Swayne & Hoyt, Inc. v. Barsch

• Decision Date: 09 August 1915
• Docket Number: 2510.
• Citation: 226 F. 581
• Parties: SWAYNE & HOYT, Inc., v. BARSCH.
• Court: U.S. Court of Appeals — Ninth Circuit

226 F. 581

SWAYNE & HOYT, Inc., v. BARSCH.

No. 2510.

United States Court of Appeals, Ninth Circuit.

August 9, 1915

Rehearing Denied November 8, 1915. [Copyrighted Material Omitted]

Ira A Campbell and John F. Cassell, both of San Francisco, Cal (Snow & McCamant and George B. Guthrie, both of Portland, Or., of counsel), for plaintiff in error.

Giltner & Sewall, of Portland, Or., for defendant in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge.

The parties herein will be designated plaintiff and defendant, as in the court below. The plaintiff recovered a judgment against the defendant, a corporation, for damages on account of personal injuries sustained by him while working on a dock in discharging the cargo of the steamer Camino, at Portland, Or.

One of the assignments of error is that the court denied the defendant's request to instruct the jury to return a verdict for the defendant on the ground that, by the uncontradicted evidence in the case, the defendant was the managing agent only of the steamship. The assignment raises the question whether there was evidence to go to the jury to show that the defendant, rather than the owner, was individually responsible as the employer of the plaintiff. The defendant was a corporation of the state of California, doing business there, and at Portland through its local agent Kennedy. Kennedy testified that it was his duty to act for the defendant in the capacity of agent in directing the movement of ships that were being run into the port of Portland, to pay all bills for the ships, including the bills of men who helped to load and unload the same; that the plaintiff was on the defendant's pay roll, and was working for the defendant; that he (Kennedy) accounted to the defendant for the money paid out to the men; that it was the defendant's money that he was paying out to the men for unloading the ship; that he did not report the accident to plaintiff to the owner, but to the defendant; that the defendant was the managing agent of the Camino, with power to direct the movements and the operations of the officers and crew, and that it employed the officers of the ship. There was evidence, also, that when the plaintiff made his claim for damages, Kennedy sent him to the defendant at San Francisco, and that he there had negotiations with the defendant with a view to a settlement, and that the officers of the defendant did not disclaim their responsibility, or deny that the plaintiff had been working for the defendant, and the plaintiff testified that they acknowledged that the Camino was operated by them. Kennedy testified that, at the instance of the defendant, he took the plaintiff to a doctor after his return from San Francisco. It is not disputed that on the bow of the Camino were painted the words, 'Swayne & Hoyt, Managers.'

The defendant, while admitting the general rule that if an agent would avoid liability on a contract which he enters into in his capacity as agent, he must disclose the identity of his principal contends that its principal was sufficiently disclosed by the words at the head of the pay roll, on which the plaintiff acknowledged receipt of money 'from Captain . . . for account of above steamer and her owners. ' But there was evidence that the plaintiff signed the pay roll without reading the printed form thereof; and, even if he had read it, it was not conclusive proof to him that the defendant itself was not the owner as well as the manager. Nor was the plaintiff put upon inquiry by those words in the pay roll.

'Knowledge by the third person of facts and circumstances which would, if reasonably followed by inquiry, have disclosed the identity of the principal does not operate to relieve the agent from personal liability, but the third person must have actual knowledge of the principal's identity.' 31 Cyc. 1558, note, and cases there cited.

In Ye Seng Co. v. Corbitt (D.C.) 9 Fed. 423, Judge Deady held that the signature of the agents, 'Corbitt & Macleay, Agent for Owners of the American Bark Garibaldi, of Portland, Oregon,' was not sufficient to disclose the name of the principal. See, also, Farrell v. Campbell, 3 Ben. 8, Fed.Cas.No. 4,681. In this connection the defendant advances the contention that what was done on board the Camino must have been done by authority of the owners represented by the master, and that the plaintiff, who was employed by Kennedy for the defendant, was serving a different employer, and it invokes the rule that when two masters are engaged in a common undertaking, one is not liable to his servant for an injury occasioned by the servant of the other. There is in the record no exception or assignment of error which raises the contention so made, but it is a sufficient answer to it to say that there was evidence that the defendant had full charge of the operation of discharging the ship. It was the manager of the ship, with its corporate name painted thereon as manager, and the jury may have found that the defendant, by its own authority, had placed in charge of the whole operation the mate, who was shown to have been the superintendent in charge. In view of all the evidence we think that the question of the defendant's liability was properly left to the jury.

It is contended that the trial court erred in applying as the law of the case the employers' liability law of Oregon. But no exception was taken to the charge of the court that under the statute of the state of Oregon, all machinery other than that operated by hand power, whenever necessary for the safety of the general public, shall be provided the same, or for the safety of the general public, shall be provided with a system of communication by means of signals, or to the instruction which followed that, if the jury found that the injury to the plaintiff was caused by the failure of the defendant to comply with the provisions of that statute, that failure would be negligence within the meaning of the law, and would entitle the plaintiff to recover.

But it is said that in effect an exception was reserved to that portion of the charge by the exception which was saved to the refusal of the court to instruct, as requested by defendant, that the foreman and the engineer operating the winch were fellow servants of the plaintiff, and that for negligence of the foreman the plaintiff could not recover in the action. The ground of the exception was that the employers' liability law of the state of Oregon had no application to the loading or unloading of vessels coming in and out of the city of Portland, and engaged in interstate commerce. It is too clear to require discussion that the exception called in question only that portion of the state employers' liability law which provided that the negligence of the superintendent, manager, foreman, or other person in charge or control of the work shall not be a defense to such an action.

The sole question, therefore, presented to this court on the assignment is whether it was error to refuse the requested instruction. The refusal of that instruction was not error, for two reasons: First, upon the evidence, and irrespective of the Oregon statute, the court would not have been justified in charging the jury that the foreman referred to in the requested instruction was, as a matter of law, a fellow servant with the plaintiff. The foreman was Ahlin, the mate of the vessel, and he was in full charge of the operation of unloading the same, in the progress of which the plaintiff was injured. There was a dock boss named Dosch, who had direction of the movements of the men on the dock, but the 'general superintendent over all,' as the plaintiff testified, was the mate, and all who were engaged in the operation took their orders from him. As the defendant was a corporation of California, and was engaged in a work of discharging the ship at a dock in Oregon, it was necessarily represented at that place by some officer, and that officer evidently was the mate. There was no testimony to the contrary, although one of the witnesses testified that the general superintendent over all was 'the mate and Mr. Kennedy.' Kennedy was the local agent of the defendant corporation at Portland, and kept the pay roll. Dosch, the dock foreman, engaged the men from the secretary of the Longshoremen. It does not appear from the testimony who had the power to discharge the men, but it should be assumed that the mate had that power, from the fact that he was the general superintendent over all who were engaged in the work, and it may be assumed that he was made superintendent by the defendant, for it was the manager of the ship.

Second, it was not error to refuse the requested instruction, for the reason that General Laws of Oregon 1911, p. 16, provide that negligence of a fellow servant shall not be a defense to an action brought to recover for injuries suffered by an employe in the case of the neglect of any person engaged as superintendent, manager, foreman, or other person in charge or control of the works, plant, machinery, or appliances. The plaintiff was employed in the state of Oregon, not by the ship or by her owners, but by a corporation locally operating there, to engage in a work in that state, and in his common-law action to recover damages for injuries sustained in that work, he is entitled to the protection of that provision of the state statute.

We find no merit in the contention that because the Camino was engaged in interstate commerce that statute was inapplicable. There can be no question that, until Congress enacted a law regulating the same subject-matter, the state had the power to enact and enforce its own statute. The decision in South Covington Ry. v. Covington, 235 U.S. 537, 35 Sup.Ct. 158, 59 L.Ed....