Peterson v. Pacific S.S. Co.

• Citation: 261 P. 115,145 Wash. 460
• Decision Date: 03 November 1927
• Docket Number: 20749.
• Parties: PETERSON v. PACIFIC S. S. CO.
• Court: United States State Supreme Court of Washington

261 P. 115

145 Wash. 460

PETERSON v. PACIFIC S. S. CO.

No. 20749.

Supreme Court of Washington

November 3, 1927

Department 2.

Appeal from Superior Court, King County; Findley, Judge.

Action by Carl G. Peterson against the Pacific Steamship Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Grosscup Morrow & Wallace and J. O. Davies, all of Seattle, for appellant.

Harry Ellsworth Foster, of Seattle, for respondent.

HOLCOMB J.

Within two years after an alleged injury, respondent brought an action against appellant to recover the sum of $56,360 damages for personal injuries, claiming that he was injured on December 20, 1924, while acting as articled boatswain on the Admiral Dewey, a steamship owned and operated by appellant, while voyaging from Seattle to San Francisco. The injury alleged is to respondent's left knee. He claims that the injury was due to the negligence of the mate of the vessel in ordering him to secure a cargo on the deck of the vessel during a heavy storm, by reason of having failed to cause the vessel to 'heave to' or slow down, and in failing to have life lines put up while he and the crew were securing the cargo.

Respondent alleges that the action was brought under section 20 of the Act of Congress of March 4, 1915, as amended by section 33 of the Act of June 5, 1920, known as the Merchant Marine or Jones Act (46 USCA § 688 [U. S. Comp. St. § 8337a]).

Appellant answered, denying that the action was brought under the so-called Jones Act, and setting up affirmatively in its denials and by way of separate affirmative defense that prior to the bringing of the action by respondent he had elected to and did take compensation for the injuries received under the general admiralty law in existence at the time of the injury and prior to the enactment of the Jones Act and had received from appellant full and complete compensation for the injury under the maritime law. It is alleged that he could not elect to take compensation for his injuries under the Jones Act and maintain suit under that act for such injuries.

Respondent in the court below, moved to strike the affirmative allegations in the answer of the appellant, and demurred to the separate affirmative defense. The court granted the motion to strike and sustained the demurrer, allowing appellant to file an amended answer. Appellant filed an amended answer, purporting to set up more in detail the same defenses. Respondent again moved to strike the amended answer, which was granted. The cause was then tried in the lower court on the complaint and the general and special denials contained in appellant's original answer. Upon trial, the jury rendered a verdict in favor of respondent for $25,000, which, upon a motion for a new trial, the court ordered be reduced to $12,500, or, in the alternative, a new trial would be granted. Within the time required by the order, the respondent remitted the $12,500, whereupon judgment was entered thereon.

At the trial, appellant submitted instructions which were refused by the trial court, to the effect that plaintiff had received compensation for his injuries under the maritime law and could not therefore recover under the Jones Act.

Appellant also moved for a directed verdict upon the same grounds, which motion was denied, and in a motion for judgment non obstante veredicto the same contention was urged, without success.

While there is some conflict in the evidence, the case made by respondent, conforming to the allegations of his complaint and which the jury were entitled to believe, was, in substance, as follows:

The ship, while on the voyage, had on board a deck cargo of clams and oysters in cases, lashed on the aft port quarter. Heavy weather was encountered on the morning of December 20, and about 8 o'clock in the morning the deck cargo came adrift, and respondent, as boatswain, was ordered by the chief officer to take the crew back and secure the cargo. Respondent testified that he protested, insisting that it was not safe, that the ship ought to be slowed down or 'hove to' in order for the men to work there. The vessel was then shipping green water, and, if it was slowed down and hove to, the seas would not break over the ship, but it would be right on top of the sea, and, if a life line were stretched, the men would have something to hold onto. The ship was then making from 6 to 8 miles per hour, which, under the conditions of wind and weather, was too great speed. It was not slowed down or hove to, and no life lines were stretched. When respondent and his crew got to the cargo, the flagstaff was found displaced, and, to prevent it from falling on the men while at work, they started to remove it, and, while in the act of removing it, the vessel shipped a heavy sea, throwing a heavy box against respondent, which jammed his knee up against the rudderhead. The injury caused the knee to swell so badly that his trousers had to be cut off. His knee was found to be badly cut and injured. There is evidence on behalf of respondent, not only by his shipmates, but also master mariners of many years' experience, that under such circumstances life lines should have been stretched, and that the ship should have been slowed down somewhat, although it was necessary, in order to have steerageway, to maintain a speed of from 2 to 3 miles an hour.

There was some testimony showing that respondent was permanently incapacitated from again engaging in any work requiring him to be upon that knee, because the condyle, or head of the tibia, is fractured clear across, causing a drop of from one-fourth to three-eighths of an inch, so that the head of the fibula projects above it, making the knee unstable and wobbly, and necessitating the wearing of a hinged steel brace on it permanently.

At the time of the injury, respondent was 36 years of age, had followed the sea 21 years prior to the injury, and had a life expectancy of 31.7 years. He was earning at the time $80 per month, with 6 per cent. of his annual salary as bonus, and his board and room in addition, which he valued at $1.50 per day for board, and 50 cents per day for lodging, which amounts were allowed when the ship was in port. It cost respondent at least $2 a day to get the same board ashore. His annual earnings, therefore, will be seen to be about $1,917, or about $160 a month.

When the ship arrived in San Francisco, respondent was immediately taken to the United States Marine Hospital, where he remained from December 22, 1924, to April 3, 1926, about 16 months all together, during which time he lost in wages about $1,300.

The knee was painful to respondent up to October, 1925. An operation had been performed at the marine hospital shortly after respondent was taken there, and a second operation was performed in October, 1925. There is little doubt but that, according to the evidence, respondent will never again be able to follow the sea as an occupation, and there is no other occupation for which he is fitted.

The negligence alleged and testified to consisted of: (1) That the order of the mate to lash the cargo was a negligent order under the circumstances; (2) that it was negligence on the part of defendant to fail to have the ship hove to or slowed down; and (3) that it was negligence to fail to have life lines put up before respondent undertook to lash the cargo.

The primary question to be determined, as stated by appellant, is: Can a seaman who has received a personal injury in the performance of his duties, while on a ship, after having received full compensation for such injury under the general maritime law, thereafter maintain an action and recover full damages for the same injury under the common law, as modified by the statutes of the United States relating to railroad employees?

Appellant contends that the law governing the relation of seamen to the ship and its owner, as it exists to-day under the old rules, was laid down in the case of The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760. In that case, after a careful research, the United States Supreme Court summarized the law as follows:

'1. That a vessel and her owners are liable, in case a seaman falls sick or is wounded in the service of the ship, to the extent of his maintenance and cure, and to his wages, at least so long as the voyage is continued.

'2. That the vessel and her owners are, both by English and American law, liable to an indemnity for injuries received by seamen in consequence of the unseaworthiness of the ship, or a failure to supply and keep in order the proper appliances appurtenant to such ship.

'3. That all the members of the crew, except perhaps the master, are, as between themselves, fellow servants, and hence seamen cannot recover for injuries sustained through the negligence of another member of the crew beyond the expense of their maintenance and cure.

'4. That the seaman is not allowed to recover an indemnity for the negligence of the master, or any member of the crew, but is entitled to maintenance and cure, whether the injuries were received by negligence or accident.'

Since this case is brought under the Merchant Marine Act, as amended in 1920 (41 Stat. 1007), and the federal statutes and decisions, so far as any decisions can be found which are applicable, are controlling, it is well, for a proper understanding of the case, to give a short history of the evolution of the law upon the matter. The question is federal, but state courts have concurrent jurisdiction. Panama R. R. Co. v. Johnson, 264 U.S. 375, 44 S.Ct. 391, 68 L.Ed. 748; Panama R. R. Co. v. Vasquez, 271 U.S. 558, 46 S.Ct. 596, 70 L.Ed. 1085.

Under the old law, as enunciated in The Osceola, supra, a seaman could not recover damages for personal injuries except when ...