Brief for the Respondents in Opposition — American-West African Line, Inc. v. Lydecker

No.1 071

Supreme Court of the United States

OCTOBER TERM—1940.

<-<or

AMERICAN-WEST AFRICAN LINE, INC.,

Petitioner,

against

JOHN A. LYDECKER, as Administrator of the

Estate of John Bernard Frye,

Respondent.

BRIEF FOR RESPONDENT IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI.

SILAS B. AXTELL,

DOMINICK BLASI,

Counsel for Respondent.

ACKERMAN PRESS, Inc., 142 Liberty St., Phones RE ctor 2-5356-7

Facts

Jurisdiction

Reply to Petitioner’s Argument

CASES CITED.

Arizona vy. Anelich, 298 U. S. 110

Baltimore & Carolina Line Inc. v. Redman, 70 Fed.

(2) 635, 295 U. S. 654

Beebe v. Moormack Gulf Lines, 59 F. (2d) 319, cert.

den. 287 U. S. 597

Brinkmeier v. Mo. Pac. Ravy. Co., 224 U.S. 268 cceeeeesnesnos

De Luca v. Shepard Steamship Lines, 65 F. (2d) 566;

opinion modified, 67 F. (2d) 437, cert. den. 291

U. S. 685

Honeyman v. Hannan, 300 U.S. 14

Israel v. Arthur, 152 U. S. 355

Luckenbach 8. 8S. Co. v. Campbell, 8 Fed. (2) 223 om

Lynch, et al., State Tax Com’rs, of New York v. People

of New York ex rel. Pierson, 293 U. S. 55 sun

Missouri Pacific R. R. Co. v. Bushey, 20 S. W. (2) 614

New Orleans & N. E. R. R. Co. v. Harris, 247 U. S. 367

New York Central v. Marcone, 281 U. S. B45 neers

Panama v. Johnson, 289 Fed. 964, 264 U. S. 875 ncn

Sabine Towing Co. v. Brennan, 85 F. (2d) 478, cert.

den. 293 U.S. 611

Smiley v. Kansas, 196 U. 8S. 447

Socony-Vacuum v. Smith, 305 U. S. 424

St. Louis v. Craft, 237 U. S. 648 5,

St. Louis v. Simpson, 286 U. S. 346

Warner v. Goltra, 293 U. S. 155

10

7,8

15

6,7

13

12

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Orner AvuTuorities CirepD:

PAGES

Judicial Code as amended by the Act of February

13th, 1925, Chapter 229, Sec. 1, 43 Stat. 938 [U. S.

C. A. Title 28, Section sia

Section 240(a) 6

The Jones Act (Title 46, Section 688, U. S. C. A.):

Section 33 6

Railway Employers Liability Act, Title 45, United

State Code Annotated:

Sections 51 and 59 5, 10

Supreme Court of the United States

OCTOBER TERM—1940.

So

American-West Arrican Ling, Inc.,

Petitioner,

against

Joun A. Lypecxer, as Administrator of the Estate of

John Bernard Frye,

Respondent.

= =

+o

BRIEF FOR RESPONDENT IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI.

This case does not present any question of the nature

which this Court is accustomed to review by certiorari.

There is no federal question of substance. The unani-

mous decisions of the three New York Courts were in

accord with earlier decisions of this Court, the New York

Courts and the statute under which suit was brought. No

question of general interest or large public importance is

presented. There are no conflicting decisions on which this

Court is called upon to settle a question of law.

This case concerns only the litigants involved.

The Facts.

Frye, a seaman, was a licensed officer, in the employ of

petitioner for 8 years and met his death as a result of

being jammed between the end of a boom and the mast of

the S. S. ‘‘Padnsay’’ at Port Harcourt, Nigeria, British

West Africa, on February 6, 1937.

2

Petitioner’s statement improperly and insufficiently de-

scribes the condition of the vessel and its gear; and the

events of accident, etc., which necessitates a recitation of

the proven facts.

At the time of the accident cargo was being discharged

from #2 hatch by the use of a steam winch and booms.

The heel of the jumbo boom jammed decedent between the

end of the boom and the mast.

The evidence satisfactorily established the ship’s unsea-

worthiness, the petitioner’s negligence and proof of defec-

tive equipment; that the brake band was broken was ad-

mitted by Frye’s superior officer, the ship’s master, Cap-

tain Seay (R., 186, 187).

“*Q. Was it taken off?

A. It was broken off.

Q. When was it broken off.

A. I do not recall just when but Mr. Frye reported

that a wire had broken the brake band on both the

starboard No. 2 winch and the port No. 1 winch”’ (R.,

186).

‘“*Q. The report by Mr. Frye that there were two

bands broken by wires?

A. The report was given to me on the way down the

coast’’ (R., 187).

These repairs could and should have been made at Lagos

before the vessel arrived at the port where Mr. Frye was

injured, but were not (R., 186).. The repairs could also

have been made by the chief engineer of the vessel—the

officer who witnesses for both sides testified is charged

with that duty, not the chief officer, Frye, as asserted by

petitioner (R., 124, 125, 290, 309). It was his, the chief

engineet’s duty to make repairs to machinery and to keep

the winches and brakes in order. This was admitted by

two of petitioner’s witnesses (R., 290 and 309). Captain

Seay was superior to the chief engineer and of Frye (R.,

Gee haces, ety oO ies ae

Ss 3

187). The chief engineer, in petitioner’s employ for 10

years (R., 233) said:

‘*Q. As chief engineer of the ‘Padnsey’ what are

your duties?

A. To keep all machinery attached to the vessel in

good condition’’ (R., 234).

**Q. You have general supervision of all machinery

and boilers and the engine-room and—

A. Deck machinery.

Q. And there is only one person over you, the cap-

tain?

A. Yes’’ (R., 235).

This testimony destroys petitioner’s assertion that

Frye was in charge of the machinery and solely respons-

ible for the accident.

The kroo boys and winchmen, who were Frye’s fellow

servants ran away when the boom began to fall without

shutting off the steam or otherwise assisting Frye (R.,

318) and this was certainly negligence within the meaning

of the Jones Act.

Petitioner claims that decedent ordered the shifting of

gears, and argues that this was the sole cause of the acci-

dent. Three eye witnesses testified they heard no such

order nor did they hear any alleged confession to that

effect (R., 40, 69, 85, 320, 321). The 2nd mate, who saw

the accident and only 10 feet away from Frye, said the

purported confession originated with the captain (R., 320).

‘“*Q. Did you, as a matter of fact, hear Frye give

any order to shift gears just before the boom fell?

A. No, sir.

Q. Did he give you any such order within your

hearing?

A. No.

Q. You are sure?

A. Yes, sir’’ (R., 321).

PBS RNR RAE ORE OP cope Sn

i

The captain experienced in testifying, on behalf of peti-

tioner in negligence actions (R., 223), had also ‘‘inter-

viewed seamen concerning accidents on other occasions’’

(R., 223). He had been in petitioner’s employ for 12 years

and was still in its employ when he testified (R., 184), and

he admitted Frye ‘‘was a careful man’’ (R. 225), ‘‘a good

officer in every way’’ (R., 206).

Frye still alive when he was taken off the vessel (R.,

86), was conscious (R., 247, 271) while in hospital, made

this request to Captain Seay:

‘‘T want you to tell my sister to take care of the

baby. He spoke of his niece always as the baby’’

(R., 191).

The award herein made was for this girl, for whom this

action was brought.

As to the item of damages the evidence is uncontra-

dicted that decedent was single (R., 399), left surviving

this orphaned niece whom he had supported since she was

3 years old and with petitioner’s knowledge for at least

eight years, the funds for her support having been by an

allotment made directly by petitioner from decedent’s

wages. Checks still in its possession at the time of trial,

were sent to the custodians of the child by it (R., 296).

Decedent, in addition to the $50.00 monthly allotment, gave

the child clothing and spending money (R., 129). She was

Frye’s sole surviving dependent (R., 7, 130, 131, 399).

(During these years he made no allotments to anyone else.)

Frye was 38 years of age (R., 126), and had a life ex-

pectancy of 29.62 years. His niece or ‘‘baby’’ as peti-

tioner and all of the ship’s crew knew, was an orphan,

whose father died before she was born, and whose mother

died when she was 3 years old. The contributions were

consistently made, as proven by petitioner’s checks. He

also, at the end of

5

‘‘every trip he would buy whatever was needed in the

line of clothes, and things of that sort, left money for

her’’ (R., 129).

Decedent was very affectionate and kind to her at all

times (R., 142). .No other person ever made any claim

except her (R., 7, 20, 21). The pleadings as well as the

proof exclude the possibility of other dependents includ-

ing the father and mother (R., 7, 21, 130, 131, 399). She

has the undeniable right under the statute to the recovery

that has been allowed her, she being

‘‘the next of kin dependent upon such employee’’

(See. 59, title 45, U. S. C. A.).

She is the decedent’s sole surviving dependent (R., 7, 130,

131). :

The first pleading made the respondent’s claim known to ©

petitioner that decedent

‘Cat the time of his death left surviving him a niece

who was solely and wholly dependent upon him for

support”’ (R., 7).

Respondent throughout the entire course of the litigation

never changed his position. The proof given at the trial

was in conformity with the pleadings.

The second cause of action was for conscious pain and

suffering. The jury fixed and the Courts affirmed the

award of $7,500.00. The decedent suffered excruciating

pain and agony for at least three hours after he was in-

jured (R., 86, 247, 271, 395, 396).

The award on this cause of action was made pursuant

to Section 59, Title 45, U. S. C. A., and was reasonable in

amount.

St. Louis v. Craft, 237 U. S. 648, 661;

Missouri Pacific R. R. Co. v. Bushey, 20 S. W. (2)

614, 618;

Luckenbach 8. S. Co. v. Campbell, 8 Fed. (2) 223.

6

In St. Louis v. Craft (supra) this Court affirmed an

award for $5,000.00 where decedent had suffered 30 min-

utes and in so doing it is to be noted as aforesaid that:

“Tt involves only a question of fact and is not open

to reconsideration here. Railroad Co. v. Fraloff, 100

U. S. 24, 31; The Justices v. Murray, 9 Wall. 274;

Erie R. R. v. Winter, 143 U. 8S. 60, 75; Herencia v.

Guzman, 219 U. S. 44; Southern Railway v. Bennett,

233 U. S. 80. Judgment affirmed.’’

As petitioner had conceded to this Court that the Trial

Court correctly charged the jury, this case then simply

involves the failure of petitioner to provide decedent with

a seaworthy vessel, proper gear, and petitioner’s negli-

gence under the Jones Act (Title 46, Section 688, U. S.

C. A.) and Railway Servants’ Act. It is to be noted at

the outset that on the question involved the Trial Court

found:

‘‘that an issue was raised for the consideration of the

jury and that the facts sufficiently sustained the ver-

dict rendered’’ (R., 413).

Three Courts have fully considered the subject matter

and law applicable and all have found in the affirmative.

Their conclusion that the evidence was sufficient to sustain

the judgment is in harmony with the statutes and decisions

on the subject. Nothing more than well settled principles

of law to the facts proven is involved.

Jurisdiction.

The petitioner invokes the jurisdiction of this Court

under Section 240 (a) of the Judicial Code (as amended by

the Act of February 13, 1925, Chapter 229, Section 1, 43

Stat. 938; U.S. C. A., Title 28, Section 347 [a]) and seeks

by certiorari to review a State Court judgment, but

See re es be eee ee ee re ee, ae 2 *

7

petitioner has failed to show that jurisdiction may be en-

tertained under the provisions of said act. Petitioner’s

Statement of Jurisdiction (p. 5) concedes:

“The court correctly charged the jury by reading to

it the applicable sections of the Jones Act and Title

45, Section 51, United States Code Annotated, and ad-

monished the jury to be very careful to remember the

statutes upon which the action was based.’’ (Italics

ours.)

There was not raised during the course of the trial, and

the record is lacking that the question sought to be reviewed

now under Point I of petitioner’s brief was presented to

the Trial Court and raised by it during the trial. Further

we say that there is no statement or evidence in the record

that petitioner presented to the Court of Appeals of the

State of New York for determination, a federal question

and that its decision of the federal question was necessary

to the determination of the cause. There is no report of

an opinion by any of the Appellate Courts, for no opinion

was rendered by them.

As part of its basis for jurisdiction petitioner refers to

and quotes a part of one of respondent’s briefs in one of

the Appellate Courts. The quotation is not only incom-

plete but the record negates the incomplete and misquoted

statement of petitioner, as set forth in its Statement as to

Jurisdiction (p. 5). We submit that the record alone

should be relied on as the basis for jurisdiction of the

petition to this Court.

Petitioner has also endeavored to induce this Court to

review proven facts as found by the jury and matters ex-

clusively of state procedure, although it has been consist-

ently held that such questions will not be reviewed:

Smiley v. Kansas, 196 U. S. 447;

Israel v. Arthur, 152 U. S. 355;

Brinkmeier v. Mo. Pac. Rwy. Co., 224 U. S. 268;

St. Louis R. R. Co. v. Craft (supra).

8

In Smiley v. Kansas, 196 U. S. 447, at page 453, the rule

was stated to be:

‘“The verdict of the jury settles all questions of fact.

In Missouri, Kansas &c. Ry. Co. v. Haber, 169 U. S.

613, 639, it is said: ‘Much was said at the bar about the

finding of the jury being against the evidence. We can-

not enter upon such an inquiry. The facts must be taken

as found by the jury, and this court can only consider

whether the statute, as interpreted to the jury, was

in violation of the Federal Constitution. Chicago,

Burlington & Quincy Railroad v. Chicago, 166 U. S.

226, 242, 246.’ ”’

In Israel v. Arthur, 152 U. S. 355, at page 362, this Court

held:

‘And it has been often held, at least in actions at

law, that this court has no jurisdiction to revise the

decision of the highest court of a state upon a pure

question of fact, although a Federal question might

arise if the question of fact were decided in a particu-

lar way. Dower v. Richards, 151 U. 8. 658, and cases

cited. * * * Writ of error dismissed.’’

And in Brinkmeier v. Mo. Pac. Ry. Co., 224 U.S. 268, at

page 270, the rule was stated to be:

‘Error is assigned upon this ruling; but as it involved

only a question of pleading and practice under the laws

of the State, it is not subject to review by us. Texas &

New Orleans, R. R. Co. v. Miller, 221 U. 8. 408, 416.

It also was held that the evidence produced upon the

third trial was not sufficient to sustain a recovery under

the petition, and error is assigned upon this. As the

petition did not state a cause of action under the Safety

Appliance Act, but at most a right of recovery at com-

oe Met TVA Ey Megha ast 5s eA - .

SASL NEG RAYS ROR BEES CTS LER URINE EE

9

mon law, the ruling upon the sufficiency of the evidence

did not involve a Federal question, and so is not open

to reexamination in this court.

Finding no error in the record in respect of any Fed-

eral right, the judgment must be affirmed.’’

Petitioner did not present to the Trial Court the argu- ——

ment advanced here. There is lacking in the record the

presentation of a federal question for decision to the high-

est Court of the State. The following authorities indicate

that the petition should be denied.

In Lynch et al., State Tax Com’rs, of New York v. People

of New York ex rel. Pierson, 293 U.S. 52, at pages 54, 55,

it was held:

‘It is essential to the jurisdiction of this Court in

reviewing a decision of a court of a state that it must

appear affirmatively from the record, not only that a

federal question was presented for decision to the

highest court of the state having jurisdiction but that

its decision of the federal question was necessary to

the determination of the cause, and that it was actu-

ally decided or that the judgment is rendered could

not have been given without deciding it. (Citing cases.)

As the record fails to show jurisdiction in this Court,

the writ of certiorari is dismissed as improvidently

granted.

Dismissed.’’

In Honeyman v. Hanan, 300 U. S. 14, 18, this Court

stated:

‘‘Before we may undertake to review a decision of

the court of a State it must appear affirmatively from

the record, not only that the federal question was pre-

10

sented for decision to the highest court of the State

having jurisdiction but that its decision of the fed-

eral question was necessary to the determination of

the cause. Lynch v. New York ex rel. Pierson, 293 U.

S. 52, 54, and cases there cited. Whether these re-

quirements have been met is itself a federal question.

As this Court must decide whether it has jurisdiction

in a particular case, this Court must determine whether

the federal question was necessarily passed upon by

the state court. That determination must rest upon

an examination of the record.’’

Reply to Petitioner’s Argument.

The petitioner’s assertion that there were no facts to

sustain the judgment as required by Sections 51-59, Title

45, U. S., is not supported by the record nor do the cases

cited support its argument. An analysis thereof follows:

In the case of New Orleans R. R. Co. v. Harris, 247 U.S.

367, 372, the mother sued, and her complaint contained no

reference to his widow who was alive at the time of trial,

and had neither remarried nor divorced. There was no

child, and the Court (with which we agree), held:

‘‘The act makes the widow sole beneficiary when there

is no child and only in the absence of both, may parents

be considered. ’’

There is no comparison between the cases. The recovery,

this Court said, must be made under the federal act, as

was done in our case, not under the state act as the plain-

tiff in the Harris case tried to do.

In Sabine Towing v. Brennan, 85 Fed. (2) 478, the Fifth

Cireuit Court of Appeals in a long and detailed opinion

after stating at page 481 that ‘‘The law is well settled’’,

held at page 484:

BSE ee, ENA AAR RE SE OS RNID own

ll

‘‘There is no doubt that the cause of action abated with

the death of the mother, who at the time of her son’s

death was the sole beneficiary entitled to recover, to

the exclusion of all others.’’ (Italics ours.)

In the case at bar the sole dependent relative appeared

and testified (R., 136 to 142). There has therefore been

no abatement as there was in Brennan’s case.

In Beebe v. Mooremack Gulf Lines, 59 Fed. (2) 319, Har-

rison H. Knighton, an employee, was survived by a wife,

child and mother. A Marion Beebe, with whom some weeks

before his death he had gone through a marriage ceremony,

claimed damages. The employer had settled the case with

the mother, wife and child. Beebe was not recognized, be-

cause as the Court said, there can be but one recovers, and

that recovery may be only had by the lawful wife, there

being but one widow, namely, the first wife. It held in

denying Beebe damages:

‘‘The statute speaks of the surviving widow as though

there could be but one. She who was the decedent’s

lawful wife at the time of his death is his widow.

Polygamy is a crime under the laws of the United

States. * * *

We feel sure that Congress did not contemplate the

possibility of a man leaving two lawful wives, or hold-

ing an employer to compensate two women claiming to

be such.’’

Petitioner’s contention that Frye, being an officer of the

vessel, assumed the risk of the defective equipment and

that it was not therefore responsible either for the unsea-

worthiness of the vessel and its equipment or the acts of

his fellow crew members and the master is erroneous. The

fact is that though Frye was chief mate he was a ‘‘sea-

12

man’’ and entitled to all the benefits of laws enacted for

their protection. Petitioner’s responsibility and duty to

him was no less in degree than its duty to the lowest rank-

ing man on the vessel.

Warner v. Goltra, 293 U. S. 155.

It was there held that even the master of the vessel, was

a seaman within the meaning of the Jones Act.

In Arizona v. Anelich, 298 U. S. 110, at 123, this Court

said:

‘Its (the Jones Act) purpose was to enlarge that pro-

tection, not to narrow it. Cf. Chelentis v. Luckenbach

S.S. Co., supra. Its provisions, like others of the Mer-

chant Marine Act, of which it is a part, are to be lib-

erally construed to attain that end, citing cases.’’

Concerning the case of DeLuca v. Shepard 8S. S. Co., 65

Fed. (2) 566, opinion modified, 67 Fed. (2) 437, cert. denied,

291 U. S. 685, on which petitioner places great stress and

reliance, there are several important factors that distin-

guish it from ours. DeLuca was not a seaman, but Frye

was. DeLuca’s case was a third party action, this was not—

this is a case of master and servant, DeLuca’s was not.

In the DeLuca case the Court found:

‘“‘There was no defect in the cable furnished by the

defendant * * *’’ (p. 438).

As pointed out above, Captain Seay admitted the brake

band was broken and that it was not repaired. The jury’s

verdict and the affirmances negate a finding such as was

made in DeLuca’s case. Petitioner’s contention that it was

not negligent or that its vessel was without defects is thus

satisfactorily refuted. Furthermore DeLuca as a shore

worker was free to leave his employment, Frye was not.

——

13

Frye was in foreign waters and required to obey the orders

of the ship’s master.

Panama v. Johnson, 289 Fed. 964. The injured seaman

was also in foreign waters. At page 979 it was held:

“It is the duty of seamen to remain with the ship and

to act in obedience to the commands of the master.

Disobedience of orders by a seaman may involve him

in serious consequences and subject him to possible

forfeiture of wages previously earned and to imprison-

ment by the master. * * *

‘‘A master of a vessel has authority to enforce dis-

cipline on his ship and to compel the obedience of

seamen and may inflict corporal punishment upon

them.’’

This was the case in which the constitutionality of the

Jones Act was argued and sustained (Panama v. Johnson,

264 U. S. 375).

The St. Louis v. Simpson case, 286 U. S. 346, relied upon

by petitioner is distinguishable from the case at bar, and

is therefore not applicable. It appears the claimant

Simpson:

‘‘rests her right to recover upon what is characterized

as the doctrine of ‘the last clear chance’ ’’ (p. 349).

We did not recover on this ground and have never so

claimed. This Court found in the Simpson case that the

casualty was due to the decedent’s sole negligence. The

jury made no such finding in our case. In that case there

was no claim of defective equipment or gear. In our case

it was proven the brakes were broken and could have been

repaired long before Frye was injured, but were not.

New York Central v. Marconi, 281 U. S. 345, is not help-

ful to petitioner. In affirming a plaintiff’s recovery, had

by a widow, at page 349 this Court said:

a

14

‘‘We think that there was sufficient evidence of peti-

tioner’s negligence to take the case to the jury.”

And at page 350:

‘On the evidence it was for the jury to say whether

petitioner exercised due care in moving the engine

without a more specifie and effective warning and

whether failure to give it was the cause of the death.

The jury, having found, as it might, that the negli-

gence was the cause of the death, might also have

inferred that the deceased was guilty of contributory

negligence, but the trial judge correctly charged that

under the Federal Employers’ Liability Act contribu-

tory negligence is not a bar to recovery unless it is the

sole cause of the injury or death, and may be taken

into consideration by the jury in fixing the amount of

damage.’’

No claim has been made in the case at bar that the Court

did not properly charge the jury about contributory neg-

ligence. In fact, petitioner has admitted that the Trial

Court made a correct charge (p. 5, Statement as to Juris-

diction).

This Court very recently defined the rule with regard

to the responsibility of owners for the unseaworthiness of

their vessels and the comparative negligence, if any, of

the injured seaman.

‘We think that the consistent development of the

maritime law in conformity to‘its traditional policy of

affording adequate protection-to seamen through an

exaction of a high degree of responsibility of owners

for the seaworthiness of vessels and the safety of their

appliances will be best served by applying the rule of

comparative negligence rather than that of assumption

of risk, to the seaman who makes use of a defective

appliances knowing that a safe one is available. The

power of the trial judge to guide and instruct the jury

15

and his control over excessive verdicts afford as ade-

quate a protection to owners as in any other case

where the negligence of the seaman, whatever its de-

gree, has contributed to an actionable injury.’’

Socony-Vacuum v. Smith, 305 U. S. 424, 432.

Baltimore & Carolina Line, Inc. v. Redman, 295 U. S.

654, also relied on by petitioner is not applicable herein.

In that case, the Trial Court reserved its decision on

the motion to dismiss the complaint, until after the jury

returned its verdict, but the Trial Court in case at bar

ruled on petitioner’s motions before submitting the issues

to the jury, making no reservations (R., 337, 338).

And what is more important in the Redman case, with

which this Court agreed, the Circuit Court (70 Fed. [2]

635) made this finding:

‘We have examined the entire record with care and

are convinced that the evidence is insufficient to sup-

port the verdict. * * * When the only testimony for a

plaintiff is contrary to physical facts proven without

contradiction, the verdict for the plaintiff should be

set aside’’ (p. 637). (Italics ours.)

In our case the Trial Court, with which the appellate

Courts unanimously agreed, found that ‘‘the facts suffi-

ciently sustain the verdict’’ (R., 413, 421, 428, 436).

It is submitted that, the principles of law applicable

herein being settled, that further litigation in this mat-

ter is no longer warranted and the petition for a writ of

certiorari should be denied.

Dated: May 28, 1941.

Respectfully submitted,

SILAS B. AXTELL,

DOMINICK BLASI,

Counsel for Respondent.