Willey v. ALASKA PACKERS'ASS'N.

• Decision Date: 14 March 1927
• Docket Number: No. 4940.,4940.
• Parties: WILLEY v. ALASKA PACKERS' ASS'N.
• Court: U.S. Court of Appeals — Ninth Circuit

18 F.2d 8 (1927)

WILLEY v. ALASKA PACKERS' ASS'N.

No. 4940.

Circuit Court of Appeals, Ninth Circuit.

March 14, 1927.

H. W. Hutton, of San Francisco, Cal., for appellant.

Chickering & Gregory and Donald M. Gregory, all of San Francisco, Cal., for appellee.

Before RUDKIN, Circuit Judge, and SAWTELLE and JAMES, District Judges.

SAWTELLE, District Judge.

Libelant alleges:

That he is the duly appointed executor of the last will and testament of I. C. Kleppe, deceased. That said Kleppe, at the time of his death, which occurred on April 10, 1924, in the city and county of San Francisco, Cal., was of the age of 35 years. That at all times mentioned in the complaint the respondent, Alaska Packers' Association, of California, was a corporation, having its office and principal place of business in said city and state, and was the owner and operator of a certain sailing ship, engaged in the merchant service of, and flying the flag of, the United States, called the Star of Finland.

That on the 3d day of April, 1922, said Kleppe was employed by the defendant, at San Francisco, to serve as mate on said vessel, Star of Finland, on a voyage from San Francisco, to a place called Alitak, in Alaska, and to return to San Francisco, and, while at Alitak to work as master of a small launch called the Goney, and in pursuance of said employment, said Kleppe signed shipping articles before the United States shipping commission for the port of San Francisco, Cal., and on the 4th day of April, 1922, went on board and into the service of the respondent under said contract of employment, on said Star of Finland. That said voyage terminated in San Francisco on or about the 29th day of September, 1922. That said Star of Finland arrived at Alitak on or about the 15th day of May, 1922, and there remained until about the 15th day of September, 1922, when she departed therefrom to San Francisco.

That between said dates of the arrival of said vessel at said Alitak and her departure therefrom Kleppe was engaged in canning salmon at Alitak, at a cannery situated in a bay, called Olga Bay, at which place there were no drug stores or doctors, or any means of access to drug stores or doctors, except by a voyage on some launch from Alitak; and that all launches at Alitak were owned and controlled by the defendant, and the use of none could be had without the permission of one Stindt, who was the agent in charge of the respondent's said business at Alitak during said year of 1922. That, upon the arrival of said Star of Finland at Alitak, said Kleppe took the position of master of the Goney, and continued as such master until about the 12th day of September, 1922, when he resumed his position on said Star of Finland, and returned to San Francisco.

That said Goney was used in carrying salmon from respondent's fish trap, about 25 miles distant, to its cannery. That said Kleppe was the engineer on said last-mentioned vessel. That on or about the 12th day of July, 1922, while said Kleppe was working on the Goney, he fell overboard into the water, getting wet, and thereby contracting a severe cold in his head. The weather being bad for the succeeding two or three days, he was subject to exposure, his cold became aggravated, and, growing worse, affected his throat and chest, finally developing into bronchitis, and later into tuberculosis, from which disease he died. That the said shipping articles provided that said Kleppe, "while engaged under this contract, shall receive medical and surgical attendance and medical and surgical necessities."

That, while said Kleppe was suffering from said cold at Alitak, defendant had no doctor in attendance there. That the nearest doctor was located at Larson Bay in Alaska, a distance of about 116 miles from said Alitak. That the only way to reach Larson Bay from Alitak was by going in a launch in the open sea, and that the trip required 19 hours. That the respondent never at any time furnished him with either medical or surgical attendance or medical or surgical necessities, by reason of which the said cold developed as aforesaid. That the death of said Kleppe was caused by the said negligence of the respondent.

Appellee admits the employment of Kleppe as alleged, but specifically denies in detail all of the other material allegations of the libel.

The case was submitted to the District Court upon the testimony taken in the superior court of the city and county of San Francisco, in the case of I. C. Kleppe v. Alaska Packers' Association, and upon the additional testimony of three witnesses examined before said District Court.

In the view which we have taken of the case, it will be necessary to consider but a single question, viz. the sufficiency of the evidence to sustain the libel.

The testimony is conflicting, but, after a careful consideration of the entire case, we find the preponderance of the evidence establishes the following facts:

On April 3, 1922, at San Francisco, Cal., I. C. Kleppe, appellant's testator, entered into a contract with appellee, the Alaska Packers' Association, by the terms of which Kleppe was to serve as mate on appellee's vessel, Star of Finland, on a voyage to appellee's salmon cannery at Alitak, Alaska, and, while in Alaska, to act as master of the Goney, another one of appellee's vessels.

The shipping articles and contract provide: "All parties of the second part while engaged under this contract shall receive medical and surgical attendance and medical and surgical necessities."

The Star of Finland left San Francisco April 15, 1922, and arrived at Alitak, Alaska, on or about the 15th day of May, 1922. Kleppe, upon his arrival at Alitak,...