Storgard v. France & Canada S.S. Corporation, 101.

• Decision Date: 14 January 1920
• Docket Number: 101.
• Parties: STORGARD v. FRANCE & CANADA S.S. CORPORATION. [1]
• Court: U.S. Court of Appeals — Second Circuit

263 F. 545

STORGARD v. FRANCE & CANADA S.S. CORPORATION. ^[1]

No. 101.

United States Court of Appeals, Second Circuit.

January 14, 1920

Silas B. Axtell, of New York City (Vernon S. Jones, of New York City, of counsel), for plaintiff in error.

B. L Pettigrew, of New York City (W. L. Glenney, of New York City of counsel), for defendant in error.

Before WARD, ROGERS, and HOUGH, Circuit Judges.

WARD Circuit Judge.

The plaintiff seeks to recover indemnity for injuries sustained by him when an able seaman on the five-masted schooner Singleton Palmer on a voyage from St. Nazaire, France, to Newport News. Several fingers of his left hand were jammed between a ring on a bolt and the lips of the band around the mast, which were connected together by the bolt. The charge of negligence was that the owner permitted the bolt to become worn and defective, so that the vessel was unseaworthy as to him. It will not be necessary to go into particulars, because the jury found a verdict for the defendant, and the only question to be decided is whether the court erred in charging them.

The first error relied on is the charge as to contributory negligence as follows:

'But it is true, as Mr. Glenney tells you, that if he had looked he would have seen, before he put his hand on this ring, that it had not gone over; and if he had seen that it had not gone over, knowing that the sail had gone over, it would have been negligence in him to put his hand there and accept the risk, which he would have accepted in that case. He would have contributed to his injury and could not recover.'

No exception was taken to this, and there is no assignment of error to cover it.

It is contended that we may nevertheless consider the question in virtue of section 269 of the Judicial Code, as amended by Act Feb. 26, 1919 (Comp. St. Ann. Supp. 1919, Sec. 1246), which reads:

Section 269: 'All of the said courts shall have power to grant new trials, in cases where there has been a trial by jury, for reasons for which new trials have usually been granted in courts of law. On the hearing of any appeal, certiorari, writ of error, or motion for a new trial, in any case, civil or criminal, the court shall give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties.'

We do not construe the section as authorizing appellate courts to decide on the whole record whether exceptions have been taken or not. The mischief it was intended to correct is just the opposite of overlooking defects due to negligence, ignorance, or inadvertence, viz., the reversal of judgments because of errors, defects, or exceptions which, though raised with technical accuracy, do not affect substantial rights.

Still appellate courts may consider plain errors, not excepted to nor assigned, though this is rarely done except in criminal cases. See our rule 11 and Oppenheim v. United States, 241 Fed., and cases cited at page 628, 154 C.C.A. 383. As we think the charge clearly wrong in this particular, and the case must be tried again because of another error, we think it better to say so.

In suits by seamen, whether in the admiralty or in courts of common law, contributory negligence is not a matter concerning the remedy or the procedure, but a substantive part of the relation. Contributory negligence, as distinguished from willful misconduct, does not defeat the seaman's rights to wages, care, and maintenance to the end of the voyage and a reasonable time thereafter. Nor does it defeat their rights to indemnity, if otherwise entitled to it, though it is an element which may be considered in determining what the amount of indemnity should be. Chelentis v. Luckenbach, 243 F. 536, 156 C.C.A. 234, L.R.A. 1918F, 991, affirmed 247 U.S. 372, 38 Sup.Ct. 501, 62 L.Ed. 1171; John A. Roeblings Sons Co. v. Erickson, 261 F. 986, . . . C.C.A. . . . .

The following portion of the charge was excepted to and duly assigned for error:

'If you do that, then the question will come up whether you shall find the defendant company negligent for allowing a bolt to be worn in that way, so that the accident could happen in the way in which the plaintiff says it happened. It does not follow as a matter of course that you shall find the defendant negligent because you find the bolt had the length which I mentioned, because you must determine whether you think reasonable care required the defendant to apprehend that some such accident as actually happened would happen. By reasonable care I only mean this: That you must put yourself in the position of the shipowner, and say to yourself:

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