Esta v. Persohn
| Decision Date | 30 January 1950 |
| Docket Number | No. 19292,19292 |
| Citation | 44 So.2d 202 |
| Parties | ESTA v. PERSOHN. |
| Court | Court of Appeal of Louisiana — District of US |
Oliver P. Schulingkamp, New Orleans, for plaintiff-appellant.
John E. Fleury, Waverly A. Henning, Gretna, for defendant-appellee.
This suit for damages for personal injuries is brought by a seaman against the owner of a shrimping vessel on which the plaintiff performed services as a member of the crew. It is brought under Section 688, Title 46 United States Code Annotated,--the Merchant Marine Act of June 5, 1920, § 33, 41 Stat. 1007, commonly called the Jones Act.
Plaintiff alleges that he was employed by the defendant on a profit-sharing basis and that his weekly earnings varied with each individual catch of shrimp, and that during the term of his employment his earnings had never been less than $100.00 in any one week and had amounted to as much as $357.00 in other weeks. He alleges that on November 15th, 1946, at 10:30 in the morning, while the vessel 'Buddy' on which he was employed was engaged in shrimping operations in the Gulf of Mexico, about ten miles southeast of Grand Isle, Louisiana, there occurred an accident which was caused by the negligence of the owner of the vessel, and that as a result of the accident a bone in the big toe of his right foot was fractured; that it became necessary to graft new skin on his injured foot, and that he suffered excruciating pain. Plaintiff prays for judgment for $15,000.00.
Plaintiff alleges that the accident occurred as he attempted, under orders of the defendant, to straighten a twist in a rope leading to a board or door, which was part of the front end of the trawl which had been dragged behind the vessel and that this board fell upon his foot causing the injury.
Plaintiff further alleges that there was negligence in the owner of the vessel in the following particulars:
That he did not equip the vessel with a whip line and that he was not using the power winch which was available to haul the trawl aboard so that it could be straightened; that he did not stop the vessel before attempting to straighten the board; that he ordered plaintiff into a dangerous position and that the vessel was not seaworthy.
Defendant filed, first, a plea to the jurisdiction of the State court averring that 'this suit involves an accident in admiralty which is cognizant only by the Admiralty Division of the United States District Court for the Eastern District of Louisiana and not by this Honorable Court.'
We are unable to determine from the record whether this plea was acted upon, though we assume that it was overruled since the defendant filed answer and the case went to trial on the merits.
Defendant admitted the occurrence of the accident and the details of the contract of employment, but averred that as a result of that contract plaintiff was a partner and not an employee of defendant and that therefore he could not maintain an action in damages against defendant. Defendant further denied that there was any negligence on his part, denied that the vessel was unseaworthy, and averred in the alternative that the accident resulted solely from contributory negligence of plaintiff himself.
There was judgment in favor of defendant, and plaintiff has appealed.
We find it clear that there is no merit in the exception to the jurisdiction of the State Courts.
Section 688 of the Jones Act, 46 U.S.C.A., reads as follows:
It is true that in this section there is no unequivocal statement that there is concurrent jurisdiction in the State and Federal courts. However, this same question was considered by us in Macomber v. DeBardeloben Coal Co., La.App., 4 So.2d 483, and we found it to be settled as a result of many decisions of the Supreme Court of the United States. We cited Engel v. Davenport, 271 U.S. 33, 46 S.Ct. 410, 412, 70 L.Ed. 813, in which the Supreme Court said: 'It is clear that the State courts have jurisdiction concurrently with the Federal courts, to enforce the right of action established by the Merchant Marine Act as a part of the maritime law.'
As we have already said the exception to the jurisdiction is without merit.
We next give consideration to the contention of defendant that he and the plaintiff were engaged in a joint venture and that therefore there is no right of action in plaintiff since one partner may not sue another for damages for injuries sustained in the operation of the partnership.
Let us first set forth the admitted facts concerning the relationship between plaintiff and defendant. The vessel 'Buddy' is owned by defendant, who, with plaintiff and a third member of the crew, Cheramie, operated the vessel under an agreement that such profits as might result from each fishing venture were to be divided into five parts; two to go to the owner of the vessel as the vessel's share, one to the owner as his share, one to Cheramie, and one to plaintiff. Plaintiff was not to share in the losses, if any. The vessel was at all times under the sole management and control of defendant and the entire catch on each occasion was sold by the defendant who made the distribution of the proceeds.
That the defendant Persohn was in complete control is shown by his own testimony:
* * *
* * *
* * *
* * *
'
* * *'
In corroboration of the other evidence to the effect that defendant was in complete control of the vessel, plaintiff gave the following testimony:
While there seems to be no dispute over the question, the following testimony shows that even as to the sale of the shrimp plaintiff had nothing to say, this being completely under the control of the defendant:
It is well established, both in the Federal jurisprudence which has grown out of the operation of the Jones Act, and in the jurisprudence of this State in cases involving the question of what is necessary to constitute a partnership, that the major factor in determining whether an individual is a partner or an employee is his right or lack of right to exercise control.
In Glaser v. Katalinich, 169 Wash. 133, 13 P.2d 468, 471, the contract was quite similar to that which is found here with the exception of the fact that there the contract provided also for the sharing of the losses. The Supreme Court of Washington held that the contract did not create a partnership since the plaintiff had no right of control. The Court cited Domandich v. Doratich, 165 Wash. 315, 5 P.2d 310, in which it had been held that the plaintiff was not a partner and was not engaged in a joint venture. The Court, referring to the various employees in the same category with plaintiff, said that none of them had a voice in the control of the vessel, nor had anything to say as to where the fishing would be done, nor as to the manner in which they would perform their various duties. Finally, the Court said: '* * * They were still mere seamen subject to the orders of the captain to the same extent as if they had been employed at a fixed wage, payable regardless of the profits of the venture.'
In Norland, 9 Cir., 101 F.2d 967, 972, is found the following: * * *'
In Louisiana the principle is well settled that there is no partnership unless there is a joint right of control. In Blackburn v. Chenet, La.App., 42 So.2d 288 an owner of a mule and wagon made a contract with the driver under which the owner provided the cash for the purchase of vegetables. The driver drove the wagon, peddled the vegetables, and then made settlement with the owner of the wagon. We held that the driver was not a partner of the owner of the wagon. We cited Buettner v. Polar Bar Ice Cream Co., La.App., 17 So.2d 486 and Shea v. Reems, 36 La.Ann. 966, in each of which it had been held that a contract somewhat...
To continue reading
Request your trial