Georgia Casualty Co. v. American Milling Co.

The following opinion was filed April 29, 1919: Winslow, C. J. The defendant’s chief contention in the case is that the trial court had no jurisdiction for the reason that the cause of action is maritime in its nature and within the sole jurisdiction of the admiralty courts of the United States. Two lesser contentions are made, however, which will be first briefly considered. It is said that the rope tender and Emerson were, as matter of law, fellow-servants, and hence that there can be no recovery because the negligence found (i. e. the pulling of the rope by the rope tender at the wrong time) was the negligence of a fellow-servant.' The contention must fail. Emerson and the rope tender were employed and paid by different masters. True, both masters were engaged in the same enterprise, namely, the unloading of the vessel, but this is not sufficient: there must be identity of control; here, the servants of neither master were under control of the other, and this is the ultimate test. 26 Cyc. 1284; 18 Ruling Case Law, p. 762, § 226; Phillips v. C., M. & St. P. R. Co. [460] 64 Wis. 475, 25 N. W. 544; Hoveland v. Nat. B. Works, 134 Wis. 342, 114 N. W. 795; Johnson v. E. C. Clark M. Co. 173 Mich. 277, 139 N. W. 30; Wagner v. Boston E. R. Co. 188 Mass. 437, 74 N. E. 919; Standard Oil Co. v. Anderson, 212 U. S. 215, 29 Sup. Ct. 252. In his charge to the jury the trial judge applied the doctrine of res ipsa loquitur and told the jury in substance that where both the apparatus and its operation are in the control of the defendant and an accident happens which could not ordinarily happen except by reason of defective apparatus or negligent operation, the fact of the accident might be sufficient of itself to justify a finding of defect in the apparatus or negligence in its operation. We see no error here. It is undisputed that the defendant had control of the apparatus and its operation, and it is also undisputed that the apparatus worked abnormally and operated when it should not operate, thereby causing Emerson’s injury. Nothing more is needed to make the rule applicable to the case. Cummings v. Nat. F. Co. 60 Wis. 602, 18 N. W. 742, 20 N. W. 665; Klitzke v. Webb, 120 Wis. 254, 97 N. W. 901. Under the undisputed evidence we are unable to see how the jury could reach any other conclusion except that the rope tender negligently pulled the rope when it should not have been pulled. We pass now to the question of jurisdiction. No attempt will be here made to review the decisions of the federal courts on the general subject of the jurisdiction of the district courts of the United States over torts occurring on shipboard. The harmony between them is certainly not complete and no good purpose would be subserved by lengthy discussion. A learned and very complete note collecting the authorities is to be found appended to the case of Cleveland T. & V. R. Co. v. Cleveland S. Co. (208 U. S. 316, 28 Sup. Ct. 414) 13 Am. & Eng. Ann. Cas. 1215. The principles which govern the present case are not numerous nor do we think they are seriously in doubt. Admiralty jurisdiction is vested exclusively in the United [461] States district courts, “saving to suitors, in all cases, the right of a common-law remedy where the common law is competent to give it.” Judiciary Act of 1789, sec. 9; U. S. Judicial Code, sec. 24, sub. 3, and sec. 256. The work of a stevedore in loading or unloading a ship lying at the wharf is maritime service and actionable injuries received during such work are so far maritime injuries that recovery may be had for them in the admiralty courts by libel in personam against the stevedore company which employs him. Atlantic T. Co. v. Imbrovek, 234 U. S. 52, 34 Sup. Ct. 743. Workmen’s compensation laws provide remedies wholly unknown to the common law, which are incapable of enforcement by the ordinary processes of any court and are not saved to suitors by the saving clause of the judiciary act above cited. Southern Pac. Co. v. Jensen, 244 U. S. 205, 37 Sup. Ct. 524. The common-law jurisdiction of the state courts over torts committed at sea is preserved by the clause cited, but remedies by proceedings in rem can only be administered in the admiralty courts. Steamboat Co. v. Chase, 16 Wall. 522; Sherlock v. Alling, 3 Otto (93 U. S.) 99; The Hamilton, 207 U. S. 398, 404, 28 Sup. Ct. 83; McDonald v. Mallory, 77 N. Y. 546; Thompson v. Hermann, 47 Wis. 602, 3 N. W. 579. If no remedy is sought against the vessel itself, the case.is not within the exclusive jurisdiction of the federal courts, but the state courts, administering common-law remedies, have concurrent jurisdiction. 1 Cyc. p. 811, sub. 2; 1 Corp. Jur. p. 1253, § 24. Full consequential damages may be recovered in such an action according to the statute or common law of the state which has jurisdiction. Steamboat Co. v. Chase, supra; Standard Oil Co. v. Anderson, 212 U. S. 215, 29 Sup. Ct. 252. The case last cited is closely analogous in its facts to the case before us and seems well nigh conclusive on the questions involved. Even though the action be [462] brought in the maritime court, it seems that full damages may be recovered in such a case as the one before us. Imbrovek v. Hamburg—Am. S. P. Co. 190 Fed. 229. In case of injury to a seaman on the high seas the measure of recovery is limited to wages, maintenance, and cure (Chelentis v. Luckenbach S. Co. 245 U. S. 655, 38 Sup. Ct. 501); but this is an ancient rule of maritime law applying only to seamen on a voyage. The Osceola, 189 U. S. 158, 23 Sup. Ct. 483. We find no prejudicial errors in the record. By the Court. — Judgment affirmed. A motion for a rehearing was denied, with $25 costs, on June 25, 1919.