Radisich v. Franco-Italian Packing Co.

J.—The defendant, Franco-Italian Packing Company, hereinafter referred to as the company, appeals from a judgment entered upon a jury verdict awarding the plaintiff, the surviving widow of Philip Radisich, the sum of $8,000 damages for his death, which occurred when he was fifty-three years old. The action was brought under the provisions of the Jones Act ( 46 U.S.C.A. § 688 ) against the company, as owner pro hac vice of the purse seiner, “Chinook,” and Luca Joncich, the master of the vessel. As to the latter defendant, it was dismissed upon motion of plaintiff just prior to the submission of the case to the jury.

Appellant claims that the judgment should be reversed for various reasons: 1. That there was no employer-employee relationship existing between the company and Philip Radisich; 2. That not only was there no proof of negligence on the part of the company but “the accident was caused solely by the fault and negligence of deceased, who was an experienced fisherman, getting too close to the winch”; 3. That the court erred in refusing to allow the introduction of testimony relative to an agreement between the boat owner, Nick Mardesich, and the company as to control of the boat upon which Radisich was killed; 4. That the court erred in giving instructions to the jury on “res ipsa loquitur,” in giving conflicting and contradictory instructions on inference of negligence and, also, in giving erroneous instructions to the jury concerning the award of damages. The merit or lack of merit of these contentions must be determined by the record, including a study of pertinent exhibits.

Nick Mardesich of Bellingham, Washington, hereinafter called the owner, was the registered owner of the ‘ ‘ Chinook, ’ ’ and in May and June of 1940 had considerable correspondence with the company, through his attorney, concerning a proposal that the vessel be employed in fishing off the coast of Southern California from November, 1940, to April, 1941. As the result of these negotiations the company obtained the “Chinook” in the following November in the early part of the sardine fishing season. On November 19, 1940, Mr. Norton, assistant secretary for the company, wrote the attorney for the owner at Bellingham, Washington, the following letter:

“Dear Mr. Greene:—

“This will introduce Mr. Louis Joncich, who we are sending to bring down the good ship ‘ Chinook. ’

“Will you please see that Mr. Joncich is assisted in every possible way in obtaining necessary supplies, etc., for his trip here. Speed is important as sardines are running plentifully now, and every day means a lot of money.

“Draw on us thru California Bank, Terminal Island for ballast which we wired about and groceries, etc. Fuel will be furnished by Union Oil Company.”

Shortly after this letter was presented, Mr. Joncich and the owner went together to the customs office and entered Joncich’s name as captain of the vessel. Joncich then engaged a crew of nine additional men. Among these was the deceased.

The “Chinook” was of the smaller type fishing vessel, being 56 feet in length and 15 feet in breadth with a draft of 7 feet. Between the pilot house, located near the bow of the vessel, and one of the vessel's hatches, was a winch, with a double niggerhead, one spool of which, called the “forward” nigger-head, faced the pilot house, and the other, called the “aft” niggerhead, faced the center of the hatch opening. The distance between the hatch and the aft niggerhead was approximately 6 or 7 inches. The accident occurred on February 25, 1941, about twenty minutes after 12 noon, while the “Chinook” was on the lee side of Santa Barbara Island, and the crew was engaged in washing its nets. The deceased, following orders of the master, was working back and forth on the starboard side of the vessel from the fore corner of the hatch to a point close to the aft niggerhead. Jerry Rodich, the engineer of the vessel, worked near the aft corner of the same hatch, also on the starboard side. The cook of the vessel, Earl O’Neil, was stationed at the forward niggerhead and worked just “abow” the deceased. The master was washing the net with a hose, standing 8 or 10 feet “astern” of the hatch, between it and a turntable. Part of the net was in the hold of the vessel, part of it on the turntable, and part of it in the air, held by a line that went to the forward niggerhead. The cook, O’Neil, “operated both the winch and took care of taking the line off of the niggerhead,” during the raising of the net, and he testified that he “wrapped the rope about three times around the niggerhead and pulled on the loose

Appellant, in support of its contention that the company was not the owner pro hac vice of the “Chinook” and, therefore, not liable for the death of Radisich, argues that the correspondence between the company and the owner did not indicate a charter of demise under which the entire ship was surrendered to defendant, but merely a fishing contract. Although in the instant case there was no formal document, called a charter party and signed by the parties, the jury nevertheless could determine whether the vessel was actually “chartered” by considering the correspondence between the parties, together with the company’s subsequent proprietary action over the vessel, its hiring of, and exclusive control over the master and the crew, and its hearing the loss on this unprofitable venture. That all these circumstances evinced an

The correspondence discloses that in the early part of 1940, the owner was in financial difficulties with his creditors, certain of whom had libeled the “Chinook” in the State of Washington and threatened a sale. However, after an exchange of letters and telegrams between the owner and various creditors, including the company, a sale was averted and the owner’s debts refinanced, the company agreeing to extend for three years a mortgage which it held on the vessel, upon the promise of the owner and the other creditors that the vessel would fish for it in California during the sardine season commencing in November and ending in April of the following year. The company was to extend the “usual credit for outfitting and insurance” and was to return the boat to Bellingham, Washington, “in April [of] each year” during the mortgage extension. As payment for the use of the boat it was agreed between all parties that the boat would receive two shares of the season’s catch, to be paid not to the owner but to a trustee for the creditors. The company was to provide the sardine seine. We have already quoted the letter presented by Joncich when he went to Bellingham to take charge as skipper or master and to bring the vessel to California, all costs and expenses being advanced by the company. Joncich, acting under instructions from the company, chose his crew, some being hired in the North and some in California. Since ballast was needed for the vessel on its trip down the coast, the company ordered for its own use and paid for some 20,000 feet of lumber as a deck load, which thus served. a double purpose, “as ballast” for the vessel and as cargo for the company. When the “Chinook” arrived in San Pedro she was placed in dry dock for damage caused to the propeller on the way down, for which damage the insurance carrier was notified, and presumably paid the bill. Also, while the vessel was in dry dock, the company, upon its own initiative and order, installed in the vessel a large water pump owned by it and, in addition, ordered certain changes made to the hatches, changing it from a three-hatch to a two-hatch vessel, making one of the hatches smaller “because the niggerhead was in the way,” and raising its coaming “to prevent the sea from washing down into the hold.” There is evidence that

Joncich gave positive testimony to the effect that he had been hired by the president of the company to skipper the vessel and could be fired by him alone; that he had been instructed by him to hire the crew, had received and had been advanced by the company all expenses in connection with bringing the vessel from Washington to California, and had been further instructed to bring to the company cannery all the fish which might be caught. Joncich and the owner both denied that the latter had hired the former or had any control over him. In view of the somewhat evasive testimony offered by the company’s officers to contradict Joncich’s statements, the question of whether he was in the employ of the owner or of the company, as owner pro hac vice, was properly left to the determination of the jury. (The Norland (Loe v. Goldstein) (1939), 101 F.2d 967 , 971.) The record is devoid of any evidence indicating that the owner retained any command, possession or control over the vessel, its crew, or its fishing venture after it had been turned over to the company as owner pro hac vice, his only interest in the venture being to reduce the indebtedness owed his creditors by receipt of two shares from the season’s catch as payment for the use of the vessel.

In accordance with the usual custom in the fishing industry, the catch was to be divided into shares. After operating expense, such as the cost of fuel, ice and moorage, was deducted, the balance of money derived from the sale of fish to the company would be distributed according to the shares: the boat or owner to receive its two shares; the company two for its seine; and each member of the crew one, with an additional one-half share to the master as a bonus, all of these shares to the fishermen being in the nature of wages. (See United States v. Laflin (1928), 24 F.2d 683 , 685.) The evi

Appellant’s contention that the court erred in sustaining objections to conversations bearing upon the control of the boat and its officers relates to two occasions when the owner came to California, one of which allegedly took place “in the summer of 1940” and the other in December, 1940, after the negotiations for the delivery of the “Chinook” had been completed and an actual transfer of the boat had been made. We find no error on the part of the court in excluding this testimony, since the correspondence discloses that these two matters, allegedly covered in the conversations to which objection was sustained, i. e., the disapproval by the owner of the contemplated hiring by the company of a certain skipper in whom he had no confidence and the owner’s alleged insistence that all the fish be delivered to the company and' not distributed to several canneries on a quota basis, had been considered and agreed upon by the parties prior to the actual transfer of control of the vessel to the company, as owner pro hac vice. The correspondence reveals that the company had accepted the owner’s suggestion concerning a skipper; further, that it was the company that insisted that all the fish be delivered to its cannery because it agreed at the very start of negotiations to extend its mortgage only if the ‘ ‘ Chinook” would “fish for us.” Under these conditions there was nothing to indicate that the company was not the owner pro hac vice at the time of the accident, and subject, therefore, to the same burden of liability for torts that attaches to an owner operating his own vessel.

Appellant urges as a ground for reversal that there was no proof of negligence on the part of defendant company and that the doctrine of res ipsa loquitur was not applicable in this case. We do not accept that view. In LeJeune v. General Petroleum Corp. (1932), 128 Cal.App. 404 [ 18 P.2d 429 ], is found a discussion of the applicability of the doctrine of res ipsa loquitur in actions brought under the Jones Act. This case also cites with approval the case of Michener v. Hutton, 203 Cal. 604 , and at page 412 [ 265 P. 238 , 59 A.L.R. 480 ], quotes from it as follows: “ ‘The courts of this state have long since adopted the rule as expressed in 1 Shearman & Redfield on Negligence, 6th ed., p. 132, viz.: “Where the

It is evident from the foregoing testimony that the winch was under the control of the employees of the company. One of the purposes of the deck control lever of the winch was to stop the operation of the winch on deck and when it was in a safe condition and properly managed it so operated; the fact that it did not operate on this occasion gave rise to an inference that the winch was not in a safe condition, which, in the absence of an explanation by the company, “afforded reasonable evidence . . . that the accident arose from want of proper care” on the part of the company. Several witnesses on behalf of the company stated that there had been no trouble with the winch prior to decedent’s death, but no

Appellant argues further that the court erred in instructing the jury on the doctrine of res ipsa loquitur in this case because (a) the complaint did not allege general acts of negligence but alleged specifically the negligence complained of, (b) the opening statement of counsel indicated that it was not the intention of plaintiff to rely upon the doctrine, and (c) the evidence fully explained how the accident occurred and the proximate cause thereof. In support of its argument that the complaint did not allege general acts of

We find no basis for appellant’s contention that plaintiff’s counsel in his opening statement indicated that plaintiff would not rely upon the doctrine. He merely enumerated the various events and actions of the fishermen aboard the vessel and the events just immediately preceding and following the death of the decedent; he described the action of the cook and the engineer and the turning off of the engine before the winch could be stopped. No attempt was made by him at that time, or at any time during the trial, by evidence or otherwise, to explain why, or in what particulars, the deck control lever did not operate or what particular negligence defendant was guilty of in maintaining a deck control lever which would not operate promptly or properly.

Nor can we agree with appellant’s contention that the evidence fully explained how the accident occurred. The evidence, as also the attorney’s opening statement, went no further than to explain to the jury the events leading up to the accident, the failure of the deck control lever to stop the

Appellant contends that the court erred in giving the following instructions, arguing that they are “wholly inconsistent and clearly contradictory”:

(a) “From the happening of the accident involved in this case, as established by the evidence, there arises an inference that the proximate cause of the occurrence was some negligent conduct on the part of defendant. ...”

(b) “The mere fact that an accident happened, considered alone, does not support an inference that some party, or any party, to this action was negligent.”

(c) “The burden is upon the plaintiff to prove by a preponderance of evidence that defendant was negligent and that such negligence was a proximate cause of injury to the plaintiff. To establish contributory negligence, the burden is upon the defendant to prove by a preponderance of evidence that the deceased was negligent and that such negligence contributed in some degree as a proximate cause of the injury.”

Instruction (a), as given by the court, added to the language quoted by appellant the following: “That inference is a form of evidence, and if there is none other tending to overthrow it, or if the inference preponderates over contrary evidence, it warrants a verdict for the plaintiff. Therefore, you should weigh any evidence tending to overcome that inference, bearing in mind that it is incumbent upon the defendant to rebut the inference by showing that it did, in fact, exercise ordinary care and diligence or that the accident occurred without being proximately caused by any failure of duty on its part.” This instruction was followed by another to the effect that the provisions of Instruction (a) constituted an exception to the general rule that the mere happening of an accident does not support an inference of negligence and that under certain exceptional circumstances the exception to the rule was authorized, setting forth the circumstances.

The jury was also correctly informed by Instruction (c), for it is elementary that the duty cast upon a defendant to overcome a prima facie case made by the application of the res ipsa loquitur doctrine in no way changes the rule as to the burden of proof. (19 Cal.Jur. 718; see, also, Holt v. Yellow Cab Co. (1932), 124 Cal.App. 385 -389-90 [ 12 P.2d 472 ].)

Instruction (b) states the general principle that the mere fact that an accident happened, considered alone, does not support an inference of negligence (White v. Sprockets (1909), 10 Cal.App. 287 , 294 [ 101 P. 920 ]), but it also goes further by stating specifically that such happening would not “support an inference that some party, or any party, to this action was negligent” (italics ours) ; and while it may be argued that Instruction (a), stating, as it does, that “from the happening of the accident involved in this case . . . there arises an inference that the proximate cause . . . was . . . some negligent conduct on the part of defendant,” and Instruction (b), stating that “the mere fact that an accident happened . . . does not support an inference that some party . . . to this action was negligent,” were conflicting, we are unable to perceive how the jury was misled thereby, or how any prejudice to appellant resulted since the doctrine of res ipsa loquitur did apply and any suggestion that it did not would have been to defendant’s advantage.

Nor do we agree with appellant’s contention that reversible error arose when the court instructed the jury as follows:

“If, under the court’s instructions, you find that plaintiff is entitled to a verdict, you will award her such sum as, under all the circumstances of the case, may be just compensation for the pecuniary loss she has suffered by reason of the death of Philip Radisich.”

“In determining that pecuniary loss, you may consider not only the financial support, if any, which plaintiff would have received from the deceased except for his death, but also the pecuniary value of the society, comfort, care, protection, and right to receive support, if any, which plaintiff has lost by reason of the death. In weighing these matters, you may consider the age of the deceased and of plaintiff, the physical

condition of deceased and of plaintiff as it existed at the time of the death and immediately prior thereto; their respective expectancies of life as shown by the evidence; the disposition of the deceased, whether it was kindly, affectionate or otherwise; whether or not he showed an inclination to contribute to the support of the plaintiff; the earning capacity of the deceased; and such other facts shown by the evidence as throw light upon the pecuniary value of the support, society, care, comfort and protection which the plaintiff reasonably might have expected to receive from the deceased had he lived.” (Italics by appellant.)

Under the interpretations which have been given to the provisions of the Federal Employers Liability Act, embraced in the Jones Act, the italicized portions of the instruction if they had stood alone might be open to objection, but we do not believe that the defendant in this case suffered therefrom for immediately thereafter the court, also at the request of plaintiff’s attorney, gave the jury the following instruction: “You are instructed that if your verdict is in favor of the Plaintiff, the damages to which the plaintiff is entitled to recover from defendant, is the financial loss, if any, resulting from being deprived of a reasonable expectation of pecuniary benefits. You may not consider mental anguish, or suffering or loss of companionship in your consideration of damages or any suffering of the deceased.” (Italics ours.) Furthermore, the record also indicates that the attorney for the plaintiff, in his opening statement to the jury, said: “I believe we will not show or attempt to show any damages by reason of loss of companionship or because of mental anguish, because under the particular Act that we are bringing this action I think the Court will instruct you in the event that you determine that the plaintiff is entitled to a verdict, you are not to fix any damages for those particular items.”

In view of the fact that the plaintiff’s attorney adhered to his declared intention and did not show or attempt to show any pecuniary loss other than that occasioned by the loss of earnings, we do not believe that the jury was misled in any manner by the giving of the questioned instructions. Certainly the amount awarded does not indicate that any improper rule of damages was adopted by the jury in arriving at its verdict.

Having in mind all the instructions and the entire record in this case we are not persuaded that the jury erred in its conclusion. “A judgment will not be reversed because

Shinn, J., and Wood (Parker), J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied June 21, 1945. Edmonds, J., Traynor, J., and Spence, J., voted for a hearing.