Opinion
No. 46 C 1397.
February 14, 1950. Amended Judgment March 19, 1952.
Lord, Bissell Kadyk, Chicago, Ill., for plaintiff.
Branand Whitney, Chicago, Ill., for defendant.
This is a proceeding in admiralty under the Jones Act, 46 U.S.C.A. § 688. The libel alleges that libelant was injured on August 23, 1944 while employed as a fireman aboard the steam-powered tanker S.S. Mission Santa Maria, which was owned at the time by the respondent, acting through the War Shipping Administration. Respondent denied the allegations of the libel and, issue having been joined, a trial of the cause was had upon the merits, after which the matter was taken under advisement by the Court upon the briefs of the parties.
Although respondent strongly contends that the injuries never occurred, the Court is of the opinion that the great weight of the credible evidence preponderates in favor of libelant's contentions. It appears from the testimony that it was one of the duties of libelant as a fireman to change the burners on the ship's boilers during the course of his watch. At the time of the injury, he was engaged in changing the upper starboard burner of the starboard boiler. In order to change said burner, it was necessary for the libelant to stand on a raised platform or catwalk approximately three feet above the floorplates of the fireroom and at a point where, directly behind him, were located various valves, pipes and other apparatus. There was no guard rail at this point.
It further appears from the testimony that members of the engineering crew had experienced difficulty while changing burners for about three weeks prior to the injuries to libelant, in that oil, clinkers and flame would spurt out of the channels from which the burners were removed. This matter had been reported to libelant's superior officers, but no effective means were devised to remedy the condition. At the particular time in question, an unusually large amount of oil and flame shot out of the channel as libelant removed the burner. Instinctively, and to avoid being burned, he stepped backward and fell into the unguarded bilge, the fall rendering him unconscious. He reported his injuries to his superior officer and to the ship's purser shortly after the accident occurred. Several days later the ship reached the port of Balboa, Panama Canal Zone, where libelant entered the Gorgas Hospital for examination. The examining physician made the following diagnosis: "(1) Sprain, right knee; (2) Contusion, occipital region of head; (3) Sprain, severe, lumbar region of spine." Libelant completed the voyage to Australia and back. Upon the ship's return to Balboa, he was certified as unfit for duty and was discharged on October 26, 1944. Since that time he has received treatment at various hospitals, and still complains of a sore knee and back, dizziness and "black-outs" from the head injury.
It is clear that the respondent was guilty of negligence both in providing libelant with defective appliances and in failing to provide him with a safe place to work. Certainly, a boiler burner which leaks oil, thereby causing a flame to shoot forth when the burner is removed, is a defective piece of equipment. It is uncontroverted that libelant brought this condition to the attention of his superior officers prior to the time he was injured. This defective appliance, coupled with the lack of an adequate guard rail around the bilges at that point, constitutes the proximate cause of libelant's injuries. And respondent's contention that libelant is precluded from recovery for the reason that he knew of the condition of the burner and that he acted precipitously in leaping backwards from the flame, is unavailing. Assumption of risk is no longer a defense in maritime cases, and the rule is also well established that a seaman is bound to work with the equipment and appliances which his employers furnish to him. "It is the duty of a shipowner or master to supply a seaworthy vessel for its employees and this does not depend on the exercise of reasonable care, but is absolute. The H.A. Scandrett, 2 Cir., 87 F.2d 708. A seaman does not assume the risk of injury even from obvious dangers if the proximate cause thereof is the failure of the shipowner or master to supply and keep in order proper appliances appurtenant to the ship and the same rule applies for failure to provide a safe place in which to work. Cleveland Cliffs Iron Company v. Martini, 6 Cir., 96 F.2d 632; Socony-Vacuum Oil Company v. Smith, 305 U.S. 424, 59 S.Ct. 262 [ 83 L.Ed. 265]." The Seeandbee, 6 Cir., 102 F.2d 577, 581.
The testimony of the libelant and the medical experts sufficiently indicates that there presently remains some disability from the injuries incurred. Admittedly, a previous back injury might well contribute to the present condition, but that injury was at least aggravated by the accident which forms the basis for this cause of action. The Court is of the opinion, however, that the libelant is a chronic malingerer and that, although his present disability is partly due to trauma, it is in the main exaggerated.
The Court, therefore, finds the issues for the libelant and thereupon enters judgment in his favor in the sum of $5,000, in which amount is included recovery for the injuries, maintenance, cure and wages for the remainder of the Voyage subsequent to libelant's discharge.
Amended Judgment.
This action was instituted in admiralty to recover damages (1) under the Jones Act, 46 U.S.C.A. § 688 for injuries sustained by libelant on August 23, 1944, and (2) for wages, maintenance and cure. After trial of the cause, I found the issues for libelant in a written opinion and entered judgment for libelant in the sum of $5,000. Upon appeal by the libelant, the Court of Appeals vacated the judgment and remanded the cause, 7 Cir., 187 F.2d 933, 938, with the following order: "So that adequate findings of fact and conclusions of law may be entered in this cause, the judgment appealed from will be vacated and the cause remanded, with directions to the district court to make such adequate additional findings on the question of libelant's damages as the evidence supports, and to make conclusions of law wherein the award for such damages is fixed in an amount adequate to indemnify libelant for wages, maintenance and cure as well as for damages for his injuries under the Jones Act, as indicated in this opinion, and to enter thereafter a judgment in favor of libelant in conformity with such amended findings of fact and conclusions of law."
The evidence shows that the physicians performed only part-time service for the plaintiff company. During the years in question, they maintained private practices to which most of their time was devoted. They were free to leave the company premises even during the hours they were scheduled to work, if an emergency case in their private practice required their presence. The compensation they received from the company was only a fraction of their total incomes during the years in question.
The Collector points to the company's investment in facilities and the physicians' reports to the company which were made on forms supplied by it, as indicative of an employer-employee relationship. It must be recognized, however, that some organization was necessary to carry out the contractual undertaking. The acts to which the Collector refers were directed to that end.
Indeed, the Collector's reliance upon the Treasury Regulations (106, Section 402.204) as to who are employees is rather tenuous when the language of the regulation is fairly considered. To quote the language of that regulation intended to supplement and explain the provision of the Act, I think the following will be illustrative:
"Generally such relationship exists when the person for whom services are performed has the right to control and direct the individual who performs the services, not only as to the result to be accomplished by the work but also as to the details and means by which that result is accomplished. That is, an employee is subject to the will and control of the employer not only as to what shall be done but how it shall be done. * * * In general, if an individual is subject to the control or direction of another merely as to the result to be accomplished by the work and not as to the means and methods for accomplishing the result, he is an independent contractor. * * *
"Generally, physicians, lawyers, dentists, veterinarians, contractors, subcontractors, public stenographers, auctioneers, and others who follow an independent trade, business, or profession, in which they offer their services to the public, are independent contractors and not employees."
These excerpts from the Treasury Regulation interpreting the Tax Act clearly seem to me to exclude the relationship here from the incidence of the tax.
Finally, the Collector attaches some significance to the fact that two of the physicians took out social security cards, and some received turkeys at Christmas time. These acts hardly are determinative of an employer-employee relationship. The physicians' or the company's erroneous belief that the tax applied to them is not binding, and the traditional generous Christmas spirit carries no economic implication of employee relationship.
For the foregoing reasons, I am of the opinion that the taxpayer is entitled to the refund. Accordingly, judgment may be entered in the amount prayed and stipulated.