Van Camp Sea Food Co. v. Nordyke

• Decision Date: 05 April 1944
• Docket Number: No. 10392.,10392.
• Parties: VAN CAMP SEA FOOD CO., Inc., et al. v. NORDYKE.
• Court: U.S. Court of Appeals — Ninth Circuit

140 F.2d 902 (1944)

VAN CAMP SEA FOOD CO., Inc., et al. v. NORDYKE.

No. 10392.

Circuit Court of Appeals, Ninth Circuit.

February 11, 1944.

Rehearing Denied April 5, 1944.

Lasher B. Gallagher, of Los Angeles, Cal., for appellants.

Andersen & Resner, George R. Andersen, and Herbert Resner, all of San Francisco, Cal., and Charles J. Katz, of Los Angeles, Cal., for appellee.

Before WILBUR and STEPHENS, Circuit Judges, and McCORMICK, District Judge.

McCORMICK, District Judge.

This appeal is from a judgment of the District Court on the verdict of the jury for damages in favor of the appellee, an injured seaman.

The complaint in the court below contained two causes of action for damages, both being expressly maintained under the provisions of section 33 of the Act of June 5, 1920,¹ sometimes called the Jones Act.

The first cause of action substantially alleged that at all applicable times plaintiff seaman was a resident of San Jose, California; that the defendant Van Camp Sea Food Co., Inc., a corporation, had its office in San Pedro, California, and that defendant Antonio Francisco was a resident of San Pedro, California; that throughout the involved period of time Francisco was acting as the agent of the corporate defendant and that each of the defendants owned and operated the American fishing vessel "Madeirense;" that on August 28, 1941, plaintiff was hired by the defendants and signed on the "Madeirense" as a radio operator-fisherman; that while the vessel was at sea and engaged in fishing near the Galapagos Islands, on or about September 12, 1941, the plaintiff while engaged in the act of fishing for tuna off the "Madeirense" suffered a fracture of the distal end of his right ulna and that such injury was very painful and disabled the plaintiff from performing any further duties aboard the vessel as a fisherman; that there was no doctor aboard the "Madeirense;" that notwithstanding the injury sustained by the plaintiff, the defendants failed and refused to take the plaintiff to the nearest port where adequate medical attention could be procured until the "Madeirense" completed its voyage in normal course and arrived at San Diego, California, on October 10, 1941; that due to the alleged carelessness and negligence of the defendants in failing seasonably to provide plaintiff with proper and adequate medical care and attention within a reasonable time after the injury it was necessary to perform a surgical operation upon the fractured ulna and resect a portion of the head of the ulna; that immediate, proper and competent medical attention and facilities could have been provided to plaintiff by the defendants within a reasonable time after plaintiff sustained his injury; that due to the carelessness and negligence of the defendants in failing to so provide proper and adequate medical care and attention, the plaintiff has suffered injury, pain and disability in addition to that which would have resulted from the initial and original injury; that as a result of the defendants' negligence plaintiff sustained general damages in the sum of $15,000.

The second cause of action incorporated all of the allegations of the first cause of action and substantially alleged additionally that as a result of the pleaded carelessness and negligence of the defendants the plaintiff was forced to obtain the services of a competent doctor to care for and attend his injury at an expense unknown definitely at the time of the commencement of the action but ascertainable later; that, also, as a result of the defendants' alleged carelessness and negligence the plaintiff was unable to perform work for a period of three months, to his further damage in the sum of $900.

The defendants' joint answer in the court below denied all the allegations in the complaint of carelessness or negligence and also of any damages; denied that defendant Antonio Francisco was at any time the owner or operator of the "Madeirense;" denied that the plaintiff was hired by defendant Francisco or that the relationship of employer and employee existed between him and the plaintiff; alleged that defendant Francisco at all times mentioned in the first cause of action of the complaint was employed on the "Madeirense" as sailing master; admitted that on or about September 12, 1941 the "Madeirense" was engaged in fishing near the Galapagos Islands and at that time and place aboard said vessel plaintiff was engaged in fishing for tuna, and that while so engaged in said act of fishing he suffered a fracture of the distal end of the right ulna and that such injury disabled plaintiff from performing any further duties aboard the "Madeirense" as a fisherman during the balance of the fishing trip; the defendants also denied that the plaintiff had any right to maintain the action under the provisions of the Jones Act.

The jury found for the plaintiff upon both causes of action, awarded $3750 as damages on the first cause of action, and $440 on the second cause of action.

Applicants primarily contend that the "law side of the District Court of the United States" had no jurisdiction to hear and determine either cause of action alleged in the complaint.

We think that appellants misconceive the scope of the Jones Act whereby without any interference with the seaman's rights in admiralty new and enlarged rules for the recovery of compensatory damages for personal injuries may be invoked by a seaman for the tortious acts of his employer in the course of the employment. Cortes, Adm'r, v. Baltimore Insular Line, Inc., 287 U.S. 367, 53 S.Ct. 173, 77 L.Ed. 368; De Zon v. American President Lines, Ltd., 318 U.S. 660, 63 S.Ct. 814.

In actions where the averments of the seaman include the essential factual requirements specified in section 688, 46 U.S. C.A., no allegation or proof of diverse citizenship is necessary to confer jurisdiction on the District Court.

The Jones Act is a remedial statute and as such it should be liberally construed to accomplish the declared object of the legislation, "to provide for the promotion and maintenance of the American merchant marine." This desideratum must be attained in consonance with the plain meaning of the wording of the statute.

The sole jurisdictional provision incorporated in the Act is that "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." This requirement is a modification of that imposed by the Judiciary Act, 1 Stat. 76, 77, relating to other suits of a civil nature at common law, and when fulfilled confers on a District Court of the United States the requisite authority to hear and determine an action at law for damages by an injured seaman regardless of his citizenship.²

The appellee based and presented his entire action in the court below upon the Jones Act and in each cause of action he relied upon the same negligent acts of his employers. It was the seaman's right to recover in one action for all impairment due to his employers' negligence, including necessary medical expenses and loss of wages resultant from his employers' negligence. The method and procedure which the seaman adopted in the court below is not unlike the conventional action at law for damages for personal injury wherein the plaintiff pleads special damages separately from the compensation which is demanded and assessable for the disability, pain and suffering per se.

The complaint alleged and demanded general damages in the sum of $15,000, and the method adopted by the seaman of pleading the aggregate of additional special damages in a second cause of action at an amount not in excess of $3,000 in no manner impaired the jurisdiction of the District Court under the Jones Act to, as was done in the court below, hear and determine the whole case.³

Appellants next argue that the court below was without jurisdiction under the Jones Act for the reason that the master of the vessel was joined with the Van Camp Sea Food Co., Inc., the injured seaman's employer. We have earlier in this opinion referred to the allegations in the complaint that plaintiff was hired by defendants as radio operator-fisherman on the "Madeirense" and that defendants were the owners and operators of the "Madeirense."

The record before us discloses that appellee testified in the court below that the preliminary negotiations relating to his employment were carried on with the master of the vessel and so far as he knew the vessel was owned in part by the company and partly by the master and several crew members. The testimony of the master himself was to the effect that he had "an ownership share of $5,000 in the boat" and that "Van Camp also had a part." From this uncontradicted testimony and in the absence of evidence to the contrary it is clear that there was sufficient evidence from which the jury could properly have found and the implied finding in the verdict shows the jury did find that the master was a co-employer of appellee at the time of the injury.

Numerous assignments of error on the part of the district judge upon the admissibility of evidence have been made by the appellants. Particular objections were made to the introduction of a wireless message addressed to the master of the "Madeirense" by the United States Marine Hospital at San Francisco, California, and various statements by a doctor at San Cristobal Island and by a pharmacist's mate from a United States destroyer.

Immediately after suffering the fracture appellee reported the injury to the master, who "tried to manipulate it one way and another by yanking it in order to pull it in place." There were no medical facilities aboard the vessel other than minor first-aid supplies, and suffering considerable pain, appellee several hours after the injury radioed the United States Marine Hospital at San Francisco, California, a description of the injury and requested advice. The hospital soon after radioed the...