Petition for Writ of Certiorari — The Arizona v. Anelich

Supreme Court brief1936

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FILE COPY. _ | DEC 31 1935

* GHAMLoO Asal OR SELES,

QL4A

SUPREME COURT OF THE UNITED ~SaPES—-“—~

- OCTOBER TERM, 1935

No. 667 = 4

THE “ ARIZONA,” ANTONE MARDESICH AND WIFE, i

PETER MARDESICH AND WIFE, anv GENERAL

CASUALTY CO. OF AMERICA, :

Petitioners, i.

ANTONIA ANELICH, as ApmryisrratRix or THE HstarEe ,

or Mario Axgticu, Decrasen. e

PETITION FOR WRIT OF CERTIORARI TO THE he

SUPREME COURT OF THE STATE OF WASHING- is

TON AND BRIEF IN SUPPORT THEREOF. i

Ratpn S. Pierce, : sg

— 1200 Henry Building, t

Seattle, Washington, ‘

Counsel for Petitioners. i

| e

”

Kpwin J. Cummins,

Gorpon H. Sweany, ;

Of Counsel.

ERP ERR GIES

INDEX.

SuBJecrT INDEX.

nnnens Ger Welt of Chethemeih. coke ccccccccaccccccccececesccececse

Sap ey “Gs ne GN, 2nnc00s50s00se0cdcse0eseseeses 2

B. Reasons allowed on for allowance of writ....... seadentéenen 5

L. Assumpjfoa i Scpakebsssconsdatdsbedssecscocsovossses 5

If. Failpre of proof. of negligence contributing to injury........ 9

111. Proper care and treatment OF NE Win cknccevdtiacess 10

IV. Failure of proof that improper care contributed te death.... 12

ee we WE denccogeae tustecctsess PYTTTTTITT TT aie aaa 13,

Brief in support of petition for writ of certiorari................... 15

iy ne Ce GUUe Gc sncccdccedeccbecacceseuesacoeeece 15

ON ES ee 15

es. es Gr Ge I oh nenakcdocesecdbeneedeedeescosoecs 17

IV. Specifications of error .......... a a re el ae : 21

ep ee se ea SE ee easoteecacdes 21

A. Assutuption of risk is an available defense......... Besa 22

i. There was a complete failure of proof of negligence... ... 23

1. Contributing proximately to the original injury... . : {Terr 37

2. In the care and treatment, of the injured mari...... aeetes 37

s 3. Contributing proximately to the septicemia causing death. 40

Conclusion Prrrrerrrrr Terrier Deccccccccccccccrccccccsccccescces

TABLE oF CASES CITED.

a se a daduahuuvscemaceuat

Chicago, M. & St., P. Ry. v. Coogan, 271 U.S. 472............. 12, 13, 16, 41

en or ork a rn Oe SUD Oh cc ccccadaseccedcacectssecncen a 33

Colusa, The, 248 Fed. 21..............005 pusebisubesebuceseeuancs 30°

* Cortes v. Baltimore Insular Line, 287 U. S..367.................000. 11

€ortes v. Baltimore Insular Line, 66 F. (2d). 526.................6. 13, 40 -

Cortes v. Baltimore Insular Line, 6 Fed. Supp. 604....... Se slamauie 2 :

Gbeteet, Pha, T2 F.°(BR) BOh.,.ccccrccccccesccccccccccccccescseses 6, 28 j

Cricket S. 8. Co. v. Parry, 263 Fed. 523..... peabseudcpivckeneccoccas 30 ;

Ounard 8. 8. Co. v. Smith, 255 Fed. - sahanunds Nesnhesassseesauans &, 30 ;

ienien ¢ ete., Ry. v. Koske, 279 U.S. 70...... andebecseseesadseeae 16, 23

DeLuca v. Shephard S. S. Co., Ine., 6 fa: |S SS eee ere 36

Eldridge v. Atlas S. S. Co., 134 N. Y. US7..........2-005008 sasenaoas 30

Engel v. Davenport, co & © Seen cd eee Ceaeaue Reancaanin 24

a Oe Ge, Oe, PE SE UE, Dn cccabecécececepecesseced Soageces 8, 30

iioverner, BO, BED FOR, Gob oc cccccccccsecccdcccccccccccessccccsne 38

_Grant v. U. &., etc., Corp., 22 F. (2d) 488...........2eccececeeeeete 7, 33

Grimberg v. Admiral Oriental S. S. Line, 300 Fed. 619.............. 7,32

Bemre v. Rothschild & Co., 136 Wash. S22. . 02... ccc ccc ccccccccces 36

—7241-C

ig i INDEX

: Page

Hansen v. Luckenbach BS. B. Ga, GF. CUR) Wabi on cv tcicdcvawesen eee 32

Hindustan, The, 37 F- poe 932, Aff. 44 F. (2d) 1015..... iudubaeen ce. 36

Holm y. Cities Service, etc., Corp., 60°F. (2d) 721.............0008. 30, 34

Howarth v. U. S., ete., Corp., 24_F. (28) 374...6... ccc ccccesccccces 7,33

Huffine v. Alvin Investment Co., 126 Wash. 490; .........ccccccceece . 4

Hunt v. Hobbs, Wall & Co., 42 Vr. Es kak d ks caekswaneeneatesnn 7

Ipswich, The,” 48 F. (2d) rare SS er eR a rer ed ‘t,o8, a0

toeemnin, The, WOE T, - PR n nks eois vec aavccexs 6, 10, 12, 16, 22, 25, 28, 37

Sen. UT Os i, Sn Te 0 Fak oan ec sen sacadetseietus 7,33

Saceha 0. Gentheren Ry. On, 201 GW. B BW... 25 ssn cn ces cscctassas 8

Jeffries v. De Hart, 102 Fed. 965... 0.2 ccc cccccscccccscceascess mae 36

Kahlstrom y. International Stevedoring Co., 141 Wash. 374.......... 36

Labatt, Master & Servant, V. 4 (2nd Ed.) P. 3935.................. 30

LaFourche Packet Co. v. Henderson, 94 Fed. 871...........5.0.0085 30

Lejeune v. Gen. rig Corn: {Cal Ape.) 45 Fac. 220k 6 cc acck snes cscs 32

Lipioeen 9. U.S, eek U.S Ses onic c osc is ween a oa ean 216s ia avealee 26

Lloyd v. Hogan " ie a Oe ek Pn hk edd eke ede ctiaenise 36

Lone <. Gitveriine, 45 8. CG) 885 ooncscsccsipesncssccc sous swawkaue . 36

Lethon, Wi, GB Ge GR, ooo o cskn cs nken cscs isactscnssacenes 8, 30

Lundgren v. Pac. Coast 8. S. Co., 103 Wash. 81-....- Gees Saipan naern 36

_ Maharajah, The, A Wed! TS ooo ak can vc heen cecagseseeas se eeces a eee

Mangore, The, = Fed. Supp. 138........ ah areata ape elahl Gate a seba iain alice 32

Majulis v. U. S., ete., Corp., 31 F. (2d) 284...... Ks aREeaahadccasn 32

Max Morris, Noa BE Ws es Bach bonnie cnet ens csenns ebsites s¥ exes 23

M. J. McCahan Co. vy. Stoffel, 41 F. (2d) 651.............00-06- woos 0,381

MeGinn vy. North Coast Stevedoring Co., 149 Wash. 1............... 7, 36

McPherson v. Twin Harbor, etc., Corp., 189 Wash. 61..............: -. 30

New York Cent. Ry. Co. v. Ambrose, 280 U. S. 486.............. 10, 12, 16

Northwestern Pac. Ry. Co. v. Bobo, 290 U. S. 499..............44. 23, 29

Northwestern Ry. Co. v. Page, 274 U. S. 65...... ees cea ecaGsuers 10, 16

O’Brien v. Luckenbach S. S. Co., 293 Fed. 170..............00 0000s 36

Osceola, The, 189 U. 8. BG cas eadadevd ea seeanw ease hpiratae ee ee 25

Panama Ry. Co. v. Johnson, 264 U. 8S. 375...... pabendsdscdseeswegs

Panama Ry. Co. v. Johnson, 289 Fed. 964. ...........eceeeceeeces ¢

Patterson v. Cleveland Cliffs Iron Co., 27 Oh. App. 316.........+.++

Peterson v-G. N. Ry. Co., 166 Wash. 538.......2.0..022ee setae eens

Peterson v. Sanford Tug Co., 28 F. (2d) 283............ eee eeeeees

Pittsburgh S. S. Co. v. Palo, 64 F. (24) 198...........cc cee ee ee eeee

Richelieu, hg 48 F. (2d) 497....... ccc ees eeeeeee gu Se dakaeneawna

Ruling Case Law, V. 24, P. 1171 Sey ee Prt ee rer rere ey

Russell v. Pere Marquette Ry. Co., oab Mich. €40........20..2055 er

Saratoga, The, 94 Fed. 221..... PENSE Ae Pos Gone ene Oe fe vrei

Scandinavia, i, Ce EG al ede kvien dddexacbcdes Race en Laws

Scheffler v. Moran Towing & Transp. Co., 68 F. (2d) 11

Schotis v. North Coast Stevedoring Co., 163 Wash. 305...........--

Seaboard Air Line v. Horton, 233 U. S. 492............04.- cenaenk

Serapis, The, 51-Fed. 91...... peadV atures ledscnkdsdaakdoandaance

_ Skolar v. Lehigh Valley Ry. Co., 60 F. (2d) 898.............. eas

INDEX | iil

Page

Southern Ry. Co. y. Hermans, 44 ‘F (2d) 356 ADELE iy RAS ge LE Pee eae i538

State S. S. Co. v. Berglann, 41 F. (2d) 456....... Ce ee Ale 32

Stevens v. O’Brien & Co., 62-F. (2d) 683......... ccc ccc ccc cnc cccee %, 3

Storgaard v. France & Canada S. S. Co., 268 Fed. 545............. 8, 33

Toledo, St. L. & W. Ry. v. Allen, 276 U. S. 165..... Por ey rere yee . 10, 16

Re Re ee rn ae eee 32

U. 8S. ete. Corp. v. O’Shea, 5 F. (2d) 128.......... Rees Aaa Rieke wae - 32

-Van der Duyn, The, 261 Fed. ce Ln Pt ae ee : 38

Warner v. Goltra, — U. S. —, 55 St. Ct. 46, 79 L. Ed. 8............. 27

Yaconi v. Bradley & Gloe, Inc., 246 N. Y 300, 158 a |S er 36

MS I EE WU core dawe kins ccoucdncibsawarece cece Ge wok

maeeet v. TB. ete. Comm, 10 F. (90) G0. onan cc cc ccc cccccscccccecs 32

: TABLE OF STATUTES CITED

Federal Employer’s Liability Act, 35 Stat. 65, 450 U. S. C. A. 51-59. 23

Jones Act, 41 Stat. 1007, 48 U. S. C. A. RMN MAwktaceeataakdue see 2, 16, 23

Merchant Marine Act, 41 Stat.'1007, 48 U.S.C. A ee 2, 16. 25

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1935,

No. 667

Tue ‘‘ARIZONA,’’ ANTONE MARDESICH AND WIFE,

_ PETER MARDESICH AND WIFE, ano GENERAL

CASUALTY CO. OF AMERICA,

“ Petitioners,

vs.

ANTONIA ANELIOH, AS ADMINISTRATRIX OF THE Estate

oF Mario Aneicu, Deczasep.

PETITION FOR WRIT OF CERTIORARI.

_ To the Honorable Charles Evans Hughes, Chief Justice of

the United States, and to the Associate Justices of the

Supreme Court of the Umted States: |

. The ‘ Arizona,”? Antone Mardesich and wife, and Peter

_Mardesich and wife, and General Casualty Co. of America,

respectfully petition the Court to issue a Writ of Certi-

orari to the Supreme Court of the State of Washington,

Tequiring that there be certified to this Court for deter-

mination by it that certain cause in which the petitioners

- Were appellants and respondent herein was respondent;

being Cause No. 25626 in said Sypreme Court of the State

of —— for the following reasons :

‘The ‘Supreme Court of the State of Washington has de-_

cided in this cause a material and substantial question of

law arising under the Jones Act (sec. 33 of Act of Con-

gress of June 5, 1920, 41 Stat. 1007, 48 U. S. C. ‘A. 688)

in a way not in accord with the majority of the decisions

of the Federal Circuit and District Courts; that the ques-

tion has not been passed upon or decided by this Court;

and that upon such question the decisions of the Circuit

and District Courts are in conflict and cannot be recon-

ciled. .

The Supreme Court of the State of Washington has de-

cided in this cause two material and substantial questions

of admiralty law in conflict with the applicable decisions —

of this Court and of the lower-Federal Courts.

The Supreme Court of the State of Washington has de-

cided in this cause a material and substantial question of

law arising under the Jones, or Merchant Marine Act (41 _

Stat. 1007, 48 U. S. C. A. 688) in a way net in accord with

the applicable decisions of this Court.

Said Supreme Court of the State of Watinabin is the

highest Court of that State in which a decision upon such

questions could be had.

_ .

Summary of Matter Involved.

-Antone Mardesich was the owner and his son, Peter

Mardesich, was the master of the purse ‘seine fishing ves-

sel ‘‘Arizona’’ during the season of 1933. Mario Anelich,

plaintiff’s decedent, was a member of the crew of the ‘‘ Ari- |

zona’’ during that season, serving as winchman, or winch

tender. The fishing was done in the waters of Puget Sound.

ne eg ea ee, Cee ed ee Se rea

_ a——

3 .

He was a during the pursing in, or r drawing together

and raising, of the net by the winch, receiving an extensive

open fracture of his left leg. ;

_ The work he was doing and the equipment he - was using

at the time of his accident were entirely familiar to him.

He was an experienced fisherman and winchman and prior

to his accident on August 1, 1933, he had assisted in haul-

ing in the net, using the same method of operation and

_ the same equipment, approximately one hundred and fifty

times during the 1933 fishing | season (R. 234, 235, 293,

307). He received his injury when his leg became en-

tangled in a line which he alone handled and was drawn .

into the winch (R. 235, 295, 309).

As soon as his peril was seen, the winch was stopped and

he was extricated, a tourniquet being placed upon his leg

by the members of the crew (R. 306, 308, 312-313, 267).

. He was transferred to the fastest boat available and taken

to the nearest medical attention, at Friday Harbor on the.

opposite side of San Juan Island ‘from that where the

‘‘Arizona’’ was fishing (R. 82, 253, 254 ,317). Enroute a tele-

phone call was placed to the Coast Guard and the cutter

of the Coast Guard picked him up that afternoon and took

him to the Marine Hospital at Seattle, Washington (R.

254, 264).

He was injured at about 8:30 o’clock A. M. He arrived

at Friday Harbor at about 10:30 A. M., and Dr. Sturde-

vant immediately cleansed and repaired the wound and

made him as comfortable as possible (R. 260- 261). The cutter

arrived at 5:00 P. M., and took him to Seattle-where he was °

received at the Martina Hospital at about 10:30 that evening

and put to bed. No operative measures of any kind were

taken until the next morning, at which time the leg was

set and.a cast applied (R. 160, 165). Two or three days

later, a general systemic poisoning became apparent and

he died on. August 8, 1933, his death being due to -septi-

cemia, or blood poisoning (R. 154, 156). These facts are

undisputed. References to the record for testimony rele-

vant to the questions herein raised, are made subsequently

throughout this petition and the supporting brief.

This action was instituted, under the Jones Act, in the

Superior Court of the State of Washington, alleging as

the acts of negligence relied upon: That the machinery

and equipment which Anelich used was old, worn out, de-

‘ fective, dangerous and unseaworthy; that the place where

he was ordered to work and equipment he was ordered to

use were defective and dangerous; that no one was in the

engine room of the vessel at the time the accident occurred

and that due to the defective condition of the machinery,

and more particularly the clutch on the winch, the winch

could not be shut off on deck;.that the consequent delay in

‘shutting off the winch caused the injury. Further, that

after the accident the defendants were negligent in their

treatment .and care of the injured man in not taking him

to some other port, or in not calling an airplane to take

‘him to-the Marine Hospital in Seattle; and that as a con-

sequence of such negligent treatment, blood poisoning de- —

veloped, causing his death; that had the defendants not

been negligent in such treatment, blood poisoning would

not have developed a Paragraphs Vil, Viti,

IX, R. 3- 5).

The defendants denied that they were negligent in any

respect charged and alleged that the accident was due solely

and proximately to the negligence of Anelich and that his

injury was due to risks naturally incident to his employ-

ment, which were open, obvious and apparent to him and

therefore assumed by him asa part of his employment —

— R. 8- 10).

The trial court refused to grant a non-suit or direct a

verdict for the defendants either on the basis of assumption

of risk, or of failure to prove negligence proximately caus-

ing Anelich’s death. As to assumption of risk, the Court

stated that in this action, brought under the Jones Act,

there could be no assumption of risk of injury as to any

defective appliance or unseaworthy quality of the vessel

(R. 201,348, 364). The Trial Court further permitted the

jury to decide the issue of negligent treatment (Instrue-

tion No. 7, 8, R. 355) and: all other questions in the case.

. There was a verdict: for the Respondent, upon which

judgment was entered. On appeal the judgment was af-—

firmed. by the Supreme Court of Washington (83 Wash.

Dec. 429, 49 Pac. (2) 3, R. 18-24). ;

_ Reasons Relied on for Allowance of Writ.

The rulings of the Supreme Court of the State of Wash-

ington, of which your petitioners complain and which form

the basis for this petition are:

1. In refusing *o allow to the defendants the defense of

assumption of risk in this action under the Jones Act, and

in refusing to hold as a matter of law that Anelich as-

sumed the risk of his injuries;

2. In failing to hold that there was no evidence of negli-

gence on the part of defendants proximately causing the

injury of Anelich;

3. In failing’to hold that defendants were not negligent .

in the treatment and care of the injured man;

4. And in allowing the jury to speculate as to whether

the negligent treatment, if any, of the injured man caused

the blood poisoning resulting in death.

No. 1 presents the question, not yet decided by this Court,

of whether the defense of assumption of-risk is -ever avail-

able in an action by a seaman against the owners or master

of a vessel, when the seaman alleges that his injuries are

due to a defective appliance or to some ‘‘unseaworthy con-

dition’’ of the vessel.

It is conceded that a seaman assumes the adage and

usual risks of his employment under the Jones Act, The

Cricket, 71 F. (2) 261 (C. C. A. 9, 1934); Johnson v.

U. S., 74 F. (2d) 703 (C.-C. A. 2, 1935), as well as under -

the maritime law. The Iroquois, 194 VU. S. 240, 24 R. C. L.

1171. noe R

It is stated by the Supreme Court of Washington, how-

ever, that under neither the maritime law nor the Jones Act

can the defense be asserted if an unseaworthy condition is

allewed as a cause of the injury—that a seaman, no matter

hew willingly and eagerly he uses the appliance, with full

knowledge of its condition and without compulsion,: by

order or otherwise, cannot be said t6 have assumed the

risk of injury therefrom. . }

The decision on this question in actions brought under

the Jones Act, making applicable to seamen all the pro-

visions of the Federal Employers’ Liability Act, has re-

sulted in apparent conflict between the Federal Circuit and °

District Courts. This conflict has never been put at rest

by a decision of this Court.: The majority of the courts -

passing upon tlie question have construed the Act as pro-

viding the seaman with the rights of a railroad employee,

‘and subjecting one who sues thereunder to the same dis-

abilities, including that of being held to assume the ordi-

nary risks inherent in the employment as well as such

extraordinary risks, even though created by his employ-

er’s negligence, as 4re open and obvious or are fully known

to and appreciated by him. Such courts regard the action,

even though defective equipment is alleged, as based upon

negligence in the common law sense, and the common law

» defenses to such an action, except so far as expressly ie-.-

moved by act of Congress, are regarded as applicable.

Southern Railway Co. v. Hermans,.44 F. (2d) 356 (C. C. A.

4, 1930); M. J. McCahan Sugar Etc. Co. v. Stoffel,.41-F.

(2d) 651 (C. C. A. 3, 1930); Hunt v. Hobbs, Wall & Co.,

42 F. (2d) 437 (C. C. A. 9, 1930); The Calvert, 51 F. (2d)

- 494 (C. C. A. 4, 1931); The Richelieu, 48 F. (2d) 497

(C. C. A. 4, 1931); Sterxens v. O’Brien & Co., 62 F. (2d) \

633 (C. C. A. Mass. 1933) ; Peterson v. Sanford Tug Co., 28 \

F. (2d) 283 (D. C., N. Y. 1928); The Ipswich, 46 F. (2d).

136 (D. C., Md. 1930) ; The Zealand, 49 F. (2d) 781 (D. C.,

N. Y. 1931); Russell v. Pere Marquette Ry. Co., 245 Mich.

649, 223 N. W. 230 (1930) Cert. Den. 279 U. S. 864; Patter-

son v. Cleveland Cliffs Iron Co., 27 Ohio App. 316, 174

N. E. 592 (1930) ; McGinn v. North Coast Stevedoring Co.,

149 Wash. 1, 270 Pac. 113 (1928). - 3 )

The Circuit Court for the Second Circuit has announced

in several cases, however, that in an action under the Jones,

Act there can be no assumption by the seaman of risk of

injury from any defective appliance, which might be said

'.to render the vessel unseaworthy. Grant v. U. 8. Ship-

pg Board Emergency Fleet Corp., 22 F. (2d) 488 (C.C. A.

2, 1927); Howarth v. U. 8. etc. :Corp., 24 F. (2d): 374.

(C. C. A. 2, 1928); Ives v. U. §.-etc. Corp., 58 F. (2d) 201

(C. C. A. 2, 1932). ve ;

To the-same effect is Grimberg v. Admiral Oriental §.-S.

Line, 300 Fed.-619 (D. C., Wn. 1924). The conflict between

the Circuits as herein set forth was recognized.in Pitts-

burgh S. 8. Co. v. Palo, 64 F. (2d) 198 (C. C. A. 1933) and ©

the Court approved the. decisions from the Second Cir- |

cuit, as a matter of pure dicta. | val

- The Second Circuit has recently cast doubt upon the

ruling which previously was stated as positive law, and

, .

* « ” » 7 , ~ Sins tz = Srter’

SN Sta a RE

. a o

has indicated that the question here raised is.an open one

even in that jurisdiction. Scheffler v. Moran Towing &

Transport Corp., Inc., 68°F. (2d) 11 (C. C. A. 2, 1933).

At Maritime Law, aside from the Jones Act, assumption

of risk of obvious dangers has been held an available de-

fense, even though such dangers were due to defective ma-

chinery or equipment. The Serapis, 51 Fed. 91 (C. C. A.

4, 1892); The Saratoga, 94 Fed. 221 (C. C. A. 2, 1899);

Cunard Steamship Co. v. Smith, 255 Fed. 846 (C. C. A. 2,

1918); The Maharajah, 40 Fed. 784 (D. C.,-N. Y. 1889);

The Luckenbach, 53 Fed. 662 (D. C., N. Y. 1892); The

Scandinavia, 156 Fed. 403 (D. C., Md. 1907) and see Globe

S. S.Co. v. Moss, 245 Fed. 54 (C. C. A. 6, 1917); Contra,

Storgaard v. France & Canada S. S. Corp.. 263 Fed. 545

(C. C. A. 2, 1920).

A question of first impression in this Court and of vital

importance to every ship owner, and to every seaman,

stevedore, harbor worker and fisherman, is presented by

this case. It is evident that the Circuit Courts-are in con-

flict. That conflict can only be resolved into certainty by

this Court’s decision as to whether under the Act of Con-

gress herein termed the Jones Act, and the Federal Stat-

utes thereby made applicable to seamen, the ‘defense of

assumption of risk is available to the seaman’s employer

to the same extent as it is to a railroad employer. This de-

' fense, and a right given them by act of Congress, has been

denied your petitioners by the Courts of the State of Wash-

ingten (R. 18, 19; Page 290).

It is conceded that a seaman directly ordered to use de-—

fective equipment does not assume the risk of injury there-

from; he has no choice but to obey, or be punished for his

disobedience. Here, however, Anelich was no more under

compulsion than any shore“worker; he was subject to no

disciplinary action for disobedience, and could quit at any

time, with daily opportunity to do so, and receive his

earned share of the catch (R. 326-328). Under such cir-

cumstances, even the Second Circuit would allow the de-

fense of assumption of risk as to open and obvious defects,

though caused by the master’s negligence; all reason for.

any difference between the maritime and common law rules

is removed. Skolar v. Lehigh Valley R. R. Co., 60 F. (2d)

893; Scheffler v. Moran Towing and Transportation Co., °_

68 F. (2d) 11; Johnson v. United States, 74 F. (2d) 703. -

Il.

It was the theory of the plaintiff’s case that the clutch

transmitting power to the winch was so worn out and de-

fective that it would not stay engaged unless the clutch

lever was braced or locked in position by a stick, forked at

one end arid resembling-a boot jack, which hung beside the

winch on & string (R. 240). The argument proceeded that °

because the stick was in place the lever could not be thrown

_in to stop the winch and that by reason of the delay in

stopping the winch Anelich, after-he became entangled in

his line, was pulled into the winch. In support of this

theory evidence was introduced as to the existence of the

stick and the worn condition of the clutch (R. 106, 130, 337).

There was no evidence that the stick was in place on this

occasion. |

Men experienced in marine engineering testified that

the clutch required nothing to keep it in mesh when the

winch was under a load, such as the purse line, as a result

‘of their examination ard actual use of the machine (R. 193,

206, 221). There was further testimony that it was com-

-mon to use such a stick when a winch was to operate

steadily for a considerable time under a light load, as un-

der those conditions such a élutch tends to shake and gradu-

ally slide out of engagement. (R. 209, 240, 291, 298). Fur-

ther, there was positive testimony by the crew that the

stick was not used when the purse line was being hauled

in and that it was‘ not in place at the time of this acci-

' dent (R. 88, 236,296.

On this uncontradicted testimony, what evidence is there

‘on which the jury could find that any negligence on the

part of the defendant contributed to the injury? The

‘stick was not in place, so that is eliminated. The clutch

Was somewhat worn and. the jury might be entitled to find

that under certain circumstances it would eventually dis- —

engage—but on this occasion it did not disengage and Ane- _

lich ‘was injured because the winch continued to turn. The

winch drum revolved at least 90. R. P. M. (R.-223) and

it was stopped almost instantly by the engineer below, who

heard the shouting (R. 191, 236, 295, 308, 312, 315).

_ Only by speculation and guess in the face of direct tes-

__timony could the jury infer that the stick was in place at |

the time of the accident. In its absence there is absolutely -

no evidence of negligence on the part of the defendants

contributing to the injury, and under the rule as laid down

_ by this Court in Northwestern Ry. Co. v. Page, 274 U.S. .-

65; Toledo, St. L. d W. R. R. v. Allen, 276 U. S. 165; and ©

N. Y. Cent. R. Co. v. Ambrose, 280 U. S. 486, the vordiet

cannot be sustained.

II.

At the trial and on appeal the Petitioners contended

‘ that there was no evidence that they were negligent in

their treatment of the wounded man or in the course of

conduct followed in securing medical attention for him.

These are duties imposed by the maritime law on every

‘master and owner of a vessel, and is governed by the law .

as laid down by this Court in The Iroquois, 194 U. S. 240.

Failure to carry out these duties constitutes negligence, as

that term is used in the Jones Act. Cortes v. Baltimore

Insular Lines, 287 U. 8. 367. |

The undisputed evidence, in short, showed that Anelich |

was immediately transferred to the fastest boat available

(R. 82); and made as comfortable: as possible (R. 275

and reached competent medical treatment within two -

hours after the accident, at least an hour before he. could

have reached such attention had the master of the vessel

, adopted.any of the other courses suggested by counsel for

the plaintiff. At the first possible moment telephone con-

versation was had with the Coast Guard (R. 254), the

usual means of transporting injured seaman (R. 24), and |

by that means Anelieh was taken to the hospital in Seattle.

It appeared clearly that when medical attention to. halt

bleeding and infection has been given ‘to such a wound, it

is necessary to allow the patient to rest for a consider-

able period to recover from shock, and that that was done

_. In this cd4se; when he reached the Maritfe Hospital in

Seattle nothing of an operative measure was done until |

- the following morning (R. 160, 165). . oo .

The Master and crew of the ‘‘Arizona’’-made no effort .

to cleanse or repair the wound other than.to apply a

tourniquet to halt bleeding. Had they: done so, without

having special training and with only a small first aid kit,

+ it appeared that the likelihood of infection and of greater

shock would have been increased (R. 269, 271, 274, 260, 265).

Evidence was admitted over objection as to other pos-

sible ports to which he might have been taken, all of which.

were further away than Friday Harbor, and as to the

available airplane service at Seattle (R. 168). By the use

__ of the latter Anelich might. have reached the. Marine Hos-

pital within three or four hours after the accident, but his

immediate need was competent medical ‘attention to his

wound, to halt bleeding and infection, and this would have —

been delayed by following such a course. . °

Delayed medical treatment and primitive first-aid meth-

ods are among the risks a seaman assumes. Clearly the

duty the State Court permitted the jury to impose upon

the defendants far exceeded that imposed by the Maritime

Law as defined by this Court in The Iroquois, 194 U. S. 240,

of reasonable care and judgment on the part of the master

of the vessel under the circumstances. There were other

courses of conduct which the defendants might have fol-

lowed; but only the exercise of reasonable judgment is re-

quired, and to hold fishermen on a small boat to a duty as

high as that required of the master of a large vessel,

trained in first aid and with wireless communication with

the shore, is at variance.with the law as above stated.

IV.

It has been at all times contended that even if it be as-

sumed that the fishermen should have attempted to cleanse

and repair such a wound, or should have known of and

called airplane service, yet there is no evidence that the

treatment actually given was a proximate cause of the sep-

ticemia resulting in death. To charge such results to such

treatment is purely speculative and under the law laid.

down by this Court, a jury’s verdict may not rest upon con-

jecture and speculation. Chicago, Milwaukee & St. P. Ry.

v. Coogan, 271 U. S. 472, 478; N. Y. Cent. R. Co. v. Am-

brose, 280 U: S. 486.

- The testimony of each of the four doctors who testified

wag that in his opinion the organisms which resulted in

septicemia causing death entered the wound at the time of

the*original injury (R. 160, 162, 165, 262, 267, 270, 273).

It.is undisputed that from such a wound it is extremely

likely that septicemia will result under the best of treat-

ment—that septicemia was the most probable result of the

injury Anelich received, even if he had been hospitalized

immediately (R. 267, 269). . The case is very similar to

that of Cortes v. Baltimore Insular Line, 66 F. (2d) 526

(C. C’ A. 2, 1933) in which it was held that in absence of

evidence showing with reasonable certainty that defend-

ants’ neglect caused the seaman’s death, the jury could not

return a verdict against the defendants.

_ There was no evidence on which the jury could do other

than speculate as to whether negligent treatment, if any,

was the proximate cause of septicemia, as it appeared that

with the best imaginable treatment, the chances were that.

septicemia would' result from such a wound. To allow a

verdict to rest upon speculation and conjecture of this

character is at variance with the law as laid dewn in Chi-

cago, Milwaukee & St. P: Ru. v. Coogam, 271 U. §. 472, 478

and other cases cited supra, and with the well-reasoned de-__-.

cision of the Second Circuit‘in Cortes v. Baltimore Insular

Tine, 66 F. (2d) 526. 3

By the verdict based on the rulings of the state court,

the defendants are charged with responsibility for a man’s -

death from blood poisoning because ‘of alleged negligent

treatment, when it clearly appears that in all probability

_ blood poisoning was the inevitable result of a wound of

this character, regardless of treatment or hospitalization. :

The jury is allowed to speculate in the face of alli the medi-

cal testimony and to find that had different treatment been

given. blood poisoning would not have resulted, without any

evidence whatsoever upon which to base that finding.

Wuererore petitioners pray that a writ of certiorari be -

‘issued out of and under the seal of. this Court, directed to

the Supreme Court of the State of Washington, command-

‘ing said Court to send to this Court, on a day certain to.

be therein designated, a full and complete transcript of

record of all its proceedings in said cause, to the end that

the cause may be reviewed and determined by this Court,

as provided by law, and that the judgment of the Supreme

Court of the State of Washington’ in this cause may be

reversed by this Court.

THe ‘‘ARIZONA”’,

AnTONE MARDESICH AND WIFE,

Peter. MarpEsIcH AND WIFE,

GeneraL Casuatty Co. or AMERICA,

By Raupx S. Pierce,

7? Cownsel for Petitioners.

Epwin-J. Cummins,

Gorpon H. Sweany,

Of Counsel.

SUPREME COURT OF THE UNITED STATES —

OCTOBER TERM, 1935 |

‘No. 667

Tue ‘‘ARIZONA”’; ANTONE MARDESICH anp JANE”

DOE MARDESICH, His Wirz; PETER MARDESICH

anpD JANKE DOK MARDESICH, His Wire; anp GEN-

ERAL CASUALTY CO. nisl AMERICA,

Petitioners,

° VS: , ;

- ANTONIA ANELICH, as Apministraterx or THE Estate

oF Mario AngEticu, Decrasep.

BRIEF IN SUPPORT OF PETITION.

Opinion of Court Below.

Supreme Court of the State of Washington: Anelich

v. The Arizona et al., 49 Pac. Rep. (28) 3 ¢(R. 18-24). .

Basis of Jurisdiction.

The date of judgment of the Supreme Court of the State

of Washington sought to be reviewed i is — 25, 1935

(R. 25). | :

‘ The abbot is one in which elite are diniad by the re-

s ‘spondent, plaintiff in the. court below, under the Jones, or

the Merchant Marine Act (41 Stat. 1007; 48 U. S. C. A.

688). In the trial court, petitioners by motion for non-suit

at the close of the plaintiff’s case (R. 200) and by

motion for directed verdict at the close of all the evidence

-in the case (R. 348-351), and by motion for judgment not-

withstanding the verdict (R. 13), asked for judgment in

their favor upon the ground that under the provisions of

.the Jones Act, and the Federal statutes by it made appli-

cable to injured seamen, as construed in Seaboard Air Line

v. Horton, 233 U. S. 492; Delaware, etc., R. R. v. Koske, 279

U. S. 70, the plaintiff’s decedent assumed the risk of injury

as the injury resulted from an open, obvious hazard, inci-

_. dental to his employment; and upon the further ground

that in this action there was no proof of negligence on the

' part of the defendants proximately causing the injury to

plaintiff’s decedent, and that a verdict may not rest upon

conjecture and speculation, under Chicago, M. & St. P. Ry.

v. Coogan, 271 U. S. 472; Northwestern Ry. Co. v. Page;

274 U. S. 65; Toledo, St. L..€ W. Ry. v. Allen, 276 U. S.

165; N. ¥. Cent. R. Co. v. Ambrose, 280 U. S. 486; and upon

the taste ground that under said act and under the mari-

time law as laid down in The Iroquois, 194 U. S. 240, there

was no proof of negligence in the treatment and care af-

forded the injured man following his injury; and upon the

further ground that the verdict that the septicemia .or

blood poisoning resulting in death was proximately caused

by the negligent treatment, if any, of. the injured ‘man

-rested only upon guess and speculation in the face of all

the medical testimony, and hence cannot be sustained, upon

the authority of Chicago, M. é St. P. Ry. v. Coogan, and

the other cases cited, supra.

These motions—were overruled. The “instruction re-

quested by the defendants upon the question of assumption

of risk (R. 12) was refused. Judgment was enteréd in

the trial court against Petitioners (R. 15). This judg-

ment -was affirmed by the Supreme Court of the State of

Washington (R. 18-24). Thereafter petition for rehear-

ing was denied (R. 25) and judgment of the Supreme Court

of the State of Washington entered October 25, 1935 (R.

25). :

Statement of the Case.

Mario Anelich asked for and received employment from

Antone Mardesich in the spring of 1933 as fisherman on the

latter’s purse seine fishing vessel *‘Arizona’’ for the com-

ing fishing season (R. 318). Peter Mardesich, the son of the

owner, was master of the vessel. Anelich was an experi-

enced fisherman, had followed that work for many years,

and had owried his own boat (R. 77, 78, 234, 306, 318).

The fishing was on shares, each man receiving one share,

and the boat and net four (R. 233-234).

About June 27, 1933, fishing operations began (R. 234).

Each member of the crew of eight was assigned definite__

duties, and Anelich was assigned to tend the rear witch, as

he had tended the winch on the boat where he had worked

the year before and was an experiénced winchman (R. 234,

306). Anelich worked on the rear winch throughout the

season until he was injured,.and the operation of casting

out the net, pursing it and drawing it in with the winch

_ (making a ‘‘set’’) had been performed about 150 times

-prior to his injury. The operation was always made in the .

same way (R. 234-235, 293, 307).

As winchman, Mr. Anelich was in charge of the rear

drum of the double winch and of the purse line which was’

hauled in by it; George Brajeich-was in charge of the other

_ purse line on the forward drum. The line was taken: sev-

.eral turns around the drum, and as the drum. revolved the .

-winchman created friction by pulling on the free end of the

| 18

line. As the line came in he coiled it behind him. The pull-

ing in of the lines pulled the bottom of the net together, and

formed a sack. or purse, enclosing the fish. When the net

was pursed and had been brought to the surface, the weight

of the net was taken on block and tackle from the boom or

derrick (R. 56, 230, 294) and it was then the duty of the -

winchman to clear his respective purse line away from the

drum of the winch and from the blocks on the davit on the

side of the vessel, so that the net could be lifted above the

deck. Throughout this operation the winchmen were in-

complete control of their respective purselines; no one

handled the line on the rear.drum of. the winch except.

Anelich (R. 235, 295, 309). _ | ;

The accident occurred on August 1, 1933, at about 8:30

A. M., while the ‘‘Arizona’’ was fishing along the east side

of San Juan Island in Puget Sound, just after the weight

of the net had been taken from the purse lines onto the boom _

(R. 81, 252, Pe His shout of pain was the first intima-

tion that any of the crew near him had that anything was -

wrong. Thawinch was halted immediately by the engineer

below, who was warned by the shouts of Anelich and the

other members of the crew (R. 80, 188, 307, 308; 312, 315).

George Brajcich, who handled the forward drum and purse

line, seized an axe and cut the aft line, freeing Anelich, who

had been caught by the left leg, and then put a tourniquet

‘around his leg above the knee (R. 294-295). He was then

. transferred to another vessel, the ‘‘Congress’’ by a skiff, as

the ‘‘Arizona’’ was completely surrounded by her nets and

corks and could neither move nor allow another boat to

conie alongside without danger of fouling propellors in the.

nets and disabling one or both vessels (R. 50, 237, 316).

‘The ‘‘Congress’’ was directed to take him to Friday Har-

bor, on the other side of the island, to the nearest doctor at

once, As the ‘‘Congress”’ startedde pull away, a fish buyer,

«&

the ‘‘ Excel II,’’ was seen and as it was a much faster: boat

(R. 253), Peter Mardesich directed that the injured man

be put on board her and taken to the nearest doctor (R.

82, 254, 317). Then the crew of another ship aided those

of the ‘‘Arizona”’ to lift her net and. the ‘‘Arizona’’ fol-

lowed at top speed to Friday Harbor (R. 238). |

Aboard. the ‘‘Excel II’? was Lee Mackovich, head buyer

of the Packing Corporation. He jumped upon a float as

" ” the vessel passed Mitchell Bay, about fifteen minutes run ~

from the scene of the accident, directed the captain to pro-

ceed at top speed to Friday Harbor, went ashore and —

-.-welked the necessary quarter of a mile to the nearest tele-

phone. He called the Everett office of his company, on the -

“mainland and directed Morris at that office to call the Coast

Guard and have the Coast Guard cutter pick up the injured

man at Friday Harbor (R. 254). That call was completed

at 9:40 A. M., standard time. The accident had happened -

at about 8:30 A. M. At ten o’clock the call was completed ©

.. to the Coast Guard at Port Townsend: (R. 290), and the

Coast Guard was notified that an injured man from a fish-

‘ing vessel should be picked up and transported to Seattle

to the Marine Hospital at once (R. 289, 322, 323). :

At about 10:30 the “Excel IY” arrived in Friday Harbor |

and Dr. Sturdevant was called. He examined the wound, .

cutting away the: trouser leg and exposing it for the first

time and then bandaged it hastily and transported the in- . -

jured man to his office where he did the necessary work of

cutting away the dead tissues, sewing up torn muscles and

- the skin, and bandaging the wound (R. 260). He made no

effort to set the broken bone. :

- Meanwhile the “Arizona” had arrived in Friday Harbor.

The officers and crew had been assured both at Mitchell.

” Bay and at Friday Harbor that the Coast Guard was on its

way to pick up the injured man (R. 288), and that the eutter

bio

would arrive at noon. When the cutter did not arrive,

Peter Mardesich called again at 12:55 o’clock standard

time, and Dr. Sturdevant made a third call at 1:08 o’clock

(R. 280). In response to these calls the Coast Guard

picked up Mr.*Anelich at 5:00 P. M., and he was taken

ashore at the Marine Hospital in Seattle at 10:45 that eve-

ning. He was placed in bed and no operative measures of

any kind were taken until nine o’clock the next morning

. (R. 160, 165). Two or three days later ‘*ystemic infection

developed (R. 154). But for the development of septi-

cemia, or blood poigening, he would have recovered and

had a fairly walkable leg (R. 158).. Because of it, how-

ever, his £ondition grew steadily worse and on August 8,

1933, a week after the accident, he died. .

The winch in question was located about midship, and on

{fe starboard side of the winch, between the two _drums,

was a lever by which the clutch of the winch was engaged

and disengaged from the main drive shaft._ The winchmen

stood on the starboard side of the winch, Brajeich slightly

forward and Anelich’ slightly aft of the winch (R. 55, 86).

Attached to the winch by a string hung a forked stick, de-

signed to be placed behind the clutch handle to hold it out,

in engagement, when the winch was to be used for some ©

little time in stormy weather or without a heavy load (R.

209, 240, 291, 298); it was never used when there was a

load, such as the purse’line, on the winch and it was not m

place on the day in question, according to the testimony of

the members of the. crew (R. 88, 236, 296). The clutch

consisted merely of two square jaws, one of which slid into

mesh with the other, and if run for a time without a load,

. would naturally tend to shake apart and disengage. The

evidence as to the condition of the clutch was in conflict; .

considerable testimony was given as to its worn condition,

which plaintiff contended would not allow the winch to

aperate without some means of actually holding it in en-

gagement (R. 106, 130, 337). The members of the‘crew, as

well as mechanics who had examined and tested the clutch,

testified that nothing was used or needed to keep the clutch

- ‘in gear while the winch was loaded (R. 236, 296, 193, 206,

221, 291, 88), and that the clutch; while not a-new one, was:

in good working condition (R. 193, 206, 221).

‘Such are the material facts of the case. ;

The pleadings and the rulings of the courts on the trial

and appeal of the case are set forth in the petition under

heading ‘‘A’’, and in the interest of -brevity will not be

repeated here.

Specifications of Error.

1. The Supreme Court of Washington erred in holding

that the defense of assumption of risk was not available to

the defendants in this action.

2. The Supreme Court of Washington erred in failing

and refusing to hold that there was insufficient evidence of

negligence proximately causing Anelich’s injury to sustain

the verdict of the jury.

3. The Supreme Court of Washington erred in failing

and refusing to hold that there was insufficient evidence of -

negligent care and treatment to sustain the jury’s verdict.

4. The Supreme Court of Washington erred in failing

and refusing to hold that.there was no evidence upon which

the jury conid find that the riegligent care and treatment, if

any, was the proximate cause of the disease causing the

death of Anelich.

Argument.

A. The decision below, holding that assumption of risk

is not available to the defendants in this action, decides an

important question of maritime and -Federal law, not yet. 3

decided by this Court, in a way contrary to and in conflict :

with the great ‘macale of prior Federal and State deci-

sions and relies only upon cases from the Second Circuit,

which state a conflicting, questioned and minority rule. °

B. The desbidon below is contrary to and in conflict with

prior Federal and State decisions in allowing the jury to .

guess and speculate, and to return a verdict against the —

defendants based upon such conjecture, without substantial

proof of negligence on their part,

1. Contributing proximately - the original — "| ;

fered by Anelich,

2. In the care aa treatment afforded the injured man, or

3. Contributing pr oximately ‘to saa septicemia ultimately

causing his death.

Further, that the decision’ holds the defendants to a

higher degree of care and. skill in their treatment of the

injured man than that required by the maritime law stated

by this Court’ in The Iroquois, 194 U. S. 220, and by other: ‘

‘Federal Decisions.

A. ‘

_ The statute under which this action is brought, herein

_ referred to-as the Jones Act, is as follows:

‘¢ Any seaman who shall suffer personal injury in the

course of his employment may, at his election, main-

tain an action for damages at law, with the right of

. trial by jury, and in such action all statutes of the

United States modifying or extending the common law

right or remedy in cases of personal i injury to railway

employees, shall apply; and in case of the death of any .

_ seaman as the result of any such personal injury, the

personal representative of such seaman may maintain ~

cate eect cian ee ra ican er eae aided

e¢ 93 in

an action for a at law with the right of trial by

jury, and in such action all statutes of the United States

conferring or regulating the right of action for death

in the case of railway employees shall be applicable.

* *. * (41 Stat. 1007, 48 U.S. C. A. 688. )

The statutes referred to by the Jones Act as made ap-

plicable to the seamen are the relevant portions of the.

Federal Employers’ Liability Act (35 Stat. 65; 45 U.S. C.

A. 51-59) which provide, in short, that an employee of a

common carrier by railroad may recover damages, or in

gase of his death his personal representative may recover

damages, for injuries. or death resulting in whole or in

part fromi the negligence of any of the employees of such

common carrier or by reason of any defect ¢ or insufficiency

due to the neglect of the employer in its equipment; that

the contributory negligence of the employee shall not bar

recovery but shall dimiriish the amount of the recovery in

the proportion to the amount of. negligence attributable to

the employee; that the employee shall not be held to have

assumed the risk where violation by the employer of a

safety statute contributed to the injury; and that the de-

fense of fellow servant cannot be available to the master.

This Court has construed the Federal Employers’ Lia-

bility Act as abolishing the defense of assumption of risk

only when a Federal safety statute has been violated, and in

all other cases the defense exists as at common law. Sea-

board Air Lme v. Horton, 233 U. 8. 492; Jacobs v. Southern

Railroad Company, 241 U. S. 229; Delaware Etc., Co. v.

Koske, 279 U. 8. 7; Northwestern Pacific Ry. Co. v. Bobo,

290 U.S. 499. The law as stated in the Seaboard Air Lie

Case-i is as follows;

‘**Some Seihisinents are necessarily fraught with

danger to the workman; danger that must be and is

confronted in the line of his duty. Such dangers as are

normally and necessarily incident to the occupation are

‘

Oe . 7 2

~ .

« : » ‘

presumably taken into account in fixing the rate of

wages, and a workman of mature years is taken to

assume risks of this sort, whether he is actually aware

of themvr not. But risks of another sort, not naturally

incident to the occupation, may arise out of the failure

of the employer to exercise due care with respect to

providing a safe place to work and suitable and safe

appliances for the work. These the employee is not

treated as assuming until he becomes aware of the de- a

fect or disrepair and of the risk artsing from it, unless ° |

defect and risk alike are so obvious that an ordinarily *

prudent person under the circumstances would have -

observed and appreciated them.’’ (Italics ours.)

This Court has never had before it the question here pre-

sented, as to whether or not the law as stated in the cases

just referred to applies to seamen in an action brought

under the Jones Act against his employer. The court below

held that neither at maritime law prior to the Jones Act,

~ nor under the Jones Act, did the seaman assume the latter

type of risk referred to ‘in the Seaboard case and under-

lined by us. It is our contention that on both points the

Supreme Court of Washington was in error.

This Court has had the Jones Act under discussion upon

several occasions, but in none of these decisions is there

any indication that the defense does not apply with equal —

force to seamen and shore workers alike. |

The first case involving the Act was Panama Railway Co.

v. Johnson, 264 U. S. 375, in which the constitutionality of

the Act was passed upon and in which it was said that the

“statute brought into maritime law new fules drawn from

the common law as modified by the Federal Employers’

Liability Act. This language is carried on in Engel v.

Davenport, 271 U. S. 33, in which it was said that the action

under the Jones Act is based upon negligence and the fol-

lowing language was used:

‘“‘Here the. complaint contains an affirmative aver-

ment of negligence in respect to the appliance, and,

having been brought,after the passage of the Merchant -

Marine Act, we think the suit is to be regarded as one

founded on that act, in which the petitioner, instead of

invoking, as he might, the relief accorded to him by the

old Maritime rules, has elected to seek that provided

by the new rules in an action at law based upon negli-

_ gence—in which he not only assumes the burden of

proving negligence: but. also, under Section 3 of the

Employers’ Liability Act, subjects himself to a reduc-

tion of damages in proportion to any contributory negli-

gence on his part.’’ 1%. Aees.

If the seaman must assume the burden of proving negli-.

gence, and must under Section 3 of the Employers’. Lia-

bility Act subject himself to a reduction of damages in pro- |

portion to any contributory negligence ori his part, there _&

seems 110 reason why under Section 4 of the Employers’

Liability Act. he would not be held to have assumed the

risk to the same extent and under the same circumstances

-as would a railroad employee. In an action based upon

negligence in this, common law sense, any question of un-

seaworthiness, as that term is used in the maritime law, ‘

seems unnecessary, as the common law defenses should

_ be applicable except as modified by statute. . = -..—— ~

_ In its opinion the Court below makes reference to The

Osceola, 189 U. S. 158, as supporting its statement as to the

general maritime law. In The Osceola were stated certain '

definite propositions of maritime law which could be re-

garded as settled, but the.Court did.not undertake to state

all the principles of maritime law governing personal in-

juries to seamen. Contributory. negligence has always been

regarded in admiralty as a defense, in part, at least, (The

Maz Morris, 137 U. S. 1) yet there is no mention of it in ©

The Osceola. Assumption of risk is regarded as peculiarly -

applicable to seamen, in The Iroquois, 194 U. S. 240, and

‘ ie, Tae

“ eer: a . axepie me — m en 7 ee wees Mor ae Py PTR EE SOOO age «a

Shoe ae feahA Mrahe erection re RMU EER BE EN We NBA Sn 2 * . S 71 ‘

Biter: Fo Poe : leit TS ee 2

there is likewise no mention of it in The Osceola. The

language used by this Court is clear cut and definite and

should not be construed as an attempt to cover the whole

_ field of maritime torts in four short propositions.

_ Moreover, this is a situation in which The Osceola is not

applicable. That decision was dealing solely with the rights

- of an injured seaman;-and by the admiralty law his per-

sonal-representatives, upon his death, had no cause of action

-against the master of the-vessel. The cause of action which

the seaman had, based upon unseaworthiness, died with

him. The Jones Act gave to the seaman and to his personal

representative in case of his death, a right of action for

negligence, and it is upon that breach of duty, rather than -

upon unseaworthiness as defined in The Osceola, that this

action must be predicated. As was said hy this Court in

— v. U. S., 281 U. S. 38, 47: =

‘“*Nor can the libel-be sustained as one to recover in-

. demnity for Barford’s death under the old maritime

rules on the ground that the injuries’were occasioned

by the unseaworthiness of the vessel. Aside from the

fact that the libel does not allege the unseaworthiness

‘ of the vessel and is based upon negligence alone, an

insuperable objection to this suggestion is that the

. prior maritime law, as hereinabove stated, gave-no

right to’recover indemnity for the death of a seaman,

although occasioned by’ unseaworthiness of the vessel.

The-statement in The Osceola, supra, 175 on which the

‘administrator relies, relates only to the seaman’s own

right to recover for personal injuries occasioned by

unseaworthiness of the vessel, and confers no right

whatever upon his personal representatives to reeover

indemnity for his death. Apparently for this reason

the words ‘at his election,’—which appear in the first

clause of Sec. 33 of the Merchant Marine Act, relating -

to the personal right of action of an injured seaman

and; as held in Pacific Co. v. Peterson, supra, 139, gave

him, as-alternative measures of relief, ‘an election be--

ie ‘ .

“ a ‘

OGRE OI NIG Mele Se RENE ARI EN TORRE RINT ET TIER

: ie

tween the right under the new rules to recover compen-

satory damages for injuries caused by negligence, and

the right under the old rules to recover indemnity for

injuries occasioned by unseaworthiness’—were omitted

from the second clause of Sec. 33 of the Merchant

Marine Act, relating to the right of the personal repre-

sentative to recover damages for the seaman’s deaths

since there was no right to indemnity under the prior

maritime law which he might have elected to pursue.

And for the reasons already stated, and in the absence

of any right of election, the right given the personal

representative by the second clause of Sec. 33 to re- _

cover damages for the seaman’s death when caused by

negligence, for and on behalf of designated benefici-

aries, is necessarily exclusive and precludes the right

' of recovery of indemnity for his death by reason of

unseaworthiness of the vessel, irrespective of negli-

gence, which cannot be eked out by resort to thé death’

statute of the State in which the injury was received’

The right which the respondent here asserts, then, # not

one which she would have had prior to the Jones, Act, by

the maritime law, but is one which is asserted solely and

exclusively by virtue of that enactment. The Osceola, as

is pointed out, supra, is not authority for the proposition

for which it is cited, and is not here applicable..

The most recent case in which this statute was before

this Court for discussion is Warner’ v. Goltra, decided

Nov. 5, 1934 (— U. S. —, 55 Sup. Ct. 46, 79 L. Ed. 8). It

is there said:

‘*It (referring to the statute) gives to ‘any seaman’

injured in the course of his employment, and in case of

the death of the seaman, to his personal representa-

tives, a.cause of action similar to that given by the

statutes of the United States to railroad employees.*’

It is submitted” that the decisions of this Court, insofar

as they have indicated the position of the Court upon the

question now raised, reflect the opinion that the Act draws

’

ace Sa a Ft}

ee a ' 23

from the common law the ‘ules as embodied in the Federal

Employers’ Liability Act and the judicial construction

placed upon it, and thai ail of these rules are thereby made

a part of the maritime law, to be ‘taken advantage of by ©

seamen to the same extent, and under the same conditions,

as railroad employees.

- - It is conceded by the court below and by seonsiaiad that

assumption of risk is as to some accidents,. at least, an

available defense, both under the maritime law and the .

Jones Act. In The Iroquois, 194 U. S. 240, involving a sea-

man falling from aloft while trimming a sail, this Court-

~ stated the law as follows:

‘‘A seafaring lifé is a dangerous one, accidents of

this kind are peculiarly liable to happen, and the gen-

eral principle of law that a person ‘entering a danger-

ous employment is regarded as assuming the risks, is

poouanhy, applicable to the case of seamen.’

See also 24 R. C. L. ‘Ti71. “And there i is no conflict j in 1 the

eases but thatthe ordinary risks-usual in his employment

are assumed. The Cricket,71 F. (2d) 261; Johnson v. U. 8.,:

_ 74 F. (2d) 703..

_. What risk could be more incidental and usual in the em-

- ployment of a winch tender than that of becoming entangled

in the line, which he alone handles, and being drawn into

the winch? He knew, appreciated, and assumed thesrisks -

of slipping on the wet deck, or of becoming entangled in

the line if it kinked or twisted {R. 312). ‘It. was the

theory of the plaintiff’s case that the clutch on the winch

was worn out and would not stay in gear, requiring the

use of a stick to hold the clutch lever in place; and that by

reason of the presence of this stick, the lever could not be

thrown out and the clutch disengaged, stopping the winch,

in time to avoid the injury (R. 202). Assuming that

the jury was entitled to find that the stick was in place at

fhe time of the accident and that the use of it rendered the

winch defective, yet Anelich was an experienced fisherman

and winch tender. (R.°234, 306); his post, at the time the

purse line was coming ip and while*the net was being raised,

was within two or three feet of the clutch lever and the |

stick, if any, bracing it (R. 54, 86); the same operation had

been performed one hundred and fifty times (R. 235, 293)..-

The lever was under the joint control of himself and

Brajeich, the other ‘winch tender (R. 293, 295). If the stick

was in place, he must have known that fact. and further,

must have realized the danger, if any, attendant upon its

use. The condition was open and obvious, and brought

home closer to Anelich, because of his position as winch —

man, than to anyone else of the vessel except, perhaps, the

other winchman, Brajcich.. Knowledge and appreciation of

obvious dangers, which any prudent man would realize, will

be presumed (Northwestern Ry. Co. v. Bobo, 290 U. 8. 499.)

The testimony showed that the first that any of the crew

knew of the accident was the decedent’s cry of pain (R. 80,

188, 307, 308, 312, 315); the duty of looking out for his

safety necessarily rested with himself, as it does with men

in every occupation where machinery is involve 1, and to

the same extent. <5

It is conceded by petitioners: that a seaman, being hound

to obey the master’s orders or suffer punishment for re-

fusal, does not assume the risk of ‘dangerous work which

he undertakes at the master’s command, or the risk of in- -

juries from defective equipment which he is ordered-to use

by his superiors; he has no choice but to obey and under

such circumstances there can be no voluntary assumption.

of risk. This is merely an application, however, of the com--

. Mon law rule that the assumption of risk of the master’s

negligence must bé a voluntary act by the servant with

knowledge, actual or constructive, of: “possible. cmper. An

——_—_

employee ‘‘is not bound to accept his own judgment, at his

peril, above that of his superiors.’’ 4 Labatt, Master and |

Servant, 2nd Edition, P. 3935; Panama Ry. Co. v. Johnson,

289 Fed. 964 (C. C. A. 2, 1923). The common law rule is

extended in maritime situations only to the extent that the

seaman’s duty to obey is greater and more impelling than:

- js the duty on a shore employee. Holm v. City Service

Transport Co., 60 F, (2d) 721, (C. C. A. 2, 1932).

_ Under the nmritime law, then, assumption of risk: of

- obvious and‘open dangers has always been held an avail-

able defense to the master or owner of the vessel, unless °

it is shown that the seaman did not voluntarily ‘assume

the risk but was ordered to use the appliance or equip-

ment which proved defective. The Serapis, 51 Fed. 91

(C. C. A. 4, 1892) The Saratoga, 94 Fed. 221 (C. C. A. 2,

1899) ; Cunard S. 8. Co. v. Smith, 255 Fed. 846 (0. C. A. 2,

1918); The Maharajah, 40 Fed. 784 (D. C., N. Y, 1889);

The Luckenbach, 53 Fed. 652 (D. C., N. Y. 1892); The

Scandinavia, 156 Fed. 403 (D. C., Md. 1907) and See Globe

- Steamship Co. v. Moss, 245 Fed. 54 (C. C. A. 6, 1917). In

fact,-as was said by the Washington Court in McPherson

_.v. Twin Harbor Stevedoring & Towing Co., 139 Wash. 61,

245 Pac. 747, (1926) :

“The fact is that the rule of liability in admiralty

and common law is the same with reference to a safe

place to work and the assumption of risk.’’

Prior to the Jones Act also it was held that when acting in |

obedience to a direct order, a seaman does not assume the

‘risk of any defective condition in equipment. LaFourche

Packet Co. v. Henderson, 94 Fed. 871 (C. €. A. 5, 1899);

The Colusa, 248 Fed. 21 (C. C. A. 9, 1918); Cricket S. 8:

- Co. v. Parry, 263 Fed. 523 (C. C. A. 2, 1930). “Eldridge v.

Atlas 8. S. Co., 134 N. Y. 187, 32 N. E. 66 (1892).

Since the passage of the Jones Act, the majority of the

courts passing on the question have applied the common

law defense of assumption of risk to actions brought by

seamen for injuries received from defective appliances or

._poor working conditions. Southern Ry. Co. v. Hermans,

44 F..(2d) 356 (C. C. A. 4, 1930); M. J. McCahan Suger,

etc., Co. v. Stoffel, 41 F..(2d) 651 (C. C. A: 3, 1930); The

- Calvert, 51 F. (2d) 494 (C. C. A. 4, 1931); The Richelieu,

48 F. (2d) 497 (C. C. A. 4, 1931); Stevens v. O’Brien &

Co., 62 F..(2d) 633 (C. C. A. Mass. 1933); Peterson v.

. Sanford Tug Co., 28 F. (2d) 283 (D. C:, N. Y. 1928); The

Ipswich, 46 F. (2d) 136 (D. C., Md. 1930); The Zealand, 49

F. (2d) 781 (D. C., N. ¥. 1931); Russell v. Marquette Ry.

Co., 245 Mich. 649, 223 N. W. 230 (1930) Cert. Den. 979 U.S.

864; Patterson v.. Ceveland Cliffs Tron Co., 27 Ohio App.

316, 174 N. E. 592 (1930).

Typical of these decisions are the following aneeepts'

(Referring to the Jones and Liability Acts:) ‘‘The

Supreme Court has held that Congress, by eliminating .

the defense of assumption of risk in the cases indi-

cated, quite plainly intended that in all other cases

such assumption should have its former effect as a

complete bar to. the action. Seaboard Air Line Ry. v.

Horton, 233 U. S. 492, 508. There is no claim in this

case of violation of apy statute and hence the ordi-

nary common law rule must be given_effect. In the

cited case the Supreme Court defined the rule and held.

that it applied in cases under the Federal Employers’

Liability Act, even though the master had been guilty

of negligence.’’ Southern Ry. Co. -v. Hermans, 44 F,

(2d) 366.

**It is, of course, the law that the employer exercise

_due care to furnish a safe place to work and that a

breach of this duty ordinarily gives the injured em-

ployee a right of action, but it is equally the law, laid

down by the Supreme Court of the United. States, that

if the employer neglects this duty and the defect and

risk involved in that neglect are obvious to an. ordi-

narily prudent person under the circumstances, and

would be observed and appreciated by such person, he

assumes the risk, even though it flows from the neg-

ject of duty. * * * He was not acting under the

compulsion of an order from a superior officer, which,

under some circumstances, prevents the application of

the doctrine of assumption of risk.’’ The Ipswich, 46

F, (2d) 136.

If, however, the seaman is ordered to use the appliance

it has been held under the Jones Act, as it was prior to

that enactment, that-he does not assume the risk. Panama |

v. Us 8..etCorp. 10 F. (2d) 47 (CC. A. 2, 1925) ; Coast

_S. S. Co. v. Brady, 8 F. (2d) 16-(C. C. A. 5, 1925); U. 8.

etc. Corp. v. O’Shea, 5 F. (2d) 123 (App. D. C. 1925);

Masjulis -v. U. S. etc. Corp. 31 F. (2d) 284 (C. C. A. 2,

1929); U. S. v. Boykin, 49 F. (2d) 762 (C. C. A. 5, 1931);

Hanson v. Luckenbach S. 8. Co., 65 F. (2d) 467 (C. C. A. 2,

1933); Johnson vy. U. S., 7 F. Sup. 133 (D. C.. N. Y. 1934);

The Mangore, 1 Fed. Sup. 138 (D. C., Md. 1932) ; Lejune v.

General Pet. Corp., 72 Cal. App. Dee. 50, 18 Pac. (2d) 429

(1932); States S. S. Co. v. Berglann, 41 F. (2d) 456 (Cert.

Den. 282 U. S. 868; C. C. A. 9, 1930).

It must be noted that in many of the cases just cited

there is a broad statement to the effect that risks of un-

seaworthiness or of defective appliances cannot be as-

sumed by a seaman; the facts in each case show that the .

the cases it is recognized that the controlling factor, in hold-

ing that the defense does not apply, is the coercion or com-

pelling force upon the seaman by the command, removing

all possibility of voluntary assumption of risk.

As opposed to these cases are the following: Grimberg v.

Admiral Oriental S. S. Line, 300 Fed. 619. (D.C. Wn. 1924) ;

- 33

Pittsburgh. S. S. Co. v. Palo, 64 F. (2d) 198 (C. C. A. 3,

1933) ; Storgaard v. France & Canada S: S. Co., 263 Fed.

545 (C. C. A. 2, 1920); Grant v. U. S. etc. Corp., 22 Fe

(2d) 488 (C.-C. A. 2, 1927); Howarth v. U. S. etc. Corp.,

24 F. (2d) 374 (C. C. A. 2, 1928) ; and Ives v. U. S., 58 F.

(2d) 201 (C. C. A. 2, 1932).

The Grant case is indicative of these decisions. Quoting:

‘‘In respect to the defense of assumption of risk, no

more need be said than that a ship-owner cannot

avoid liability for injuries to a seaman by a defective |

appliance on the grounds that the seaman knew of the

defect.’’

The only cases cited in support of that statement are cases

in which the seamen were injured while obeying an order

to-use the defective appliance. In the Grimberg case there

was no showing that the seaman knew, or had any way of

- knowing, of the defect causing his injuries, and therefore

the doctrine would not have been applicable in any case. In

the Pittsburgh S.-S. Co. case there was* no evidence of

negligence on the part of the defendant, and the court,

merely by way of dicta, recognized the divergent lines of

authority and chose to approve the minority rule. :

The other four cases all arose in the Second Circuit

Court of Appeals, and in the most recent case from that

Circuit, it was held that even as to an unseaworthy condi-

tion—failure to provide lifelines during a storm—caused

by the negligence of the ship and master, the seaman as-

sumed the risk if -he voluntarily ventured on deck and

attempted to cross the deck in a storm while not acting

under any direct ordér or command. Johnson v. U. S., 74

F. (2d) .703.(C. C. A. 2, 1935). The District Court, which

-had held that the risk was not assumed because it was due

to a negligent condition, rendering the vessel unseaworthy,

was reversed and the libel was dismissed. (District Court

Oe SRO GER BL LE ho CEL MEG OIG RCE AIO Ag Ek is

34 eth

decision, 7 Fed. Supp. 183.) See further as to the extent

to which the Second Circuit has retracted from the broad

‘rule as stated inthe Grant case, Holm v. City Service Trans-

port Co., 60 F. (2d) 721; Skolar v. Lehigh Valley R. R. Co.,

60 F. (2d) 893; Scheffler vy. Moran Towing & Transport Co.,

68 F. (2d) 11. The importance of this question is shown ‘tt

the number of cases in which it has been raised and the

diversity of the holdings upon it. |

There are these further facts which indicate that under

‘the rule of any jurisdiction, the defense of assumption of

risk was available as against this injury received by

Anelich. Anelich, while he was concededly a seaman in the

sense in which that word.is used in the.Jones Act, and was

thus entitled to the benefits.of that Act, was not a sea-

man in the ordinary sense of the word; he was not subject

to disciplinary measures for disobedience; he could quit

work when he wished and receive his earned pay; the buy-

ers came alongside at least daily and the boat laid along

shore each evening; once a week the boat came into port

for a day’s holiday; he could disobey orders with no more

penalty than any shore employee, and was free to leave

the vessel at any time without forfeiture of any of the

money he had earned. (R. 326, 233). Under these

undisputed facts, any of the Circuits wéuld hold that

such an employee assumed risks under the same condi-

tions as a railroad employee. The reason for any distinc-

tion is gone, as the controlling element of coercion and

enforceable obedience is absent, and any act on the part of

Anelich was as voluntary as that of a shore worker. In

two recent. cases the Second Circuit Court of Appeals

has held that members of the crew of tugboats, who are sea- -

men within the sense of the Jones Act, are yet in the class

of stevedoring or longshoremen and assume all obvious

risks quite as though they were injured on shore. Skolar v.

~~)

35,

Lehigh Valley Ry. Co., 60 Fed. 893 ; Scheffler v. Moran Tow-

ing & Transport Co., 68 F. (2d) 11. As was said in the

Skolar case,

‘“Where a seaman is ordered to use a patently de-

fective appliance or to perform an obviously dangerous

act on shipboard, he is not held to have assumed the

risk because his duty to obey orders overrides the con-

sent ordinarily implied from knowledge of the ‘danger.

See a discussion in Holsh v. City Service Transport

Co., 60 F. (2d) 721, decided by this Court July 18, 1932.

The case at bar does not fall within the reason of the

rule. Here the plaintiff was an extra fireman, em-

ployed at an hourly wage with.the usual tour of eight

hours:a day on different tugs of the defendant. . He

was not supplied with a defective appliance nor or-

dered to perform a dangerous duty which fell to his

lot rather than some other member of the crew be-

cause of a superioMefiicer’s selection. The danger

arose from the mechanical design and construction of

the fire room. With this he was perfectly familiar and

voluntarily took employment: under those conditions

time after time on at: least fifty prior occasions. He

did not live on board but at his home*in Jersey City;

nor had he signed on for any definite voyage of this

harbor tug, nor been employed to work on her rather

than upon some other of defendant’s vessels. Had

he refused to go aboard the evening of November 5

when he sought the Auburn out at the dock, it seems

extremely doubtful as to whether he would have been

_ subject to the disciplinary penalties of the ordinary

seaman. Under such cireumstances, an analogy of a

stevedore is more persuasive than that ofa seaman in

- determining whether the doetrine of assumption of

risk should be applicable.’

So also in the Scheffler case, speaking of the crew of a

tugboat:

‘‘Such men are in the position of longshoremen or

other casual workers on the water (Skolar v. Lehigh

R. R. Co., 60 F. (2d) 893 (C. C. A. 2); The Scandi-

navia (D. C. 156 F. 403), who assume all obvious risks

quite-as though they were injured on shore. ,

“The libellant knew when the tug left that morning

that he weuld be compelled to handle the lines for the

absent deck hand, as he had done before. So far as

this exposed him to any greater danger than his

usual place aft, he acquiesced in the risk. This ful-

fills all the elements of an assumption of risk and pre-

vents his recovery.’ :

It has been held in many cases that a longshoreman

or stevedore, although entitled to seek the benefits of the

Jones Act, assumes the risk of injury from defective equip-

by. him as are applied to an action brought by a velltend

employee. O’Brien v. Luckenbach 8. S. Co., 293 Fed. 170

(C. C. A. 2, 1923); DeLuca v. Shephard S. S. Co. Inc., 65

F. (2d) 566 (C. C. A. 2, 1933); Lloyd v. Hogan -& itehi,

219 N. Y. S. 750, 755; Long v. Silverline, 48 F. (2d)

. 15; The Hindustan, 37 F.. (2d) 932, Aff. 44 F. (2d) 1015;

_ Yaconi v. Brady & Gioe Inc., 246 N. Y. 300, 158 N. E. 876;

Jeffries v. DeHart, 102 Fed. 765 (C. C. A. 3, 1900).

Prior to the decision in the instant case, the Washington |

Supreme Court had, in many cases involving both seamen

of assumption of risk was available, as it was before the

Jones Act was passed, in cases of maritime torts. Lund-

gren v. Pacific Coast S. 8S. Co., 103 Wash..81, 173 Pac. 1023;

' Hamre v. Rothschild & Co., 186 Wash. 522, 240 Pac. 909

(1925); Kahlstrom v. International Stevedoring Co., 141

Wash. 374, 250 Pac. 287 (1926); McGinn v. North Coast

Stevedoring Co., 149 Wash. 1, 270 Pac. 113, (1928);

Schotis v. North Coast Stevedoring Co., 163 Wash. 305, 320,

1 Pace. (2) 221 (1931), and cases cited. - .

In the instant case the Washington Supreme Court de-

‘cided a material and important question ‘arising under the

act of Congress herein termed the Jones Act, involving a

matter within the exclusive control of that Act, in a way

clearly in conflict with the applicable decisions of the Fed-

eral Courts and with its own prior decisions. Because of this

erroneous construction of a Federal statute, and because

this is a question of first impression in this Court and one

which is highly important to al! maritime workers to have

definitely settled, it is urged that this Court should take

jurisdiction to review and correct the decision of the Su-

preme Court of the State of Washington. |

1. Upon this point the evidence is undisputed and the

principles of law are definitely settled. The question raised

and the pertinent authorities are stated-in the petition un-:

der heading B, II, and in the interests of brevity will not be

repeated at this point. ‘The question is one merely of

whether an inference based on disputed facts can be drawn

in the face of direct and positive disinterested testimony. —

2. The duty which the maritime law places upon the

master and owners of.a vessel to furnish proper medical at-

tendance and treatment has been stated by this Court in

The Iroquois, 194 U. S. 240, as follows: :

‘The duty to provide proper medical attendance and

‘treatment for seamen falling ill or suffering injuries

while in the service of a ship has been imposed upon

the ship owners of all maritime nations. * * *

What is the measure of the master’s obligation in cases

where a seaman is severely injured while the ship is

at sea has been made the subject of discussion in sev-

eral cases; but each depends so largely upon its own

particular facts that the rule laid down in one may

afford little or no aid in determining the matter, de-

pending upon a different state of facts. * * * Each

case must depend upon its own circumstances, having

' reference to the seriousness of the injuries, the care

that could be given the sailor on shipboard, the proxim- ~

ity of an intermediate port, the consequences of delay

to the interests of the ship’owner, the. direction of the

wind and the probability of its continuance on the same

direction, and the fact of ‘whether a surgeon is likely

to be found with competent skill to take charge of the

case..* * * With reference to putting into port,

all that can be demanded of the master is the agercise

of reasonable judgment and the ordinary acquaintance

of a seaman of the geography and resources of the

country. “* * * Seafaring life is dangerous, acci-

dents of this kind are peculiarly liable to occur, and the

general principle of law that .a person entering a dan-

gerous employment is regarded as assuming. the risk

is peculiarly applicable ‘to the case of seamen.’’

_ The Iroquois is without doubt the leading case upon the

question and as is said therein, reference to other cases is

of little value because of the differing facts upon which

the decision in each case must depend. All decisions agree,

however, that the master is held only to the exercise. of

reasonable judgment under the circumstances and if that

judgment is conscientiously exercised, the master and ves-

sel are not responsible. The Vanderduyn, 261 Fed. 887

(C. C. A. 2, 1919) ; The Governor, 230 Fed. 857 (D. C. 1915).

Measured by the standard of care as set forth in these

cases, certainly it. cannot be said that on the undisputed

evidence set forth, the masters and owner of the ‘‘ Arizona”’

should be held négligent in their treatment of the wounded

man or in the course of conduct followed in securing medi-

-eal aid for him. It was asserted that the injured man

. should have been taken to one of.several other ports named;

it clearly appeared from the evidence that Friday Harbor

was the nearest port at which medical attendance could be

obtained (R. 330-332) and as was said in The Iroquois, the

mere fact that plaintiff named several possible ports indi-

cates that there was no one other course which the jury

could find as being the only reasonable course under the cir-

cumstances. It was also asserted that airplane service should

have been called from Seattle; and considerable evidence was

allowed as to available airplane service (R.167 et seq.). Not

only did the evidence show, however, that the defendants did

not know of the available airplane service and had never

heard of it (R. 327), but it also appeared without dispute

that the earliest time at which a telephone could be reached

was 9:40, more than an hour after the accident (R. 279,

281) and that a round trip from Seattle to Friday Harbor

could not have been made in less. than two hours actual

flying time (R. 178}. It clearly appears, therefore, that

Mr. Anelich received competent medical attention by Dr.

Sturdevant at Friday Harbor at 10:30, more than an hour

before he could have received such attention had the de-

‘fendants followed any other course suggested by the re-_

spondent here; and that such treatment as Dr. Sturdevant

gave him was the standard treatment to be given at the ti- o

a doctor first sees ‘such a wound; it is then necessary to

allow the patient to rest for a considerable period to re- -

cover from stock before any operative measures are taken

(R. 22, 166).

The master and crew of the ‘‘Arizona’’ made no effort

to cleanse or repair the wound other than to apply a tourni-

quet to halt bleeding. Had they attempted to clean up the

wound, without having special training and with only a

small first aid kit, it appeared that the likelihood of infec-

tion and greater shock would have been increased (R. 269,

274, 260, 265).

Delayed treatment and medical care is one of the risks

a seaman assumes, he expects and assumes that ordinary

methods will be utilized by his employer i in getting him to

medical attention.

40 -

It clearly appears from the evidence that the defendants —

exercised reasonable judgmen, under the circumstances,

and that as a matter of fact, and of law the course which

they followed was the reasonable and proper course under ~

the circumstances. Certainly there is no evidence of negli-

gence sufficient to sustain a verdict against them on the

basis of careless treatment and judgment on the part of the

master of the vessel, under the rules as laid down by this

Court in The Iroquois.

4. It has been at all times contended -by petitioners that

even if it be assumed that the fishermen should have at-

tempted to cleanse and repair such a wound, or should have

known of and called airplane service, yet there was no evi-

‘dence that the treatment actually given was a proximate’

cause of the septicemia resulting in death. The testimony

of each of the four doctors testifying in the case was that

in his opinion the organisms which resulted in septicemia

causing death entered the wound at the time of the original

injury (R. 160, 162, 165, 262, 267, 270, 273). It is undis-”

puted that from such a wound it is extremely likely that

septicemia will result under the best treatment—that septi-

received, even had he been anne immediately

- 267, 269).

With the uncontradicted evidence herein set forth, the

jury could not do other than speculate as to whether the

- negligent treatment, if any, was the proximate cause of |

septicemia, resulting in the death of Anelich. The Circuit

_ Court of Appeals of the Second Circuit in Cortes v. Balti-

more Insular Lines, 66 F. (2d) 526, had before it a very

similar question, it appearing that the‘plaintiff’s decedent

in that case had contracted pneumonia which might have

been any one of four types, one of which averaged a fatality

of from 70% to 90%. His treatment on board the ship was

careless in the extreme. The courts reversed the ruling

as follows: :

‘‘Granting that the jury could have found negligence

in treatment, was there evidence from which they could

have found that such negligence was the cause of death?

We think not. * * * If he had a disease so fatal -

that the chance of recovery was only one to three out |

- of ten, even with the best of treatment, it seems to us

pure speculation on the part of the jury to find that

the failure to land him at intermediate port or to get °

him to a hospital more promptly after arrival, or the

failure to give him more careful treatment on board

ship, was the cause of his death. * * * (The Court

pointed out that doctors testified that his chance of re-

covery would have been increased by reasonable medi-

cal treatment on board.) But that is scarcely equiva-

lent to testimony that with reasonable certainty the

defendant’s neglect can be said to have caused the

-seaman’s death. * * °* eee

‘Because on this record a verdict for the plaintiff

would be purely speculative, we think there was error |

in submitting the. case to the jury. The causal con-

nection between the defendant’s breach of duty and the

‘resulting injury or death must not be left to mere ton-

jecture. Thorkeldson v..Nicholson, 154 Minn. 106, 191,

N. W. 269, 220; C. M. & St. P. Ry. v. Coogan, 271 U. S.

472, 478, 46 S. C. 564, 70 L. E. 10, 11; Ketterer v.

Armour & Co., 247 F. 921, 931, L. R. A..1918 D. 798

(C. C. A. 2); N. Y. Cent. R. Co. v. Grimstad, 264 Fed.

334 (C. C. A. 2); ef Harris v. Penn. R. Co., 50 F. (2d)

866 (C. C. A. 4).”’

The fundamental law as stated in the Cortes case, that

- verdicts cannot rest on mere conjecture and that causal

connection must be shown between negligence and injury, is _

well established both by the decisions of this Court, C, M.

& St. P. Ry. v. Coogan, 271 U. S. 472, 474, 478, and by the

prior decisions of the Supreme Court of Washington.

Huffine v. Alvin Investment Co., 126 Wash. 490, 218 Pac.

194; Peterson v. Great Northern Ry. Co,, 166 Wash. 538,.

7 Pac. (2d) 296. The only case which in any degree

supports the position of the respondent and of. the

court below is the subsequent decision of the District

Court in the Cortes case upon the retrial (6 Fed. Supp.

604). The principles there stated stand alone and ap-

pear in-clear conflict with the opinion of the Circuit Court,

and with the decisions of this Court. In -the instant

case, as has been pointed out, all medical testimony agreed

that in all probability the.wound became infected at the

time of the original injury ; and it was shown that in wounds

_ such as this septicemia develops in more ‘than half of the

‘eases. If such a percentage arises from the average case

in which medical attention is not delayed for any length

of time, what would. be the percentage under circumstances

in which dirty clothing is ground into the wound and if

enforced delay of two hours exists before medical atten-

tion can be reached? Under such circumstances, the jury

can do no more thati-guess when it states that failure to

cleanse the wound on board the vessel, or failure to use an

airplane, caused the blood poisoning which resulted in the

death of Anelich. Each of the doctors testified that in their

opinion the infection got into and was carried through the

blood stream at the time of the accident, and even had hos-

pitalization followed immediately, it was entirely possible

that death would have ensued. _

There is absolutely no testimony that negligent treat-

ment, if any, on the part of the defendants can be said

with reasonable certainty to have been a proximate cause of.

the decedent’s death; on that phase the jury had grounds *

only for speculation and conjecture, and the court below,

was in error in holding that a jury question was presented

(R. 22). ©

eto t ns ac et 2 oe,

Conclusion.

It is, therefore, respectfully Submitted that this case is

one calling for the exercise by this Court of its supervisory

powers, in order that the errors of the Supreme Court of

Washington heretofore specified may be corrected and

justice done, as of right should be, and that to such an end

a writ of certiorari should be granted and this Court should

review the decision of the Supreme Court of the State of

Washington and finally reverse it. —

ta ; Rapa S. Pierce,

Counsel for Petitioners.

Epwiy J. Cummins,

Gorvon H. Sweany,

Of Counsel.

(7241-C)

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