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District Court of Appeal, First District, Division 2, California.


Civ. 13800.

Decided: March 29, 1949

Hoge, Pelton & Gunther, Leo V. Killion, John H. Black and Edward R. Kay, all of San Francisco, for appellant. Gladstein, Andersen, Resner & Sawyer, of San Francisco, for respondent.

Plaintiff sued for injuries incurred while employed as a pump man aboard a tanker operated by defendant. The complaint alleged “That plaintiff brings and maintains this action under the provisions of Section 33 of the Act of June 5, 1920, C. 250, 41 Stat. 1007, commonly known as the Jones Act” 46 U.S.C.A. § 688. The cause was tried to a jury in the superior court and resulted in a verdict for the plaintiff.

Plaintiff was a member of and under the direct supervision of the engineer's department. While the vessel was at sea and about twenty miles from the nearest port the chief engineer ordered plaintiff to remove a grease cup fitting which was chipped in use. Plaintiff endeavored to remove the fitting by the use of a hammer and drift. A blow of the hammer caused a chip of the metal to strike him in the eye causing the injury in suit.

The accident occurred when the ship was about twenty miles out of Estero Bay. He was given first aid treatment by the mate and, when the ship docked about an hour later he was sent ashore and taken by automobile to a doctor in San Luis Obispo who treated and bandaged the eye.

Plaintiff returned to the ship and was landed at El Segundo from where he was taken to the United States Public Health Station at San Pedro by the ship's officers and then sent by train to a hospital in Pasadena.

On the case so made plaintiff specified, as acts of negligence, (1) the failure to provide goggles; (2) the order that he strike the fitting with a hammer; (3) the failure to provide a “seaworthy” ship; and (4) the failure to provide proper medical care. There is also a suggestion of negligence in the failure to have had the repairs made in a ship yard.

The evidence offered by defendant relating to medical treatment shows that everything was done for him that could have been done under the circumstances. The evidence offered by plaintiff shows that some of the delays in getting him to the hospital and earlier treatment were unreasonable and added to his suffering. With this conflict the jury could have found either way and we cannot say that a finding of lack of proper care would be unsupported.

Likewise the only evidence offered on the subject showed that it was not necessary or customary to put the vessel in a ship yard for a minor repair such as we have here. These claims of negligence can therefore be dismissed without further comment.

Specifications numbered (1) and (2) may be considered together as they both relate to the same type of claim of negligence.

On the matter of the asserted claim that appellant failed to provide goggles for respondent's protection there is ample evidence that the engineer's department in which respondent worked had on hand available to respondent six or more pairs of goggles, any one of which could have been used by him. If the contention is that appellant should have demanded that respondent wear goggles while doing the work it is unmistakable that no such demand was made. If the question of negligence in this respect depends on the duty of appellant to provide goggles, it is equally clear that the evidence showed that goggles were provided and made available to him if he had desired to use them, also that he did not make inquiries to his superiors, or look for them where he should have known they could be found. In this connection appellant contends that respondent was an experienced mechanic, knew the danger of the operation, knew that goggles could be had, and voluntarily elected not to use them. The evidence supports these contentions.

The argument of respondent based on the premise that he was ordered to strike the fitting with a hammer is faulty because the evidence does not establish the premise. The evidence is undisputed that respondent was not directed to use a hammer, that a Stillson pipe wrench was available for him to use, that a Stillson was a safe and proper tool for the purpose, and that, following the accident, another witness used a Stillson and removed the fitting “without difficulty.” When asked the direct question respondent testified, “Yes, there were Stillson wrenches available.” Some evidence was offered that another tool known as an “easy out” was better for this particular work. It was shown that this tanker was not equipped with an “easy out”, that it was a tool not generally found on vessels. But there was substantial evidence that it was no better than a Stillson wrench.

But assuming that the evidence on these issues may have been sufficient to support an inference of negligence the instructions on the subject must be examined the more critically to determine whether appellant was prejudiced by those complained of. On both instances the question of negligence or no negligence really rests on the well known “common, or simple, tools” doctrine. This means that ordinarily the master is not liable in negligence where a servant is injured in the use of a simple tool which is without patent defect if the servant has complete knowledge of and experience in the use of such tool. Newbern v. Great Atlantic & Pacific Tea Co., 4 Cir., 68 F.2d 523, 91 A.L.R. 781, Note 786; 35 Am.Jur. p. 573; 56 C.J.S., Master and Servant, § 216, p. 925 and cases there cited. Ordinarily the question of the application of this rule arises in relation to its effect under statutes denying the defense of assumption of risk. If that were the only issue here we would have no reason to discuss it further. But it has a distinct bearing on the criticism of the instructions given.

At the request of respondent the jury was instructed:

“If you find from the evidence that the accident was not one which would ordinarily have happened if those having management of the ship and its equipment had used reasonable care, then carelessness and the negligence of the defendant, if any, may be inferred by you and a verdict in favor of the plaintiff may be predicated thereon.” The instruction was error for two reasons—it was an incorrect statement of the res ipsa loquitur doctrine, and the doctrine had no application under the facts of the case. There is no authority for the statement that negligence may be inferred from the simple fact that the accident was one which would not ordinarily have happened if the master had used reasonable care. This doctrine applies only where the “thing” causing the accident is under the exclusive control of the master and the accident is not explained. In omitting this element of control the instruction took the core out of the doctrine. Dryden v. Western Pac. R. Co., 1 Cal.App.2d 49, 54, 36 P.2d 394; 16 Cal.Jur. pp. 1042 et seq.; 38 Am.Jur. p. 996.

But if the instruction had included this essential element of control it would have been error to give it under the facts of this case. The undisputed evidence is that the employee alone exercised control over the operations, that he was given the choice of proper and safe tools, and chose badly. The case is on a par with Dryden v. Western Pac. R.R. Co., supra; White v. Spreckles, 10 Cal.App. 287, 293, 101 P. 920; Gerhart v. Southern Cal. Gas Co., 56 Cal.App.2d 425, 431, 132 P.2d 874; Asprodites v. Standard Fruit & S.S. Co., 5 Cir., 108 F.2d 728.

The jury was instructed as follows: “A seaman such as the plaintiff does not assume the risk of working in any unsafe or improper place and he does not assume the negligence of any fellow employee. In other words, there are no defenses of assumption of risk or contributory negligence available to the defendant in this case under the Jones Act. The shipowner is under an absolute duty to keep the ship and its appliances seaworthy, safe and in proper condition.” (Emphasis ours.)

The error in this instruction is inherent from the nature of the cause of action. Respondent sued for damages under the Jones Act and so alleged in his complaint. The trial was conducted on that basis, and the court correctly instructed the jury that the action was prosecuted under that statute. The instruction complained of threw the case into one under the general maritime law for “unseaworthiness.” The distinction is this—a suit under the Jones Act is one for damages for negligence and lies in the law side of the court; an action for compensation, maintenance and cure under the maritime act is one originally in admiralty which permits recovery for injuries without negligence as is done under the common workmen's compensation acts. Here the respondent sued for damages for negligence specifying certain acts of negligence. He also alleged that the vessel was unseaworthy for the reasons specified as negligence, but the final paragraph of the complaint reads: “That plaintiff brings and maintains this action under the provisions of Section 33 of the Act of June 5, 1920, C. 250, 41 Stat. 1007, commonly known as the Jones Act.” It cannot be disputed that under the Jones Act the shipowner is not “under an absolute duty to keep the ship and its appliances seaworthy, safe and in proper condition.” He is obliged to use due and reasonable care to that end and to refrain from any act of negligence, but this is far from an “absolute duty” to keep the ship safe. The effect of the instruction was that the jury was told that it should treat the shipowner as an insurer and guarantor of the safety of all the employees and that no question of negligence of the owner need enter into their consideration. Later the court instructed the jury that the shipowner did not “guarantee or warrant” that the seaman “would not be injured” in the course of his employment, but that did not cure the error of the instruction complained of which put the “absolute duty” on the shipowner to keep the ship “safe.” A guarantee that the employee would not be injured is far different from a guarantee that the ship owner would pay “damages” for injury without negligence. The instruction could mean nothing else than that it was an absolute duty, uninfluenced by contributory negligence, assumption of risk, or the act of a fellow servant, to assure every seaman that he would be secure from injury, and that if any injury were suffered the ship owner would pay. This would be an acceptable theory under employer's liability, workmen's compensation, and similar acts where compensation, as distinguished from damages, irrespective of negligence is allowed, but it is not maintainable in an action for damages “for negligence” under the Jones Act. By imposing on the shipowner the “absolute duty” to keep the ship “safe” the jury was told that it could award damages for a breach of that duty.

Here the appellant was informed at the outset that it was called on to defend an action for negligence under the Jones Act. No intimation was made throughout the trial that respondent relied on his allegation of unseaworthiness. His defense of the instruction rests on the claim that the ship was unseaworthy because not equipped with proper tools or goggles. No other evidence of “unseaworthiness” was offered. Though the evidence failed to prove that the ship was not properly equipped the respondent now defends the verdict on the strength of this instruction. Manifestly though the ship may have been equipped with the best of tools and would thus have been “seaworthy” when it left port, it may nevertheless have become unsafe when such tools were improperly used or used by unskilled hands. The issue of “unseaworthiness” raises the question of inspection, patent and latent defects, custom and practice, and similar matters all of which are questions of fact and subjects of proof. Where the issue is not fairly tendered and no proof is made the jury should not have been charged in effect that it could find that the ship was unseaworthy and thus unsafe solely because the injury occurred.

Under Section 21 of Article XX of the Constitution, and Section 5300 of the Labor Code, our superior courts are without jurisdiction of an action for “compensation” irrespective of the fault of any party. This instruction in effect told the jury that it could render a verdict for “compensation” without fault and thereby created a cause of action which the superior court had no jurisdiction to try.

Assuming that we can follow our own Constitution relating to “prejudicial error” rather than the federal rule that prejudice is presumed from error, we still cannot say that the errors of these instructions were not prejudicial. The jury returned a verdict for $10,447. The verdict expressly stated that such sum was assessed as “damages.” Thus, through these instructions, the jury was permitted to award “damages” rather than “maintenance and cure”, without the necessity of finding negligence on the part of appellant.

Judgment reversed.

NOURSE, Presiding Justice.

GOODELL, and DOOLING, JJ., concur.

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