Brief in Opposition to issuance of Writ of Certiorari — Palmer v. Waterman Steamship Corp.

Supreme Court brief1959

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Supreme, Court of che United States

Ov TORER TERM, 1958

No. 710 . 4

oun €. Parvwer by Jras. M. Parmen, his guardfan ,

ad Vite m, Petitione f,

Vs;

Waren as: STEAMSHIL CORPORATION, «2 corporations -

he sesgal nt.

anemia NN 7 a

*BRIEF IN OPPOSE TION TO Isst ANCE OF WRIT OF

CERTIORARI TO. THE SUPREME COURT OF

‘THE STATE OF W ASHINGTON

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Pee ee °

; Y Francis d. Perkeat ir

Sale , B1O Sanisoine Street

uke Sin raneiseo 4. Calitornia

\ Dox vin S, Voor iipes

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Bee yo te peer Sa MA Bourth Avenue Building

j (Hee ge Ute Ro’ Senttle I . Washington

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THe ARGUS PREGS, BEATYT\LE

eee . Im the.

Supreme Court of che United States

OCTOBER TERM; 1968 ,

No. 710

Jou C. PALMER by Jean M. * PALMER, his guardian

whee ad litem, Petitioner,

vs.

WATERMAN STEAMSHIP CORPORATION, a corporation,

“Respondent.

: BRIEF IN OPPOSITION TO. ISSUANCE OF WRIT OF .

‘ CERTIORARI TO THE SUPREME COURT OF

' . THE STATE OF WASHINGTON |

FRANCIS As. Terreavcr

310 Sansome Street

San Francisco 4, ¢ ‘alifornia,

Donan » S. VOORHEES

1411 Fourth Avenue Buik ng

. Seattle 1, Washington

Attorneys for Res ent: .

ee a THe ARGUS Press, SEATTLE

~ — . - ————

a en " ————

‘

* Questions for Review........ RES WHEY. Son ree, Oe

Statement of the Case... Snsticsastlaaiebnanashiiadiiaieginpiilecnnnn

Argument EE ED SE Sa oe

I. There Is No Conflict Between the Decision of the

Supreme Court of the State of Washington and

’ the Decision of the Court of Appeals for any

RS SS NN eA a Ne SE

II. The Federal Question Upon Which Petitioner

Seeks Review Was Never: Reached in the Trial

_ Court or, if Reached, Was Waived Upon Appeal

to the Supreme Court of the State of Washington

. 1. The Federal Question wag not Reached by the

Trial Court's Refusing to Give Respondent's

Requested Instruction No. 17.0.0... ian

2. The Federal Question, if Reached by the Trial

- Court's Giving Instruction No. 11, Was Waived

Upoy Appeal tothe Supreme Court of the State

6 ORI Fiaseslenennp tecetninnnccistignetnnenseitthansancaacntnece

- IIL. This Case Was Dis of by the Supreme

*. Court of the State of Washington Upon Non-

Federal Ground Which Was Sufficient ipand of

Itself to Sustain the EE Oe -

€ ‘onelusion SES EL aA IGT Pi eae Ie

Appendix A—Petitioner’s Requested Instruction

ETAL et REST ie PO COD

Appendix B—Trial Court's Instriction No. 7 (in

EG SEES CEES, EAR TOO

Appendix C-—Trial Court's Instruction No. 12A+....

_ ‘Appendix D—Trial Court's -Instruction So, M4...

Appendix E—Rule 43 of the Rules of Appeal of -

Supreme Court of the State of Washingto# ....

Appendix F—Petitioner’s Assigument of Error No.

‘3 to the Supreme Court of the State of Washing-

GOD cccctnmncesnsnesecncisetnneienacanantbassnscstoseyscneadpicanendsenannansnses

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- TABLE OF CASES

; ae “_

Columbia Steel ( ‘ompany Uv. “State of Washington,” |

34 Wn.(2d) 700, 209 P. (2a) MED CIDER) . 5... secises-- oo

Ennis v. Ring, 49 Wn.(2d). 284, whi P. (2a). 473

ID ideas nik Ridissdaeececicsn Staak estnaccaaagaecihiapatiansad 16.

Erdmann us Henderson, 50 AV n. (2d) 296. 311 P.(2d) ™

NE Do corsitacicshcesscisichaeiactsaneheshcacseninibbetiaiiescanecdeneeeaiadiass 16

Fox Film Corporation v. “Muller, 296 U. S. 207, 80

=, a, SU CIN bac cssteccnssccsidiossthssxparsinayon 17

Kennett v. Yates, 45 Wn. (2d) 30, 979 P. (2d) 122

| IED stakes dh sactine ancstialibutibaca nadia ieadin’ niaeatatiaibbmaiadden 2}

Lynch v. People of the State of New York, 293 US.

eg Se Oe ER eso ereeneee 17

- McDonough v. Buckeye Steamship'Com pany (N.D.

Ohio 1951) 103 F.Supp. 473; (CA 6 1952) 200 F.

(2d) 538; cert. den. 345'°U.S. 926, 97 L. oe 1357;

73 Sup. Ct. 785 Rh cisicicisaneniecsibiceatevansist 6,9, 15,23

Miller v. Sisters of St. Francis, 5 Wn. (2d) ps 105

i Oe a ic eens 1

Peterson v. King County,.45 Wn. (2a) 860, 278 P.-

< Ce Fa A icv cheers ninticcnsencntadatinneteiacas 20

Robinson v. Northeastern Steamship Corporation

. (CA 2 1956) 228 F.(2d) 679; cert. den. 351 U.S.

937, 100 L.ed. 1468, 76 Sup. Ct. 834 (1956) ; pet. for

. rehearing dew. 352 U.S. 860, INL.ed. (2d) 70, 77

UE BR CR scerniccedeitesisciss: sasccschciaciseneedl 5,6,10,15 .

Sigurdson. v. City of Seattle, 48 Wn 1) 155, 992.

'P.( (2d) 214 i sco Gh SRY oP a suauas 20

‘ COURT. RULES | |

Ww ashington § Supreme Cc ‘ourt Riles on n Appeal, Rule

| ID sianacedactaehibbia ttlgilastants dokceciedasnacteantaaeiielasaae ae 15, » If, 20

“In the

Supreme Court of the United States

OcToBER TERM,-1958

Joun C, PaLwen by ‘Jean M, Pau MER, his

* guardian ad litem, ‘ Petitioner, J ©

es": ' No, 710

‘ M , a ;

WATERMAN STEAMSHIP CORPORATION, & ).

— ation, 3 Res chen

sctecsseaiiillasin-iciiasillialaty: cbcanaiaiiatinniianatoas-veatamibnaii

BRIEF IN OPPOSITION TO ISSUANCE OF WRIT OF

CERTIORARI TO THE SUPREME COURT OF

- THE STATE OF WASHINGTON \

To the Honorable, The re Const of the United

‘States:

COMES ‘Now respondetit’ and submits this brief in op-_

position to the issudnce of a writ of certiorari in this

cayise to the Supreme Court of the State of Washington.

QUESTIONS FOR REVIEW.

Petitioner has framed three questions as being the

‘nes which he seeks to have reviewed by this court. We

“respectfully suggest that. the ultiitte question upon

which he seeks review is the following:

1. If, at a time when he 1s u.!-duty, a member of: .

the crew of a vessel voluntarily undertakes to ren-

der assistance to an intoxicated shipmate, is the

negligence, if any, of: the one: rendering assistance

imputed as a matter of ata to his employ er, the

shipowner f

As ‘pointed out in Section II of the Argument of this,

brief, this federal 4fuestion, was never reached .in thg

state courts sv.as to make that question now reviewable

by this court. |

| STATEMENT OF THE CASE

(The abbreviation *St."’ will be used to refer to the

Statement of Facts and “Supp. St."’ will be used to.

réfer to the Supplemental Statement of Facts, which

_ have been certified to this court as a ae) ‘of the Supple-

mental Record.) -—

i eager r John C. Palmer, by his sinitaes ad 4 lite m,

an M. Palmer, sued his employer, respondent Water.

‘man Steamship Corporation, to recover damages in the

sum of $200,000.00 for injuries which he sustained on,

August 22, 1955, on board the SS Joun B, Water Kr

+. which was then alongside a dock in Seattle, Washington,

Palmer signed on the. JoHn B, WArrRMAN in San

Francisco, California, on August 11, 1955, just eleven

days before his injury. Between the time of ae |

the vessel and the day of his injury, Palmer war tice

observed on board the Jonx B. WATERMAN in a state of

intoxication (St. 139-143; 269-272). Upon one occasion

thé officer on watch i in the engine. room L lieved Palmer -

to be incapable of standing his watch as a fireman by

reason of intoxication and.ordered him to go into the

machine shop and ‘sleep it off’’ (St. 271-272).

' Palmer was on watch ir the engine room of the Jons .

_B, WaTerMAN from the time that the vessel arrived in

Seattle, Washington, at 2124 on August 21, 1955, until

shortly before midnight of that day {St. 267). Despite

the prohibitions of the Shipping Articles and the regu-

lations of the vessel against’ having or drinking intoxi-

eants aboard the. vessel (Supp. St.: Coleman Dep. 337-

‘ ‘ ©

¢ . . ‘

. 3 | P . .

40); 86-87; 89; P rick Dep, 10-11; 15-17), Palmer did

become intoxic atdd on board the Jonn B. WarerMan

between the timy that he came off watch and the time

that he was injyred at about 0305 on August 22, 1955.

A few minyfes before 0305 on August 22, 1955, Don-

ald Wood, the second assistant engineer, who was off-

: time, observed Palmer walking unsteadily

| the weather deck of the vessel and went ove? to him

(St. 346-349). Shortly thereafter Frank Koski, a inem-

ber of the crew who was returning from liberty on i ae

and who was likewise « y, overheard Wood and

Palmer and went over to give Palmer a hand in getting . \

back to his quarters (Sapp. Sts: Koski Dep. 8),

Wood and Koski then walked with Palmer back to

the house at the after end of the vessel. This af*er-house

contained an athwartship passageway leading to a mid-

ship stairway which in turn-led to the crew's quarters

below. At the entrance to the athwartship passageway

there was a coaming which was 1514 inches high. Palmer

stepped over this -oaming without help and without any

difficulty (St. 355; Supp. St.: Koski Dep. 31). Koski,

* who ‘tas called hy Palmer ax a witness, testified that

Paltigr was At stumbling as he walked and that Palmer

was able to fwalk without assistance so long as he had

something with which to steady himself atin St.:

Koski Dep. ; 21).

Koski testified that at - the head of the stairway,

Palmer indicgted that he wanted to stay there and talk

‘ with Ws Char. St.: Koski Dep. 10), so Koski pro- ~

ceeded down the stairs to his quarters below. When he

reached the bottom of the sfairway. Koski looked back

and observed that Palmer was starting down. He testi-.

fied that Palmer had hold of both handrails and that he -

was. not swaying or doing anything that indicatéd that,

he was having any, difficulty. He further testified that :

had Palmer-been dojng anything that indicated that he |

was having any difficulty, Koski would have gone,back

up the stairs and helped him (Supp. St.: Koski Dep.

32-33). Wood testified that at the head of the stairway

either he or Koski asked Palmer if he was all right and

that Palmer re tied, “Sure, I an going to, bed” or "I

am .okay.”” When Palmer: started down the stairway,

Wood observed that Palmer had both his hands on-the

handrails and yn apparently proceeding down |

- the stairs: without eulty (St. 355).

In his statement of the Vase, petitioner states (Pet.

cert. 4): ; ier ;

, ** Peterson, the gangway watchman on ‘the vines

~ . - observ at and Wood trying to pick up Palm-

er, who was“hen in a prone position, flat on his |

2 back apparently -* passed out’ with his eyes com-_

pletely closed.” | |

It is true that Peterson so testified in a deposition.

taken Grbehalf of petitioner. Wood, however, expressly

denied that Peterson was everaronnd to make any such |

“cobservation’ (St. 363) ; and in his deposition, Koski at

na, tine mentions the p bp Sence of Peterson, In addition

the testimony of Petersen flatly contradicted a written

and sighed statement naps him on the day of, the

acaident in which he stated that. he had not seen Palnier

at any time when he w ras on gangway -wi -ateli priorlto

the accident ( Supp. St.: Peterson Dep. 29, 30).

-The trial of this’ cause before a jury consumed two

. /

- of both, Courts of Appeals which have passed upon the —

Ney

” ee eee Pe

)

A ~

* “"weeks of time. ‘After deliberation’ the jury returned a

verdict in favor of respondent. The trial judge denied —

petitioner’s motion for a new trial, The Supreme Court.”

of the State of Washington affirmed the judgment’ of

. the drial court and ‘subsequently denied a rehearing to

' petitioner. eee. ~

a oes ARGUMENT

. ‘ . . raat ¢ | |

There Is No Conflict Between the Decision of the Supreme

Court of the State of Washington and the Decision of the

Court of Appeals for any Circuit.

Rather than being i in conflict with the deci ‘ision of any

United States Court of ‘Appeals, the deci ision of which

petitioner , complains is in harmony with the decisions

question which petitioner seeks to bring — this

court. Those two cases are: +s

McDonough v. Buckeye Steamship C ompan4 y

(N.D.-Ohio 1951) 103 F.Supp. 473; (CA 6

1952) 200 F.(2d) 558; cri. den. 345° USS.

926, 97 L.ed. 1357, 73 Sup.Ct. 785 (1953) ;

‘ Robinson v. Northeastern Steamship Corpora-

‘ tion (C ‘A? 2 1956) 228 F.(2d) 679; cert. den.

~ 351 U.8.:937, 100 Lied. 1465, 76 Sup.Ct. 834

e (1956) ; pet. for rehearing den, 352 U.S.-860,

1 Lied, (2d) 70, 77 Sup.€ t. 24 (1956).

bi McDonough v. Buckeye Steamship C ompany the

shipowner was held liable for the negligence of a seaman

who had. voluntarily undertaken to render assistance to

in intoxicated shipmate. In that case, however, there

Wag an established, recognized and invariable practice

for assistance to be rende red to intoxie ated ¢ rewmen at.

* 2.

. eer

. the Great Lakes docks. In its opinion the trial court

' stated at 103 F. Supp. 475:

. “Olson (the Third Mate of the vessel) related

that the customary. and established . practgfe — at

the various Great Lakes docks — was for the dock

guard to detain these men and either turn them

over to a sober r shipmate if one appeared or else

_ » eall the ship. .The officer in charge of the ship the ‘0

. would personally go ashore or would send someone

else to assist the seaman. ‘Mis - procedure was _

known to ‘defendant: and was’ the scouana and!

recognized practice invariably followed, ”?; ;

The trial court then concluded at 103 F.Su pp. 477:

‘Cox, in taking charge of Kerr, was actipg in line

with the well established and recognized practice

known and acquiesced in by the defendants. Obvi-

ously therefore, that Cox was acting within the

course and scope of his employment, sg as to charge

' the defendant with Mability, eannot bg doubted.”

: This decision, i ‘imposing liability upon the shipowner, ’

Was affirmed in aper ‘curiam opinion by the Court of ©

Appeals for the 6th Circuit. Certiorari was: thereafter -

denied by this court. ;

In Robinson v. Northeastern Steamshi p Corporation}

liability was not imposed upon the shipowner for the }

negligence of a crew member whe aad voluntarily under-

taken to render assistance to ‘n intoxicated shipmate.

In that case, however, there v as no established practice —

or custom. .The Court of Appeals for the 2nd Circuit

stated at :228 F. (2d) 681:

‘The case, upon which the appellant relies, Buck- ‘}

eye Steamship Company v. McDonough, 6 Cir., 200

F.(2d) 558, cert. den. 345 U.S, 926, 73 S.Ct. 75, 97

L.ed. 1357, is. -readily ‘iiiaaiadie. There ‘the

shipewner Was held liable for the déath of a

drunken seaman who was drowned when returning.

from shore leave, through the negligence of a ship-.

mate who had undertaken to assist him to the vessel.

In that case in assisting his shipmate the negligent

sailor was acting in accordance with a long-standing

custom, Which had been recognized and approved by

- the shipowner, and consequently he was considered

_as acting within the scope of his employment. In

the case at. bar there was no proof that Woods’

actions were requested or authorized by the defend- —

~ ant, or were in accord with.a ¢ixtom recognized by

the-defendant. Without such authorization Woods

was not'acting within the scope of his employment,

and his negligence, if any, in performing: his Bs.

voluntary undertaking could net be imputed to the

defendant even if successful performance would

further the-interests of the shipowner.”’ ,

* Certiorari was then denied Dy this court, and subse-

quently the’ petitioner's request for rehearing was like-

wise denied by this court. | | ;

The i issuance of a writ of vertiorari in this cause > would

not serve th. ‘tiseful purpose of enabling this court to

‘resolve a conflict in decisions, for there is simply no

conflict’ whic h « ~alls for resolution.

oa | ok. are

The Federal Question Upon Which Petitioner Seeks Re-

_ view Was Never Reached in the Trial Court or, if Reached,

~ Was Waived Upon Appeal to the Supreme Court of the

, State-of Waslpington.

From the three questions set forth by: petitioner as

being the ones upon which he seeks review (Pet. cert. 3),

i eel

a : &

x it can be dedinend that the ultimate federal question

| upon whick he seeks review is the followi ing:

“Tf, ata time when he is off-duty, a member of

the .crew of a vessel voluntarily undertakes to >

render assistance to an intoxicated shipmate, is the

negligence, if any, of the one rendering assistance

imputed as a matter of law to his employer, the

shipowner ?”

Pp titioner. contends (Pet. cert. 6) that the haw

question was reached” v the trial court’s refusing to’

‘give petitioner’ s Reques. 1 Instr uc tion No. 17, and by:

the court’s giving its Tusti uction No. 11.

It is the position of respondent that the, federal ques- —

tion was never reached j in the trial court or, if reac shed —

in the trial court, was w aived by petitioner upon appeal

so _to the Supreme Court of the State of Washington.

1. The Federal Question was not Reached bythe Trial

Court’s Refusing to Give Respondent’s ecnsem In-

struction No. 17. :

In his petition, petitioner dalek (Pet. cert. 6).:

~“It ‘was petitioner’s position throughout the

’ trial, that when Palmer was found on the vessel in

a helpless condition and unable .to look out for his .

- own safety, even: though the helplessness was

~ eaused by intoxication; the vessel and the other crew

__ members owed Palmer the duty to use réasonable

care to assist Palmer to his quarters or to a place of

safety where he would nat be hérmed by reaSén of -

his inability to protect hingelf. This obligation was.

.due Palmer because hy*yeas. a seaman and engaged

in maritime employment. Under this theory, when

‘ Wood and Koski attempted to assist Palmer. to his

- quarters, they were acting in the course of their

employment for the vessel, and not as volunteers.”

“¢

SD eae

eh Q ‘

The record reveal: however, that throughout the trial

_, petitioner took the position that the negligence, if any,

of respondent’ s employees, W ood dnd “Koski, was to.be

imparted, to, respondent not as a matter of law but byw

| reason, ‘of the fac t that W ood ‘pau Koski were allegedly

acting pursuant to a. ree ognized’ custom or practice of

the vessel. ‘Bhat this was in fact petitioner's s position. at

time of trial‘is showh-by the following: no

4. Th his Sec ‘ond Amended Complaint (Tr. 4 4), the ..

n- -- pleading uppH which: the case was tr ied, petitioner.

: Pom in paragraph III thereof:

ie “That plaintiff’ 3 superior. offic er observed the.

"eA plaintiff. and one of his fellow ¢rew members. ob-

served the plaintiff in such condition and -in. ac-

“cordance with the usual and customary practice,

ssist = to sately’ return to his .

a titiower to the trial court was his Memorandum on

Plaintiff’ 's’ Motion for Summary Judgment (Supp. R.

1}. In that memoranduimdpetitioner stated at page 2:

“Lt also appears from these depositions re

i there is no er. that a duty -to help a sick and

helpless seaman has been established as the custom ©

of the vessel and suc ‘h duty which is imposed upon

_ all crew the. bers.’’ (Italies ours. ) eis

On page 3 of that’ memorandum petitioner stated :

“A case directly in point oil all-of the facts and.

which applies the law ts Buckeye Steamship Co. v. | ~ e

_ McDonough, (D.C. Ohio) 1951 A.M-C. 2042, , 103°

FP. — 473, aff'd oe C. A. Gtht)’ 1935 A. M.C, 343

“The case Was tried in the lower ak without

a jury (103 F F.Supp. 473, 1951 A.M.C. 2042). That

court held that leaving the decedent unattended in

a place of danger and the failure to call for im-

_ mediate help constituted actionable negligence for

which the shipowner was liablés: The court further

: held that a seaman who was assisting. the decedent .

~ was in the. course of his employment and acting in

furtherance of his employer’s interest in view of

_ the practice of the’ dock guard to ‘stop drunken

seamen at the gate and not to allow them to proceed

set unaccompanied. There was testimony in that caseg?>

as in the case at sensi that such was the: established

. practice,

“The lower court's opinion — the pre- .

carious position in’ which ‘the decedent was per-

' mitted'to remain and commented upon-the custom-

ary and established practice to assist’ a seaman to

a place of safety when they return to the vessel in

an intoxicated condition.”’ (Italics ours.)

On Page 8 of that memoranduin petitioner stated’ with

respect. to Robinson v. Northeastern Steamship Corpo

ation (CA 2.1956) 228 F.(2d) 679, cert. den. 351 U.S. 01 |

100 L.ed. 1465, 76 Sup. Ct. 834, (1956) as follows:

‘The court distinguished the facts in this case

from that: of Buckeye S. S. Co. v.»McDonongh

= pra) where the assistance there rendered by the

negligent sailor was in accord with a long-standing

custom w hich had beén recognized and approved by

the shipowner and consequently the negligent sarior

was considered within the scope of his employment.

Reference is madc to the testimony in.the McLon-

' ough case which established this recognized custom

_ and practice. The similarity of such testimony to

- that of the case at bar is obviowe.” (Italics ours.)

3. By his Requested Instruction No. 10 (Supp. R. 22): -

ea i

| 11

. petitioner specifically requested ‘the trial court to in-

struct the jury that‘respondent’s liability for the acts of

Wood and Koski depended upon Ww hether those two men

. were acting in accordance w ‘ith an established and recog-

- nized practice or custom on-board the JoHN B. WATEK-

MAN, This instruction was as follows:

“Tf you find from the evidence thfat there was an

established and recognized praetice or custom on

‘ board the SS JOny B. WATERMAN ‘or-its crew

members and officers to assist any other crew mem-

ber who is in a disabled condition by reason of in-

toxication or any other cause and thereby incapable

of looking out for his own safcty, and’to assist said

crew members to his quarters or other place of sate-

ty, and if you further find from the evidence that

Engineer "Wood .and Frank Koski were assisting ©

_ the plaintiff Jolin C. Palmer’ in acco?dance with

such practice or custom, then ‘L-instruct you that

Engineer Wood and Frank Koski in assisting John

C. Palmer were acting in the course and scope of

their employment for the defendant, Waterman

Steamship~ Corporation,. at that time.”’ (Italies

“ours. )

At no time during the trial of this cause e did petitioner

withdraw his Requested Instruction’No. 10, |

4. Throughout the.course of the trial, counsd for peti-

- tioner asked questions of every seafaring witness with

réspect to the custem or practice on board the JOHN B.

WATERMAN of ‘crew members rendering assistance to

, intoxicated shipmates. If, as petitioner now contends,

negligence was to be imputed to respondent as a matter

of law, all of those quéstipus were completely irrelevant

and could only have misled the. trial court as to: peti-

tioner’s theory of liability. eas i

12 .

. 4

5; Petitioner at no time requested the trial court to ©

charge the jury that respondent was liable as a matter of

law for the. negligence, if any, of its employees, Wood

and Koski. Such request would have‘ been in these or

_ similar words: —

**T instruct you as a matter of law that a member

of a-ship’s crew is acting within the scope of his

employment when he undertakes to render assist-

ance to an intoxicated shipmate. If you find there-

fore tha@)onald Wood and Frank Koski undertovk

to render assistance to plaintiff at @ time when

plaintiff was intoxicated, then defendant Water-

man Steamship Corporation is liable fur any negli-

gence of Donald Wood and Framk Koski in render-

ing that assistance to plaintiff. =

Petitioner’s Requested Instruction No. 17 was yo such

‘request, fur had the trial court given that instruction, it

still wold have had to instruci the jury with respect to .

the imputation of negligénce to respondent.

Moreover, the trial court did in ‘fact charge the jury

upon the very issues suggested by petitioner's Requested

truction No. &} The first sentence of the requested

* instruction was as follows:

**T instruct you that under the law and facts in

this case there is a duty‘on the part of the officers

and crew of the SS Jou B. WaTeRMAN to exertise

reasonable care fo escort and assist a fellow crew’

member of that vesse] when on board and in a help-

less condition by reason’ of intoxication.” (Italics —

ours.)

This sentence simply reiterates the contention made

in petitioner's pre-trial motion for summary judgment .

_ to the effect that a duty to assist petitioner had been

“established by -an allegedly uncoutroverted proof of

- custom and practice on bourd the Jouw B, WaTeRMan. —

(As pointed out by the Supreme Court of the State of

Washington, however, the testimony upon this point

was conflicting so that the issue was properly submitted

to the jury.)

»~

This sentence of the instruction also speaks upon the .

standard of care to which the actors are held, i.¢., to ex-

“ercise reasonable care. That standard of care was, how-

ever, covered by the trial court in its Instruction No.7 —

_which charged the jury as follows:

“Negligence is the failure to exercise reasonable

and ordinary care, aud by the term ‘reasonable and

ordinary care’ is meant that degree of care which

an ordinarily careful and prudent person would ex-

’ éercise under the same or similar circumstances or

conditions.’ (Appendix 3)

_ The second sentence of the requested éastruction was

as follows:

“I further instruct you in determining whether

or not a sedman was in such condition as to require

the assistance to which I have heretofore referred,

’

you shall consider his condition with relation to the —

circumstances existing around said seamau and the

(~~ place where he was found, at the time|he was ob-”

served by the officers or men in such condition.”

This aspect of the requested instru. tion was fully cov-

ered by the trial court in its Instructions Nos, 12A and

14. Instruction No, 12A was as follows:

“| instruct you that the conduct of Frank Koski

and Donald Wood with respect to plaintiff is to

be judged, not by the actual state of sobriety or

- intoxication of plaintiff at the time Frank Koski

ee) oS

‘and Donald Wood were accompanying him, bit

‘rather by his state of sobriety or intoxication as

_ then would have appeared to reasonably prude ut

men in the situation and circumstances. of Frank

Koski and Donald. Wood.”’ (Appendix C) |

Instruction Ne. 14 was as follows:

““T instruct you that the term ‘helpless,’ used in

these instructions, refers, in the normal’ meaning’

of the word, to the inability of a member ¢f the

‘erew to cure for. his ‘own safety on board of the

veSsel in view of the conditions existing on bowrd

said vessel at that time.’’ (Appendix D)

Having given its Instructions Nos, 7, 12A, an@. 14,

the trial court would have had e¥ery reason to believe

that it had fully. covered the issues upon which peti-

tioner had requested instruction by its Requested In-

struction No. 17. The trial court had no way. “of divin-

ing that petitioffer was requesting the court, as he now

contends, to instruct “the. jury that the . egligence, ‘if

ay, of respondent's employées was to be iaputed as a

matter of law to respondent. It was not put on notice

‘by petitioner’s Requested Instruction No. 17 that. peti-

tioner had adapted an entirely new and, different theory .

* er. liability:

2. The Federal ities if Reached’ by the Trial Court’s |

Giving Instruction No. 11, Was Waived Upon Appeal _

to the Supreme Court of the State of Washington. ‘

At the timg of trial the -ourt instructed the jury by.

its Instruction Ne. 11 that réspondent was not liable for ,

the acts of its employees, Wood and Koski, in rendering

_assistatice’ to Palmer, unless the jury found. that there

was a custoin or practice, known to respondent, for mem-

¢ ; ° :

7 i ; ; 4

oo # a

F line of the erew of the JOHN B. WATERMAN to assist,

other members: of the crew. who were intoxicated.

The. court. was fully justified. in giving that instrue-

_ tion because petitioner had himself requested its equiva-

lent by his RequestetKLastNiction Nal0 (Supp. R. 22).

The vourt’s instruction was. mene

holdings. in McDonough v. Buckeye. Steamship Com-

pany (N.D. Ohio 1951) 103 F. Supp. 473; (CAG 1952)

200 F.(2d) 588; cert. den. 349 U.S. 926, 97 L.ed. 1357,

arely upon the —

73 Sup.Ct. 785 (1953). and Robinson .v. Northeastern.

_ Steamship Corporation (€A2 1956) 228 F.(2d) 679;

cert. den. 351 U.S. 937, 100 L.ed. 1465, 76 Sup.Ct. 834

(1956) ; pet. for rehearing den, 352 U S. 860, 1 L.ed.. °

. (2d) 70, 77 Sup. Ct. 24 (1956).

—— «Ttis self-evident that if the tetal court was in error

" in giving its Instructioh No. 11, that error was plainly

invited by a when he submitted his — :

. Instruction No. 10.

” Moreover, upon his appeal to the Supreme Court of

the State of Washington petitioner stated his sole

ground for appeal froth’ the giving of Tastr uction No.

. 1lin the following words (Supp. R. 30; App. Brief 52) :

. **The court commiittéd error in the giving of In- ;

struction No. 11 which charged the jury:

[here the instruction was set out)

such definition. of. practive or custom is incorrect :

_ | because *! requires the jury to find that the custom

of .

was, followed without variance and hot generally

“and that the.custom or,practice must be followed

_ evety time before such duty-cord be established.” °

This assignment of error was in compliance with Rule

frees) : «16

| 43 of the Rules on Appeal. promulgated by the Supreme |

: Court of the State of Washington which provides as.

| follows:

‘‘No alleged error of the superior court will be

‘considered by this court unless thie same be definite-

ly pointed out in the ‘assignments | of error’ in ap-

, pellint ’s brief .

The Supreme oie of the State of Washington dis-

. posed of that assignment of error by correctly pointin,

“ee out that the appellant made no such objection.te the

instruction at tke time of trial and that he could not —

make: such objec tion fyrthafirst time upon appeal ( Pét.

cert. 18). Te oe ed eee

Appellant chose to appeal to the Supreme Court of.

the State of Washington solely upon the ground that

ie word ‘‘invariable”’ should not have been included

in the instruction. ‘Having so chosen, he thereby aban-

ae any other possible errors in that: instruction.

Ennis t’, Ring, 49 Wn. ) 284, 300 P. (MM) Ti

(1956) ; |

Erdmann v. Henderson, 50 Wi, ad) 296, 311

P.(2d) ‘423 (1957).

He'cannot now be heard to say that the giving of that

instruction reached ‘the. federal question. wpon. which :

he now seeks review inasmuch | as he did not bring that ,

- question before the Supreme Court of the State of

‘ Washington tr decision, - pales

~ eis

This Case Was Disposed of by the Supreme Court of the

~ State of Washington Upon a Non-Federal Ground Which

Was Sufficient in and of Itself to Sustain the Judgment.

No principle has been: more firmly established by this

court than that‘it will not review the judgment of a.

state court if that judgment rests upon a non-federal —

ground sufficient in and of itself to sustain the judg-

- ment. . | | Fe ;

In For Film Corporation v. Muller, 296 U.S. 207,

80L.ed. 158 (1935) this court stated at 296 US. 210, .

80 L.ed. 159: ae F a ee

_ . that where the judgment of a state court rests upon

‘two, grounds, one of which is federal and the other .

non-federal in character, our jurisdiction fails if

the non-federal ground is independent of the fed-

eral ground and adequate to support the judgment.

This rule had become firmly fixed at least as early

us Klinger v. Missoukt, 13 Wall, 557, 263, 20 L.ed. > .

635, 637, and has been reiterated in a long line of

cases, since that time.” “es

In the case of Lynch v. People of the State of New .

~ York, 293 Us. 52¢ 79 L.ed. 19) (1934) this.court stated

‘at'293 U:S. 54, 79 Led: 192: '. .* ne: :

“It is essential to the jurimdiction of this court

in reviewing a decision of a court pF a state that it

“must, appear affirmatively from the record, not only

‘that a federal question was presented to the hishest

court of the state having jurisdiction but that its

decision of'a feder:|.question was necessary to the

determination of the cause, and that it was actually

.* decidgd og that. the judgment as-rendered could not

have been given witnout deciding it. (Cases cited.)

”

Where the judgment of the state court rests gn two .

grounds, one involving a federal question and the

other not, or if it does not: appear upon which of

two grounds the judgment was\ based, and the™

ground independent of a federal Question is suffi- ;

cient in itself to,sustain it, this co will not, take

jurisdiction.”’

By: petitioning for a writ of: certiorari,’ petitioner

seeks an opportunity to try tp persuade this court to

old that a shipowner i is ‘liable as a matter of law for

e hegligence, if ‘any, of a crew member who volun-

tarily undertakes to render assistance to an intoxicated

> ‘shipmate. ae . ;

| By affirming the trial e court’s ‘iatietion No. 1], how.

ever, the Supreme Court of the State of Washington

has-already held that the imputation of negligence to

the shipowner is dependent upon the existdnce of a

recognized, custom or practice of rendering, such ds-

Ks sistance. That holding was based entirely upon a state

ground.

At the time of trial petitioner took exception to the

giving "of Instruction No. 11 in these words (R, 33) +

Plaintiff excepts to the court’s giving. of In-

struction No. 11, where the court makes it as an. ‘

_ issue whether or not a custom or practice to care .

_ for helpless seaman exists, Which ‘instruction reads:

_as follows: fe

_ Ehere: the instruction was set out]

- on the oveilind and for the reason stated in my me- eo

’ tion to direct the*jury to tind such custom and ae

tice asi matter of law and does not apply to mar"

time law.”’

(It is to he particularly noted that in this mee ,

taken on the final day of trial, petitioner was still speak-

ing in terms of ‘custom and practice")

As pointed oit in the preceding Section of this brief,

petitioner's qnly- assignment of error to the Supreme *

Court of the State of Washington with respect to the

trial court’s giving Lustruction No. 11. was in these’

_‘words:* .":. = TF Reyer Wee |

_ “The court committed error in the giving of In-

«. struction No. 11 which charged the jury: .

[here the instruction was set out] m pee ie

such definition or practice 3f cuXom is incorrect

because it requires the jury to find Naat the custom

was followed without -variance and not generally

and that the custom or practice must, be followed —

every time before such duty coulld be established.” -

The Su fine Court of the State of Washington sus-

tained the giving of that instruction in these words (Pet.” =

cert. 18): . ; ; , ‘ a

. ‘Appellant assigns as error the submission to

..the jury of ‘the issue of whether or not theré was

an ‘invariable’ custom under which the shipowner

owed a duty of care to an intoxicated seaman. The

testimony of this point was contlicting and appel-

lant now objects to the word ‘invariable’ inthe in-

structjon..No such objection was made at the. time

the pibiaidien was stibmitted to the jury. It can--

not be raised later for the first time.”

. The Supreme Court.of the State of Washington was

compelled to so hold by its many prior hollings that

an appellant will not be heard ‘to appeal from the giv-

infy of an instruction upon a ground which he’ did not

call to the attention of the. trial court.

~*~

‘itself. to sustain the judgment.

_@. | \ 20 ee -

Peterson v. Ki ing County, 43 Wn-(2d) 860, 278. .

P.(2d) 774 (1954) ; .

. Sigurdson v. City of Seattle, 48 Wn. (2d) 195,

ee (1956). ’

By Sustaining the trial ocourt in “the giving “of In-

struction No. 11, the Supreme Court of the State of

ae Washington has ruled. upon a nouu-federal ground: (the

failure by petitioner - to comply - with applicable state

* appellate . proceduré that Instruction No. 11 was in-

vulnerable upon appeal. It has thereby held that the .

| trial court properly charg he: jury that-yespondent

was not liable for the acts*o *Donald Wood aust rank

Koski unless those men were acting pursuant to a recog-

nized practice or custom of assisting intoxicated crew-

men. a

This holding makes futile the issuange of a writ of

- certiorari .in this cause inasmuch as the reme Court

of the State of Washington has thereby completely dis- .

posed of the question upon whicli petitioner seeks re-

view upon a uvn-federal ground —e in. and af

Should tis court issue a writ of oettiapart in order

Mhaeview | the refusal by the trial court to give. peti-

tioner’s Requesteé Instruction No. 17, it woffld find .

that it could not bold that the trial court had erred in

—_ to, give that inst: ‘uction without at the same

time holding that the Supreme Court of ‘the State of

Washington was in error in holding (upon a =

eral grouid), that there was no error in the giving of

Instruction No. 11.

— this court should leave ee the holding of

-. the eoaeion Court .of -the State of Washington sh .

respect to the trial court's Instr uc tion No. 11 but should °

hold that the ¢rial court was' in error in its ‘failure to |

give Requested Instruction No..17, the trial court upon

re-trial would ‘be left in a. ‘position where it could net

at one and. the same time’adhere to the. decision of the

Supreme Court of the State of Washington and to that

a this courte This, because the trial court’ s- Instrue-

tion Ne. 11,) already kustained upon. 4 non- -federal :

ground, is in irreconcilable conflict, ‘with petitioner’ s

Requested Instruction No. 17. The fornier tells the jury ..

that liability can.be imputed to respondent , only if Don-

ald» Wood and Frank Koski were acting: pursuant toa.

recognized pragtice and custom rendering assistance

to intoxicated shipmates. The latter (if petitioner's pres-

ent inter ‘pretation of that request be ace epted) tells the

jury that. respondent. is liable as a matter of law for

the acts ofits. einpiloyees irrespective of any prac tice

or custom. Such contradictory : (: astrue ‘tionsscould not

be given to a jury. = :

. The trial court upon re- trl would be compelled by

a ‘long line of W ashington ‘deci ‘isiGns to give Instruc-

‘tion No. 11 again, ‘for instruc tions whieh have been sus-—

tained upon appeal. become thereby: the “law of the

_dise’? and must be given upon ye-trial.

Kennett v. Yates, 45 W Ll. (2d) 35, Zva ¥: (24)

122 (1954):

Columbia Steel Company v. State of W ashing--

ton, 34 Wn. ( 2d) 700, 209 P. (3d) 482 (1949) ; —

Miller . Sisters of St. Francis, 5 Wn.(2d) 204,

- 105 P.(2d) 32 (1940). ;

at would bein ni gi Sanur a futi thing for a court. ,

wren court is pre- _

aside the ‘holding by the Supreme Court

# Washington, upon an exclusively non- |

federal ground, that the trial court did not err.in Biv .

ing its Instruction No. 11.'

CONCLUSION A ,

We therefore respectfully urge that a writ ‘of certi- ;

orari not be issued in this. cause to the Supreme Court

Of the State of Washington.

. &

oF a on _ Respectfully submitted, .

FRANcIs L. Terreavir’

-DonaLp 8. VOORHEES. |

_ Attorneys-for Réspondent

“= Bey

“93

APPENDIX A

_ PETITIONER'S REQUESTED. INSTRUCTION ‘NO. 10

7 | (Supp. R. 22)

ie you find from — that there was an, estab-

«lished and recognized actice or custom on board the ’

SS “JoHN B. WATERMAN” for its crew members and

officers to assist any other crew member who is in a dis-—

abled condition by reason of intoxication or any other

cause and ther eby incapable of properly looking out for °

his own safety, and to assist said crew member to his_

quarters.or other place of safety, and if you, further |

. find from thd ¢vidence that Engineer Wood and Frank

he Koski: were assisting the plaintiff JoHpyC. PALMER in

‘ accordance with said custom oy zac 9 30 I instruct ./

you that Engineer Wood and Frank Koski m assisting

John C. Palmer were “ac ting in. the course and scope

| of’ their employment. for the defendant, WATERMAN,

rs STEAMSHIB CORPORATION, at that time. -

‘

‘ile Me Caneel v. Buckeye Steamship Co., 103. F. Supp.

M73, 1951 A.M. C. 2042, aff'd (CCA 6) 1953 A.M.C. 343.

APPENDIX B >

TRIAL COURT'S INSTRUCTION NO. 7 (in part)

ee (Statement of Facts 441) -

“Negligence” is the failure to exercise reasonable

and ordinary care, and by the term ‘reasonable anid -

ordinary care’’ is mean, that degree of care which an

ordinarily caréful and udent, person’ would exércise 7

under the same or similar’ ejreuatancee or conditions.

t.:

-. TRIAL COURT'S INSTRUCTION NO. 12A

(Statement of Facts 444) |

I instruct you that the conduct of Frank Kgski and

* Donald Wood with respect to plaintiff i is to be judged,

- » not by the actual state’ of, sobriety or ‘intoxication of.

plaintiff’ at the time Frank Koski and Donald Wood

" were accompanying him, but rather by his state of

sobriety or iitoxication as then would have appeared

‘to reasOnably prudent men in the situation and cit-

_.-timstances of Frank Koski and Donald Wood. :

APPENDIX €

APPENDIX D

TRIAL COURT'S INSTRUCTION NO. 14 .

(Statement of Facts 445)

I “instruct you that the term “helpless,” > used in these

instructions, refers, in the normal meaning of the word.

to the inability of a member of a crew to care for his

own safety on board Of the vessel in view of the condi- -

tions existing on. board said vessel at that time.

8 -

aes

APPENDIX E

- RULE. 43 OF THE RULES OF APPEAL OF THE le

‘SUPREME. COURT OF THE STATE OF WASHINGTON

(Rules of Court Revised Code of Washington Yol 0)

‘No alleged error of the superior court will be consid-

ered by this court unless the sume be definitely pointed

out in the ‘assignments of error” in appellant's brief. _

In appeals from all actions at law or in equity tried to

the court without a jury, the’findings of fact made by

the court will be acéepted as the established facts in'> .

the case unless error is assigned thereto. No error as-

signed to any finding or findings of fact made of reé

fusedewill be considered unless so much of the finding ”

or findings as is’ claimed to be erroneous shall be set

‘out verbatim in the brief. No error assigned to the in-

clusion, omission, sufficency, or insufficiency of an in-

struetion or instructions, given or not given, will be

considered unless such instruction or instructions, as

the case may be, shall be set ‘out in the brief in full.

Provided, That the objection that the superior court

had no jurisdiction of the cause or that the complaint

does not state stifficient facts‘to constitute a cause of

action, or that the suprenie court has no jurisdiction of

the appeal, may be taken at any time. *

APPENDIX F

. PETITIONER'S. ASSIGNMENT OF. ERROR NO. 3 TO

; THE SUPREME COURT OF THE STATE .

OF WASHINGTON .

(Supp. R. 30: Brief of Appellant 52).

-. The court committed error in the giving of Instrue-

tion No. 11 which charged the jury = es ie

. “TJ instruct you that defendant is not liable for -

the acts of Frank Koski and Donald Wood in ren-

dering assistance to plaintiff unless .you find that

there was on.board the ‘Joun B. WATERMAN’ a

practice or custom which was itivariably Pellowed —

_ and which was known to or should have been Known. -

in the exercise of reasonable care to the Master of

the ship owned.by the. defendant and which was for

‘the bynefit, of the shipowner.”’

such ‘definition of practice or custom is incorrect be-

cause it requires the jury to find that the custom was

followed <7ithout variance and not generally and that |

_ the custom or practice must be followed every time be- .

fore Such duty could be established. '

. is

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.