law under the Jones Act which could have been asserted in the same action. Moreover the circuit court pointed out the great disadvantage at which the injured seaman would be if he was forced to decide in advance of judicial determination which of the two possible bases of his case was better grounded in law and in fact under peril of being forever precluded from asserting the other ground. The reasoning of the McCarthy case has concededly convinced the Circuit Court for the Second Circuit, which in Balado v. Lykes Bros. S. S. Co. Inc., 179 F.2d 943, 945, decided this year, stated that in accordance with the view expressed in the McCarthy case it was of opinion that in the future there will be no necessity for an election of remedy and that election will only be required between a trial by jury and a suit in admiralty. We must accept this as the law, where at this time it represents the overwhelming weight of authority.

The fact that the complaint alleged that it was brought under the Jones Act does not prevent recovery on the ground of unseaworthiness under the general maritime law if the complaint contains sufficient facts supporting such recovery and defendant is not prejudiced. In admiralty the courts decide cases on equitable principles disregarding technicalities, Davis v. Adams, 9 Cir., 102 F. 520, 523, et seq.; 2 Benedict on Admiralty, 6th Ed. § 223, and award any relief which the law warrants under all the facts pleaded, The Gazelle, 128 U.S. 474, 9 S.Ct. 139, 142, 32 L.Ed. 496; Davis v. Adams, supra; Smith, Kirkpatrick & Co. v. Colombian S. S. Co., 5 Cir., 88 F.2d 392, 395, irrespective of the theory of law on which the action purports to be based or the name given to it. Davis v. Adams, supra; Rainey v. New York & P. S. S. Co., 9 Cir., 216 F. 449, 452; Bernstein v. Morse, D. C., 261 F. 435, 436; The...