Schotis v. North Coast Stevedoring Co.

• Decision Date: 01 July 1931
• Docket Number: 22709.
• Citation: 1 P.2d 221,163 Wash. 305
• Parties: SCHOTIS v. NORTH COAST STEVEDORING CO. et al.
• Court: Washington Supreme Court

1 P.2d 221

163 Wash. 305

SCHOTIS v. NORTH COAST STEVEDORING CO. et al.

No. 22709.

Supreme Court of Washington

July 1, 1931

Department 2.

Appeal from Superior Court, King County; Chester A. Batchelor Judge.

Action by Albert F. Schotis against the North Coast Stevedoring Company and the Kawasaki Dockyard Company, Limited (Kabushiki Kaisha Kawasaki Zosenjo). From a judgment in favor of plaintiff against defendant last named, but not against the Stevedoring Company, last named defendant appeals, and, from the judgment in favor of the Stevedoring Company, plaintiff appeals.

Affirmed as to the Stevedoring Company, and reversed and remanded for a new trial as to the other defendant.

BEALS J., dissenting in part.

Stephen V. Carey, Roberts, Skeel & Holman, and Hayden, Merritt, Summers & Bucey, all of Seattle, for appellant.

Wm. Martin and George F. Vanderveer, both of Seattle, for respondent.

BEELER J.

This action was brought by Albert Schotis, a longshoreman, against North Coast Stevedoring Company, a Washington corporation, and Kawasaki Dockyard Company, Limited, a Japanese corporation, to recover for injuries sustained by him in a fall through a hatch of the Japanese steamship Atlantic Maru, on November 22, 1926, while she was lying at a dock at Seattle. The steamship was owned and operated by the Japanese corporation, and was officered and manned by persons of the Japanese race. Schotis was an employee of the stevedoring company, and was one of a gang of longshoremen engaged in unloading cargo from the steamship. He and his fellow workmen were of the Caucasian race.

The action was tried by the court with a jury. The verdict was in favor of the plaintiff against the Japanese corporation but not against the stevedoring company, and judgment followed accordingly. The Japanese corporation has appealed from the judgment against it, and the plaintiff has appealed from the judgment in favor of the stevedoring company. We shall call the Japanese corporation the appellant and Schotis the respondent.

The appellant has assigned thirty errors and has discussed them under almost as many headings of the argument, but, in the view we take of the appeal, we need not go into so much detail. There are two main contentions that go to the plaintiff's right to recover at all from the appellant, and these will be disposed of first.

The respondent, in his original complaint in this action, alleged that at the time he was injured he was in the employ of both of the defendants (the appellant and the stevedoring company) in the capacity of a stevedore and seaman, and that his injuries resulted from their negligence in allowing the hatch into which he fell to remain uncovered, unguarded, and unlighted, and in sending him to work about it without any warning of its condition. He prefaced his complaint with a statement that he elected to maintain the action as one for 'damages at law, with the right of trial by jury,' under section 33 of the Merchant Marine Act, approved June 5, 1920 (USCA, title 46, § 688). This section reads as follows: 'Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.'

The appellant in due time appeared generally in the action by demurrer to the complaint and making certain motions against it; and simultaneously the appellant and its codefendant, the stevedoring company, petitioned for removal of the case to the United States District Court for the Western District of Washington, Northern Division. The petition did not negative the allegation of the complaint that the respondent was an employee of both the appellant and the stevedoring company nor affirmatively allege otherwise. The removal was sought on the sole ground 'that the plaintiff's claim and cause of action, if any, for and on account of said alleged injuries arise under and by virtue of the admiralty and maritime laws of the United States, and, therefore, that said claim and cause of action of plaintiff, if any, constitute a suit of a civil nature, at law, arising under the constitution and laws of the United States.'

The petition for removal was presented and argued to one of the judges of the superior court, and was denied. The record was not taken to the federal court, which alone had power to pass conclusively upon the petitioner's right to remove. The removal was opposed by the respondent upon the ground that it did not disclose any federal question upon the decision of which the defendant's rights depended, and also upon the ground that the Federal Employers' Liability Act (USCA and U.S. Code, title 45, §§ 51 to 59), which by reference is made applicable to actions brought under section 33 of the Merchant Marine Act (46 USCA § 688), forbids the removal to a United States court of any such action brought in a state court. Thereafter the demurrer to the complaint was sustained. The respondent then filed an amended complaint wherein he alleged that, at the time of his injury, he was in the employ of the stevedoring company alone, and he omitted any expression of an election to maintain the action under section 33 of the Merchant Marine Act. In these respects the subsequent amended complaints were the same.

The appellant now insists that the respondent, by asserting an election in his original complaint and by successfully resisting removal on the ground that removal was forbidden by the Federal Employers' Liability Act (45 USCA §§ 51-59), irrevocably elected to maintain his action under section 33 of the Merchant Marine Act (46 USCA § 688); and that, since that act applies only to relations between employer and employee, and the respondent was not in fact an employee of the appellant, a recovery herein against the appellant was precluded absolutely.

In the first place, upon the filing of the petition for removal, the record then showed without question that the respondent was an employee of the appellant as well as of the stevedoring company, and in that situation the action on its face was one under section 33, without an express assertion to that effect by the respondent. Engel v. Davenport, 271 U.S. 33, 46 S.Ct. 410, 70 L.Ed. 813; Hammond Lumber Co. v. Sandin (C. C. A.) 17 F. (2d) 760. The action in that shape clearly was not removable as to either defendant, because of the inhibition of the statute. Anderson v. American & Cuban S. S. Co. (D. C.) 41 F. (2d) 950. Had the appellant separately petitioned for removal and by its petition put in issue the allegation that the respondent was in its employ and shown a separable controversy wherein a right of the appellant would depend upon the decision of a federal question, the appellant's position now would be altogether different. As it was, the appellant lost nothing by the denial of its petition for removal. The petition was groundless, and apparently was interposed solely for its possible effect in binding the respondent to an election. When the amended complaint was filed, alleging that the respondent was an employee of the stevedoring company only, a possible separable controversy removable to the federal court appeared for the first time in this action, but the appellant did not then seek removal.

In the second place, the respondent never actually had a remedy against the appellant under section 33 of the Merchant Marine Act because that act applies only to relations of employer and employee, and the respondent was not in fact an employee of the appellant. His initial assertion of such a remedy was not conclusive. It is elementary that, where one selects a remedy that is not actually available to him, he is not thereby precluded from taking the right course upon discovering his mistake. Godefroy v. Reilly, 146 Wash. 257, 264, 262 P. 639. And herein lies the distinction between the present case and Killes v. Great Northern Ry. Co., 93 Wash. 416, 161 P. 69, and the hypothetical situation assumed in argument in Baird v. Northern Pacific Ry. Co., 78 Wash. 67, 138 P. 325.

The other contention of the appellant going to the whole case requires the statement of a few more facts. The steamship Atlantic Maru arrived at Seattle from San Francisco on the evening of November 21, 1926, for the purpose of discharging cargo from hatchways No. 1, No. 2, and No. 4, but not any from No. 3, where the respondent fell. The longshoremen under the stevedoring company, worked the cargo the following day from hatchways No. 1, No. 2, and No. 4, until about 4:15 in the afternoon, when they were finished except for the replacing of the hatch beams on the hatches from which cargo had been taken. No cargo was discharged from hatchway No. 3 during the vessel's stay in Seattle, and the main deck hatch opening remained covered until after the accident. The openings of No. 3 on the under two decks were uncovered, though the beams were in place. The other under deck hatches were in the same condition when the working of the cargo commenced. When the gang of which the respondent was a member was replacing, or had just finished...