SWAYNE & HOYT, Inc., v. BARSCH, 226 F. 581

GILBERT, Circuit Judge. The parties herein will be designated’ plaintiff and defendant, as in the court below. The plaintiff recovered a judgment against the defendant, a corporation, for damages on account of personal injuries sustained by him while working on a dock in discharging the cargo of the steamer Camino, at Portland, Or. One of the assignments of error is that the court denied the defendant’s request to instruct the jury to return a verdict for the defendant on the ground that, by the uncontradicted evidence in the case, the defendant was the managing agent only of the steamship.

The assignment raises the question whether there was evidence to go to the juiy to show that the defendant, rather than the owner, was individually responsible as the employer of the plaintiff. The defendant was a corporation of the state of California, doing business there, and at Portland through its local agent Kennedy.

Kennedy testified that' it was his duty to act for the defendant in the capacity of agent in directing the movement of ships that were being run into the port of Portland, to pay all bills for the ships, including the bills of men who helped to load and unload the same; that the plaintiff was on the defendant’s pay roll, and was working for the defendant; that he (Kennedy) accounted to the defendant for the money paid out to the men; that it was the defendant's money that he was paying out to the men for unloading the ship; that he did not report the accident to plaintiff to the owner, but to the defendant; that the defendant was the managing agent of the Camino, with power to direct the movements and the operations of the officers and crew, and that it employed the officers of the ship.

There was evidenc.e, also, that when the plaintiff made his claim for damages, Kennedy sent him to the defendant at San Francisco, and that he there had negotiations with the defendant with a view to a settlement, and that the officers of the defendant did not disclaim their responsibility, or deny that the plaintiff had been working for the defendant, and the plaintiff testified that they acknowledged that the Camino was operated by them. Kennedy testified that, at the instance of the defendant, he took the plaintiff to a doctor after his return from San Francisco.

It is not disputed that on the bow of the Camino were painted the words, “Swayne & Hoyt, Managers.” The defendant, while admitting the general rule that if an agent would avoid liability on a contract which he enters into in his capacity as agent, he must disclose the identity of his principal contends that its principal was sufficiently disclosed by the words at the head of tire pay roll, on which the plaintiff acknowledged receipt of money “from Captain-for account of above steamer and her owners.” But there was evidence that the plaintiff s'igned the pay roll without reading the printed form thereof; and, even if he had read it, it was not conclusive proof to him that the defendant itself was not the owner as well as the manager.

Nor was the plaintiff put upon inquiry by those words'in the pay roll. “Knowledge by the third person of facts and circumstances which would, if reasonably followed by inquiry, have disclosed the identity of the principal does not operate to relieve the agent from personal liability, but the third person must have actual knowledge of the principal’s- identity.” 31 Cyc. 1558, note, and cases there cited. In Ye Seng Co. v. Corbitt (D.

C.) 9 Fed. 423, Judge Deady held that the signature of the agents, “Corbitt & Macleay, Agent for Owners of the American Bark Garibaldi, of Portland, Oregon,” was not sufficient to disclose the name of the principal. See, also, Farrell v. Campbell, 3 Ben. 8, Fed. Cas. No. 4,681.

In this connection the defendant advances the contention that what was done on board the Camino must have been done by authority of the owners represented by the master, and that the plaintiff, who> was employed by Kennedy for the defendant, was serving a different employer, and it invokes the rule that when two masters are engaged in a common undertaking, tin'.' is siot liable to liis servant for an injury occasioned by the servant of the oilier.

There is in the record no exception or assignment of error which raises the contention so made, but it is a sufficient answer to it to say that there was evidence that the defendant had full charge of the operation of discharging the ship. It was the manager of the ship, with its corporate name' painted thereon as manager, and the jury ii ay have found that the defendant, by its own authority, bad placed in charge oí the whole operation the mate, who was shown to have been the superintendent in charge.

In view of’all the evidence wc :hiuk that the question of the defendant’s liability was properly left to the jury. Jt is contended that the trial court erred in applying as the law of lire case the employers’ liability law of Oregon.

But no exception war, taken to the charge of the court that under the statute of the state of Oregon, all machinery other than that operated by hand power, whenever necessary for the safety of persons employed in and about the same, or for the safety of the general public, shall be provided wiih a. system of communication by means of signals, or to the instruction which followed that, if the jury found that the injury to the plaintiff was caused by the failure of the defendant to' comply with the provisions of that statute, that failure would be negligence within the meaning of the law, and would entitle the plaintiff to recover.

But it is said that in effect an exception was reserved to that portion of the charge by the exception which was saved to the refusal of the court to instruct, as requested by defendant, that the foreman and the engineer operating the winch were fellow servants of the plaintiff, and that for negligence of the foreman the plaintiff could not recover in the action. The ground of the exception was that the employers’ liability law of the state of Oregon had no application to the loading or unloading of vessels coming in and out of the city of Portland, and engaged in interstate commerce.

It is too dear to require discussion that the exception called in question only that portion of the state employers’ liability law which provided that the negligence of the superintendent, manager, foreman, or other person in charge or control of the. work shall not he a defense to such an action. The sole question, therefore, presented to this court on the assignment is whether it was error to refuse the requested instruction.

The refusal of that instruction was not error, for two reasons: First, upon ¡he evidence, and inespective of the Oregon statute, the court would nor have been justified in charging the jury that the foreman referred to in the requested instruction was, as a matter of law, a fellow' servant with the plaintiff. The foreman was Ahlin, the mate of ihe vessel, and he was in full charge of the operation of unloading the same, in the progress of which the plaintiff was injured.

There was a dock boss named Dosch, who had direction of the movements of the men on the dock, but the “general superintendent over all,” as the plaintiff testified, was the mate, and all who were engaged in the opera lion took their orders from him. As the defendant was a corporation of California, and was engaged in a work of discharging the ship at a dock in Oregon, it was necessarily represented at that place by some officer, and that officer evidently was the mate. There was ijo testimony to the contrary, although one of the witnesses testified that the general superintendent over all was “the mate and Mr.

Kennedy.” Kennedy was the local agent of the defendant corporation at Portland, and kept the pay roll. Dosch, the dock foreman, engaged the men from the secretary of the Longshoremen. It does not appear from the testimony who had the power to discharge the men, but it should be assumed, that the mate had that power, from the fact that he was the general superintendent over all who were engaged in the work, and it may be assumed that he was made superintendent by the defendant,-for it was the manager of the ship.

Second, it was not error to refuse the requested instruction, for the reason that'General Laws of Oregon 1911, p. 16, provide that negligence of a fellow servant shall not be a defense to an action brought to recover for injuries suffered by an employé in the case of tire neglect of any person engaged as superintendent, manager, foreman, or other person in charge or control of the works, plant, machinery, or appliances.

The plaintiff was employed in the state of Oregon, not by the ship or by her owners, but by a corporation locally operating there, to engage in a work in that state, and in his common-law action to recover damages for injuries sustained in that work, he is entitled to the protection of that provision of the state statute. We find no merit in the contention that because the Camino was engaged in interstate commerce that statute was inapplicable. There can be no- question that, until Congress enacted a law regulating the same subject-matter, the state had the power to enact and enforce its own statute.

The decision in South Covington Ry. v. Covington, 235 U. S. 537, 35 Sup. Ct. 158, 59 L. Ed. 350, cited by the defendant, is not authority to the contrary. The statute of Oregon which deprives an employer of his defense on the ground that the negligence was that of a foreman is not a regulation of, and does not impose a burden on, interstate commerce.

It is a law affecting liability for injuries through negligence in actions arising within tire jurisdiction of the state, which it was clearly within the power of the state to enact as to all persons who are engaged in business in the state, whether their business is connected with interstate commerce or not. ■ We may assume, although it is not very clearly shown, that the Camino was in the coasting trade between San Francisco and Portland, and was engaged in interstate commerce: The defendant, .a corporation engaged in unloading the vessel, was subject to the state law, just as railroads engaged in interstate commerce ate, in the absence of a federal statute regulating the same matter, subject to the local law.

Such a law becomes the rule of decision in the federal courts under the provisions of

section 721, Rev. St. (Comp. St. 1913, § 1538). It was uniformly recognized by those courts prior to Act Cong. April 22, 1908, c. 149, 35 Stat. 65 (Comp. St. 1913, §§ 8657-8665) which abrogated the fellow-servant rule as to the liability of interstate common carriers by railroad to their employes, that state statutes, abrogating the fellow-servant rule with respect to railroad companies which did business in the state, were applicable to railroad companies engagcxl in interstate commerce in the state. Texas & Pacific R. R. Co. v. Carlin, 189 U. S. 354, 23 Sup. Ct. 585, 47 L. Ed. 849.

The constitutionality of such a state statute was affirmed in Missouri Railway Co. v. Mackey, 127 U. S. 205, 8 Sup. Ct. 1161, 32 L. Ed. 107, Louisville & Nashville R. R. Co. v. Melton, 218 U. S. 36, 30 Sup. Ct. 676, 54 L. Ed. 921, 47 L. R. A. (N. S.) 84, and Mobile J. & K. C. R. R. v. Turnipseed, 219 U. S. 35, 31 Sup. Ct. 136, 55 L. Ed. 78, 32 L. R. A. (N. S.) 226, Ann. Cas. 1912A, 463. And even if 11re provision of the Oregon act which requires the use of a signal system were called in question in this case, which it is not, it would clearly he within the exceptions recognized in South Covington Ry. v.

Covington, wherein it was held that a state may, in the exercise of its police power, in the interest of public health and safety, and in the absence of legislation by Congress, enact regulations which incidentally or indirectly affect interstate commerce. Thus the court in that case admitted the authority of the city of Covington to forbid a railroad company to permit any passenger to ride upon the rear platform of a car unless the same were provided with a suitable rail or barrier, and in Atlantic Coast Line v. Georgia, 234 U. S. 280, 34 Sup. Ct. 829, 58 L.

Ed. 1312, the court said: ‘•Tn tlie absence of legislation by Congress, the states are not denied the exercise of their power to' secure safety in the physical operation of railroad trains within their territory, even though such trains are used in interstate commerce.” Iii that case the court affirmed the power of a state to require railroad companies to use on their locomotives electric headlights of specified form and power, to secure safety in the physical operation of railroad trains in, or passing through, the state. Similar decisions are LXeiuiington v. Georgia, 163 U. S. 299, 16 Sup. Ct. 1086, 41 L.

Ed. 166, affirming the power of a state Legislature to forbid the running of freight trains on any railroad in the state on Sunday, New York, N. H. & H. Railroad v. New York, 165 U. S. 628, 17 Sup. Ct. 418, 41 E. Ed. 853, recognizing the power of a state to forbid any sccam railroad doing business in the state to heat its passenger cars on ether than mixed trains, by any stove or furnace kept inside of the car, and Chicago, R. I. & Pac. Ry. Co. v. Arkansas, 219 U. S. 453, 31 Sup. Ct. 275, 55 E.

Ed. 290, declaring valid a state statute which prescribed a certain number, not unreasonable, for the crews of freight trains on all railroads in the state whose lines were more than 50 miles 311 lergih, and holding that such a statute was not a burden on inter-stale commerce.

It is certainly in line with these authorities to hold that the state of Oregon may, in the exercise of its police power, whenever necessary for the safety of persons employed in and about machinery, make the humane and reasonable requirement that there shall be a system of communication by means of signals for the protection of the lives and limbs of its citizens and the people within its jurisdiction.

The defendant contends that the Employers’ Liability Act of Oregon is not applicable, for the further reason that the stevedore’s employment is a maritime contract, and is controlled by the maritime law, that maritime law is to be applied in determining all the obligations arising from the contract, and that a state Legislature' cannot enlarge such obligations or change the maritime law. The action in the case at bar was not brought in admiralty. The paper which the plaintiff filed was not a libel in personam, but a complaint in an action at law, and as an action at law the case was tried before a jury.

The decision in Atlantic Transport Co. v. Imbrovek, 234 U. S. 52, 34 Sup. Ct. 733, 58 L. Ed. 1208, 51 L. R. A. (N. S.) 1157, cited by the defendant, is not authority for the proposition that there would have been jurisdiction in admiralty. What was decided in that case was that admiralty had jurisdiction of a suit in personam to recover for injuries sustained by an employé who is engaged in loading a vessel at a dock in navigable waters, the employé having been injured while at work on the vessel.

The court reaffirmed the general principle “that the test of admiralty jurisdiction in tort in this country is locality.” The opinion cites and leaves undisturbed a long line of decisions made both before and since the decision in The Plymouth, 3 Wall. 20, 18 L. Ed. 125, that where the tort is committed, not on the vessel, but on the shore or on a dock, or where it is committed partly on land and partly on water, the question whether admiralty has jurisdiction over it is determined by the place of the damage, and not by the place of the- origin of. the tort.

Some of the cases cited are included in the following: The Mary Stewart (D. C.) 10 Fed. 137; The Ottawa, 1 Brown’s Adm. 356, Fed. Cas. No. 10,616; The Mary Garrett (D. C.) 63 Fed. 1009; The Maud Webster, 8 Ben. 547, Fed. Cas. No. 9,302; Bain v. Sandusky Transportation Co. (D. C.) 60 Fed. 912; The Albion (D. C.) 123 Fed. 189; The Bee (D. C.) 216 Fed. 709; The H. S. Pickands (D. C.) 42 Fed. 239; Hermann v. Port Blakely Mill Co. (D. C.) 69 Fed. 646; Cleveland Terminal R. R. v. Steamship Co., 208 U. S. 316, 28 Sup. Ct. 414, 52 L. Ed. 508, 13 Ann. Cas. 1215; Martin v. West, 222 U. S. 191, 32 Sup. Ct. 42, 56 L.

Ed. 159, 36 L. R. A. (N. S.) 592. Among the cases cited with approval is The H. S. Pickands (D. C.) 42 Fed. 239. In that case the libelant was engaged in making repairs on the ship. In attempting to go on shore to procure other material, he mounted a ladder which, being unfastened at the base, slipped, throwing him down upon the wharf, by reason of which he was severely injured. Said Judge Brown in deciding the case: “I am clear in my opinion that a court of admiralty has no jurisdiction of this case. It has never been doubted since the case of The Plymouth, 3 Wall. 20 [18 L.

Ed. 125], that, to enable us to take cognizance of a maritime tort, the injury must have been consummated, and the damage received, upon the water. The mere fact that the wrongful act was done upon a ship is insufficient.” In The Plymouth it was said: “The wrong and injury complained -of must have been committed wholly upon the high seas or navigable waters, or, at least, the substance and consummation of the same must have taken place upon these waters to be within the admiralty jurisdiction.

In other words, the cause of damage, in technical language, whatever else attended it, must have there been complete.” The difference between Atlantic Transport Co. v. Imbrovek and the present case is the difference between land and sea. Imbrovek was iujured while working on the ship. Barsch, the plaintiff here, was injured while working on the dock. The cases specially relied upon to sustain the contention that the case at bar is ruled by the maritime law are The Henry B. Smith (D. C.) 195 Red. 312, and Schuede v. Zenith S. S. Co. (D. C.) 216 Red. rod. In The Henry B.

Smith, which was a suit in rem in the admiralty to recover for personal injuries, the court went no further than to affirm the general rule that the maritime law of the United Stales subsists as an entirety, of which federal courts have exclusive jurisdiction, and that it must he administered by them unaffected by mare legislation. That rule, it may be observed, is well settled. But it is equally well settled that in the absence of a remedy by maritime law, a state statute may furnish a remedy for death which occurs from tor.; on navigable waters, which remedy may be enforced in a pro-veedme in admiralty. Mr.

Justice Holmes, in The Hamilton, 207 U. S. 398, 404, 28 Sup. Ct. 133, 134 (52 L. Ed. 264) said: “The same argument that deduces the legislative power of Congress from the jurisdiction of the national courts tends to establish the legislative power of tiie state where Congress has not acted. Accordingly it lias been held that a s1 atufo, giving damages for death caused by a tort, might be enforced in a state court, although the tort was committed at sea.” In that case the court cited The City of Norwalk (D.

C.) 55 Fed. 98, in which Judge Brown held that while that which is peculiar to the maritime law, or that which by its interstate or international relations would be incompatible with diverse state legislation and can be cl Ringed by Congress alone, state legislation is not excluded upon maritime subjects of a local nature, nor legislation under the police power for the preservation of life or health, not incompatible with interstate or international interests, in the absence of legislation by Congress. In McDonnell v. Ocean Steam Navigation Co., 143 Fed. 480, 74 C. C.

A. 500, the Circuit Court, of Appeals for the Second Circuit recognized as applicable the Employers’ liability Act of New York (Consol. Daws, c. 31), making a master responsible for the negligence of liis superintendent, or foreman, in a case iri which the plaintiff’s intestafe, a longshoreman, was killed by falling through a hatch on the defendant’s steamship. And in Trauffler v. Detroit & Cleveland Navigation Co. (D.

C.) 181 Fed. 256, in a similar action, brought, however, in admiralty, it was held that reference must be had to the employers’ liability law of New York in. determining the question of the liability of the master for the death of his servant, who had been killed in a collision. In Schuede v. Zenith S. S. Co., the plaintiff had brought au action in a state court to recover damages for injuries which he sustained as a wheelsman upon a vessel “in waters within the jurisdiction of maritime law.” The cause was removed to the federal court on the ground o f, diversity of citizenship.

The action might have been brought in the admiralty, but the plaintiff elected to bring it as a common-law action, on account of the advantages accruing to him under the Ohio Employers’ Liability Act (Gen. Code, § 6244 et scq.), claiming the right to do so under

section 24 and subdivision 3 of

section 256 of the judicial Code of the United States (Act March 3, 1911, c. 231, 36 Stat. 1091, 1160 [Comp.

St. 1913, §§ 991, 1233]), which provides for a saving to suitors against the exclusive jurisdiction of admiralty "in all cases the right of a common-law remedy when the common law is competent to give it.” The court held that the provisions of the law maritime as to the relation of a seaman to his employer are part of, the substance and obligations thereof, which cannot be modified by state law, and that in the case of an injury tó a seaman in the course of his employment the maritime law determines his rights in an action to recover therefor, whether his suit be brought in a state or in a federal court.

But in that case the-plaintiff hád the unquestioned right to resort to admiralty, and the conclusion of the court was based upon that fact. That this was in the mind, of the court is shown by the reference made in the opinion to the case of Steamship Co. v. Chace, 16 Wall. 530, 21 L.

Ed. 369,. in which the court said: “Where no remedy exists for an injury in tile admiralty courts tlie fact that such courts exist and exercise jurisdiction in other causes of action leaves the state courts as free to exercise jurisdiction in respect to an injury not cognizable in the admiralty as if the admiralty courts were unknown to the Con-.-stitution, and had no existence in our jurisprudence.” In the present case there could have been no jurisdiction in admiralty for the reason that the plaintiff was injured while working on a dock.

The rule, declared in The Plymouth, supra, has ever since been, followed that jurisdiction of torts in, admiralty depends upon locality;, that where the cause of action is completed on navigable waters, admiralty has jurisdiction, but where it is completed on land, the remedy belongs, to the courts of common law. We cannot assent to the-proposition that the employers’ liability law of Oregon is rendered inapplicable by the fact that the contract whereby the plaintiff was employed by the defendant was a maritime contract. The plaintiff' is not suing upon the cpntract.

He is suing upon the breach of, the-implied obligation of his employer to use due care. The argument of defendant involves the untenable proposition that while the plaintiff could not have brought a suit in admiralty, and his only remedy was a common-law action, the court which entertained jurisdiction of the common-law action was nevertheless required to apply thereto the-maritime law, and to try the cáse as if it were sitting as a court of admiralty, all for the reason that the contract under which the plaintiff was rendering.services to the defendant at the time of the injury was a maritime contract.

The remarks of, Mr. Justice Blatchford in Johnson v. Chicago, etc., Elevator Co., 119 U. S. 388, 397, 7 Sup. Ct. 254, 258 (30 L. Ed. 447), ‘ express, we think, the law which is applicable to the case at bar. He-said: “Under the decisions of this court in The Plymouth, 3 Wall. 20 [18 L. Ed. 125], and in Ex parte Phenix Ins. Co., 118 U. S. 610 [7 Sup. Ct. 25, 30 L.

Ed. 274], at the present term, it must be held that the cause of action in this-case was not a maritime tort of which a District Court of the United States,, as a court of admiralty, would have jurisdiction, and that the remedy belonged wholly to a court of common law; the substance and consummation, of the wrong having taken place on land, and not on navigable water, and the cause of action not having been complete on such water.

This being so,. no reason exists why the remedy for the wrong should not he pursued In the slate court, according to the statutory method prescribed by the law of the state, even though that law gives a lien on the vessel.” In Steamship Co. v.

Chace, supra, it was said: “¡átate statutes, if applicable to the case, constitute the rules of decision in common-law actions, in the Circuit Courts as well as in the state courts, but the rules of pleading, practice, and of evidence in the admiralty courts are regulated by the admiralty law as ultimately expounded by the decisions of this court.” State courts in actions similar to that which is here under consideration have not doubted the applicability of local statutes which affect the relation between master.and servant. Ward v. T. Hogan & Sons, 159 App. Div. 490, 144 N. Y. Supp. 514; Worley v.

Spreckels Bros. Commercial Co., 163 Cal. 60, 124 Pac. 697. We think it clear that if admiralty could have had no jurisdiction of this cause of action, maritime law has no control over its determination. The ground of jurisdiction in the court below was diversity of citizenship. The citizenship of the defendant is properly alleged in the complaint, but the plaintiff neglected to allege his own citizenship.

Under the act of Congress approved March 3, 1915, 38 Stat. 956, c. 90, which permits an amendment in the appellate court in such a case so as to show on the record diverse citizenship and jurisdiction, the plaintiff will be permitted to file, within 10 days, such an amendment; and, inasmuch as the question of the defect in the pleadings has not been raised by the parties, this order is made without costs to the plaintiff. Upon the filing of that amendment, the judgment is affirmed.