Rouchleau v. Silva

• Decision Date: 09 May 1950
• Citation: 217 P.2d 929,35 Cal.2d 355
• Court: California Supreme Court
• Parties: ROUCHLEAU v. SILVA. L. A. 21215.

Page 929

217 P.2d 929

35 Cal.2d 355

ROUCHLEAU v. SILVA.

L. A. 21215.

Supreme Court of California, in Bank.

May 9, 1950.

Lasher B. Gallagher, Los Angeles, for appellant.

Harold P. Lasher and Don L. Yale, San Diego, for respondent.

SHENK, Presiding Justice.

This is an appeal by the defendant from a judgment for the plaintiff in an action for recovery under the Jones Act, Title 46 U.S.C.A. § 688.

The plaintiff is the widow of James Louis Rouchleau who, in his lifetime, was employed as a seaman on the commercial fishing vessel the 'Emma R. S.' owned by the defendant. While engaged in cleaning up activities after unloading fish in San Diego Harbor, Rouchleau fell from a plank which was an appliance of the vessel into an empty fish hold and died two days later. The plaintiff sought $25,000 general damages plus funeral expenses. Trial without a jury resulted in a judgment for $17,000.

The defendant first contends that the complaint does not state a cause of action under the Jones Act. In personal injury and death cases that act makes applicable to seamen the provisions of the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. Section 51 of that act extends a right of action to the plaintiff widow as the personal representative of the deceased seaman if his death has resulted from injuries in whole or in part due to defendant's negligence, or by reason of any defect or insufficiency, due to the defendant's negligence, in the boat's appliances. It appears to be the defendant's contention that there is no allegation in the complaint other than by way of legal conclusion that an alleged failure of the defendant or an alleged defect or insuficiency of the appliance was due to his negligence. The complaint, however, does allege probative facts bearing on the conclusions of the defendant's failure, neglect and breach of duty. The allegations are sufficient to present the question whether the defendant negligently failed to supply a reasonably safe appliance. See Brown v. Western R. Co., 338 U.S. 294, 70 S.Ct. 105. The trial proceeded in conformity with the allegations and on the theory of negligence under the Jones Act. No demurrer was interposed. The findings of the trial court were based on the determination that the injuries resulting in death were in part caused by the negligence of the defendant in providing an unsafe appliance. The defendant was not misled, and if there was lack of form in the drafting of the complaint the defects were cured by the trial on the real issue without objection on the ground that the complaint insufficiently tendered the issue of negligence under the Jones Act, and by the specific finding of negligence based on the evidence relevant to that issue. Colbert v. Colbert, 28 Cal.2d 276, 281, 169 P.2d 633.

The next question is whether there is sufficient evidence of the negligence which is a material element of the plaintiff's case. Showalter v. Western Pac. R. Co., 16 Cal.2d 460, 471, 106 P.2d 895; Vojkovich v. Ursich, 49 Cal.App.2d 268, 273, 121 P.2d 803. In presenting this question the defendant contends that, following the admiralty practice, he is entitled to a trial de novo in the reviewing court. It may be assumed that parties to an action in a state court are entitled to the rights afforded them under federal law in admiralty matters. See Garrett v. Moore-McCormack, 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 236; Intagliata v. Shipowners and Merchants Towboat Co., Ltd., 26 Cal.2d 365, 159 P.2d 1. But it does not fellow that if there is substantial credible evidence which supports the trial court's findings unaffected by error, this court will not affirm the judgment. The decisions, including those relied on by the defendant, indicate that the findings supported by competent evidence should not be upset except for manifest error or unless they are clearly wrong. Davidson Steamship Co. v. United States, 205 U.S. 187, 191, 27 S.Ct. 480, 51 L.Ed. 764; Crist v. United States War Shipping Administration, 3 Cir., 163 F.2d 145, 146; Smrekar v. Bay & River Nav. Co., 69 Cal.App.2d 654, 657, 160 P.2d 85, certiorari denied 326 U.S. 782, 66 S.Ct. 338, 90 L.Ed. 473; Macomber v. DeBardeleben Coal Co., Inc., 200 La. 633, 634, 649, 8 So.2d 624, certiorari denied, 317 U.S. 661, 63 S.Ct. 61, 87 L.Ed. 532.

The following appears by witnesses who testified at the trial and from the defendant's deposition:

The defendant had owned and captained the vessel since 1928 when the deceased entered his employ. The vessel was taken by the Navy during the late war and was thereafter returned to the defendant. The plank in question was not a part of the equipment until the Navy took the boat and made some alterations including the addition of a raised deck. The defendant retained the alterations, and the plank as an appliance of the vessel. The trip at the close of which the injury occurred was the second for the deceased after the return of the boat to the defendant.

The plank, four feet long, twelve inches wide and two to three inches in thickness was maintained as a catwalk between the raised deck forward and a bait tank aft. The level of the raised deck was about one foot above the top of the bait tank. Between the raised deck and the bait tank was a covered opening to a fish hold below. The plank was used as a bridge over the hold opening between the raised deck and the bait tank. It was not fixed, but movable, and was held in place by cleats on the underside. There were neither cleats nor covering on the upper surface. Ordinarily a skiff adjoined the plank in place and afforded some support in its use. There was no other handhold or railing. During fishing operations the plank was used in getting to the bait tank from the pilot house which was forward of the raised deck. During unloading operations it was necessary to remove the plank and the skiff in order to bring up the fish from the hold below through the opening under the plank. It was also in evidence that the plank was customarily used by all members of the crew at their own convenience at any time at sea or in port. Another means of access to the bait tank was afforded by a companionway between the upper and lower decks and by a six foot ladder to the top of the bait tank. The men had no specific instructions about the use of either way and whenever they had occasion to go to the bait tank they usually crossed on the plank instead of using the companionway and ladder.

On October 4, 1945, when the trip started, the deceased signed on as a seaman. While at sea the defendant sustained an injury to his hand which required that he be taken by airplane to the mainland. Before he left an agreement was signed by the crew that the deceased would act as master until such time as the defendant was physically able to return to the boat. The defendant met the boat on November 13th after it returned to port and proceeded with it from the inner harbor to where it was docked. After stopping at the Custom house for an hour the vessel tied up at Van Camp's dock, where it was unloaded the following day. The defendant came on board again during or after the unloading. He looked into the well between the bait tank and raised deck and saw that it was empty. He made no inspection of the plank at any time. The decedent Rouchleau and another seaman were engaged in washing down the equipment, bait tank, wells and decks. The plank was put in place during or at the close of the cleaning operations and was in a wet condition. The skiff was still in the water. The deceased was in the act of stepping from the bait tank to the plank. He had one foot on the plank and was about to take a step forward when he lost his footing and fell into the open well below, sustaining the injuries from which he died.

The court found negligence on the part of the defendant in failing to maintain the appliance in a reasonably safe condition. Responsive to the issues raised by the answer the...