HORNEY, J., delivered the opinion of the Court.
This is an appeal from a judgment entered by the Superior Court of Baltimore City on the verdict of a jury in favor of Frank W. Jasper (Jasper or employee) against the Arundel Corporation (Arundel or employer). The action involved an injury sustained by Jasper from a fall on board a dredge belonging to Arundel. The suit was brought under the provisions of 46 U.S.C.A., § 688, usually referred to as the Jones Act. The first count alleged negligence under the Jones Act. The second charged unseaworthiness under the general maritime law.
On July 29, 1957, the employee was working as an oiler on the dredge Governor Herrick. The employee — because he disregarded the old sea adage: "One hand for the ship and one for yourself," which he probably had never heard of — was injured when a loose and slippery step of a ladder tilted while he was descending to the lower engine room, causing him to fall to the deck below and injure his back. There was evidence from which a jury could find that the employer was negligent in allowing the ladder to remain in a dangerous condition.
The Governor Herrick was a non-registered, non-self-propelled dredge, approximately 132 feet long and 52 feet wide, with a 12-foot draft at the bow, and a 10-foot 6-inch draft at the stern. It contained steam-driven machinery for the purpose of operating the dredging bucket and equipment. It depended on tugboats for all travel except when the bucket was touching bottom, when, by exerting pressure on the bottom
On July 15, 1957, the dredge commenced work on the Baltimore Harbor Tunnel Project and was thus engaged on July 29, 1957, the date of the accident. At that time the dredge was digging backfill sand off of Wagner's Point for use in covering the newly laid tubes of the tunnel. The dredge would transfer the silt or sand dug from the bottom to scows which would dump the material on the tubes. While so engaged, the dredge was approximately 600 feet from shore in about 14 feet of water.
The employee was employed on 8-hour shifts. He lived at his home in Baltimore and traveled each day to the dredge by means of a crewboat. He never slept on the dredge although there were quarters on board for the crew. He would eat at the crew's mess when a mealtime occurred during the course of his shift but he paid for such meals. He had worked for the employer for approximately eighteen months prior to the accident. Originally a handyman, he had engaged in substituting for deckhands who were off duty, but after a layoff, he began working as an oiler on the Governor Herrick as well as the dredge Maryland. During the entire period he had worked only in Baltimore Harbor. Prior to then he had been a truck driver and had never worked on the water. He did not have seaman's papers. His duties as an oiler consisted of oiling the dredging machinery in the engine room. He took his orders from the chief engineer. If the dredge were to be moved to another location outside Baltimore, he could accompany it as part of the skeleton crew which was usually drawn from the older, more experienced
Title 46 U.S.C.A., § 688 [the Jones Act] provides in part:
A seaman may institute an action under the Jones Act in a state court for the negligence of his employer resulting in personal injury. If he does, he would have a right of trial by jury, and all statutes of the United States modifying or extending the common law right or remedy in cases of personal injury to railway employees apply as if suit had been brought in a Federal court. The seaman has the burden of proving negligence, but — since the doctrine of comparative negligence is applicable — his contributory negligence would only subject him to a reduction of the damages allowed in proportion to the amount of the negligence attributable to him. The seaman is also excused from any assumption of risk. Curtis Bay Towing Co. v. Dean, 174 Md. 498, 199 A. 521 (1938); Farrell Lines, Inc. v. Devlin, 211 Md. 404, 127 A.2d 640 (1956).
The employer contends that the employee was not a seaman within the purview of the Jones Act, and that his remedy is limited to the Longshoremen's and Harborworkers' Compensation Act [33 U.S.C.A., §§ 901-950]. In 1926, the Supreme Court in International Stevedoring Co. v. Haverty, 272 U.S. 50 (1926), held that a longshoreman in the employ of a stevedoring company was a seaman and was entitled to recover under the Jones Act, since the work performed by such men was a maritime service formerly performed by a ship's crew. However, in 1927, the Longshoremen's and Harborworkers' Compensation Act was enacted. This act specifically excluded the "master or member of a crew" of a
The Bassett case, supra, stated that whether or not an employee is "a member of a crew" turns on questions of facts and that, if a finding on this question has evidence to support it, the finding is conclusive. This decision, however, appears to have been temporarily narrowed by the Supreme Court in Swanson v. Marra Bros., Inc., 328 U.S. 1 (1946), which upheld the dismissal of a longshoreman's complaint by stating that recovery is available under the Jones Act only "to the members of the crew of a vessel plying in navigable waters," and in Desper v. Starved Rock Ferry Co., 342 U.S. 187 (1952), where it was held that a petitioner was not a seaman despite the finding of the jury in the District Court that he was in that category.
Nevertheless, in Summerlin v. Massman Const. Co., 199 F.2d 715 (C.A. 4th Cir., 1952), where the facts were quite similar to the facts in the instant case, Judge Soper for the Court, ruled that a fireman on a floating derrick anchored in the York River and pouring concrete into forms incident to building a bridge across the river could be considered to be a seaman under the Jones Act. In the Summerlin case the floating derrick — which had no sleeping quarters for the crew members — had to be moved in the water from time to time
And in Texas Company v. Gianfala, 222 F.2d 382 (C.A. 5th Cir., 1955), the decedent was a boilerman working aboard a submersible drilling barge which was resting on the bottom of a bay. The barge was moved from one location to another about once a year. The duties of the decedent consisted of firing the boilers and, in the event that the barge was moved, of opening the valves that raised it. The facts were uncontroverted. The jury returned a verdict for the widow of the decedent. The Court of Appeals of the Fifth Circuit reversed, holding that the evidence was insufficient to justify such a finding in that the decedent was a member of a drilling crew and not a member of a ship's crew. The Court also held that the vessel was not in navigation. The Supreme Court reversed the Fifth Circuit in a memorandum opinion [Gianfala v. Texas Company, 350 U.S. 879 (1955), rehearing denied 350 U.S. 960 (1956)], although the facts were uncontroverted. In so doing, the Supreme Court cited the Bassett case, supra, the Summerlin case, supra, the Wilkes case, supra, and the Gahagan case, infra.
The Supreme Court, however, removed any doubt as to its position in this area in Senko v. LaCrosse Dredging Corp., 352 U.S. 370 (1957). In that case the petitioner was employed as a handyman to assist in dredging operations in a slough dug to by-pass a rocky section of the Mississippi River. The dredge was never moved during the course of the petitioner's employment, although it was moved from time to time as the work progressed. The petitioner was a member of the Common Laborers' Union which sent him to the defendant dredging company as a laborer. His duties entailed carrying supplies from the shore to the dredge, cleaning up the dredge, filling the water cooler, cleaning the lights and placing them when the construction work continued at night, and taking
After stating that a jury could reasonably have believed that the petitioner would have the responsibilities of a deck hand in the event that the dredge were moved, the Court stated at page 374:
In the next term, the Supreme Court decided two more cases in this area. In Grimes v. Raymond Concrete Pile Co., 356 U.S. 252 (1958), the petitioner sought damages for injuries suffered while being transferred at sea in a Navy life ring from a tugboat to a "Texas Tower" which the respondents were constructing under a Government contract. The petitioner lived on the tower and kept it in condition by operating air compressors, generators and pumps. The District Court directed a verdict for the respondents, indicating its view that the evidence created a fact question on the issue as to whether the petitioner was a crew member, but holding that the petitioner's exclusive remedy was under the Defense Bases Act [42 U.S.C.A., §§ 1651-1654]. The Circuit Court held that the Defense Bases Act did not provide an exclusive remedy, but affirmed the District Court on the ground that the evidence was not sufficient to create a factual question as to whether the petitioner was a crew member. The Supreme Court remanded the case holding that the petitioner's evidence presented an evidentiary basis for a finding by a jury as to whether or not the petitioner was a member of the crew of a vessel.
In Butler v. Whiteman, 356 U.S. 271 (1958), the decedent was employed as a laborer doing odd jobs around the wharf of the respondent. The employee disappeared after being last seen running between a barge and the tug. On the morning of the accident he had been engaged in cleaning the boiler. For some months before the accident the tug had been withdrawn from navigation because it was inoperable. During the entire year the tug had neither captain nor crew and reported no earnings. At the time of the accident the tug was undergoing rehabilitation preparatory to a Coast
There has been much speculation as to whether all three tests hereinbefore referred to are still required in order to decide whether a petitioner can recover under the Jones Act after the Senko decision. See Gisevius and Leppert, Modern Maritime Workers, 9 Loyola L. Rev. 1 (1958). See also the subtopic entitled "The Elusive `Crew Member'" of the comment entitled "Injured Harborworkers," 67 Yale L.J. 1205, 1229 (1958). At least one case seems to have decided to ignore the former requirements that there be a vessel in navigation and that the worker be aboard primarily to aid in navigation, and states that the real test is whether the claimant is more or less permanently employed aboard the vessel in a capacity which contributes to the accomplishment of her mission. Perez v. Marine Transport Lines, 160 F.Supp. 853 (E.D. La., 1958). Other cases, in form at least, seem to rely on all of the requirements, but leave the determination as to whether the petitioner had fulfilled them to the trier of the facts. Brannan v. Great Lakes Dredge & Dock Co., 91 N.W.2d 166 (Minn., 1958); Nelson v. Greene Line Steamers, supra. We agree that the three requirements should be considered by the jury. What tests shall be applied is a matter of Federal law.
In the case now before us the employee fulfilled the tests sufficiently to enable the jury to find that he could recover under the Jones Act. The dredge was in navigable waters in Baltimore Harbor, even though it was outside the shipping lanes at the time of the accident, and was engaged in supplying fill for the tunnel which had been constructed under the ship channels in the harbor. Cf. Senko v. LaCrosse Dredging Corp., supra. The employee, who was a regular worker on the dredge and had been for eighteen months, had a permanent
In addition to claiming that the trial court erred in its instructions to the jury with reference to the past and future activities of the dredge and the possibility that Jasper might be employed at other times and places, hereinbefore alluded to and sufficiently answered [Senko v. LaCrosse Dredging Corp., supra], Arundel also contends that the trial court did not properly state the requirements of the law with respect to recovery under the Jones Act. It is true that the instructions did overemphasize what was necessary to support a finding of negligence on the part of the employer, a fact of which there appears to have been ample proof and was virtually undisputed. It is likewise true that the instructions with respect to the tests that must be met in order to prove that the employee was a seaman or a member of a crew were stated in a somewhat haphazard fashion. There is also no doubt that it would have been better had the court set out the essential requirements in a more logical and methodical sequence, but we have often ruled that a trial judge should not be "put in a strait jacket" with respect to jury instructions. If such instructions "fully and comprehensively" cover the question or point of law involved that is sufficient. Casey v. Roman Catholic Arch., 217 Md. 595, 612, 143 A.2d 627 (1958), and the cases therein cited. Moreover, in the present case, we cannot overlook the fact that the trial judge was required to instruct the jury on points or questions of law, which, it is apparent, are not yet finally and completely clarified and settled.
In reviewing the instructions, we find that the essential requirements were included therein. The court instructed the jury that it must find whether the dredge "was a vessel engaged in work on navigable waters." Later, the jury was
Finally, there is no merit in Arundel's third contention that the admission of hearsay evidence — consisting of the somewhat humorous exchange of quips between the chief engineer and the company doctor — had prejudicially affected the amount of the verdict. During the course of the trial Jasper testified that when he was released by the company doctor he was told to report for work. He promptly telephoned the engineer and told him that he was ready to come back to work though he was still wearing a corset. The engineer informed him that the company was "not running a convalescent home." When the employee returned to the doctor and told him what the engineer had said, the doctor advised him to tell the engineer that he was "not running a workshop * * * either." This "relayed" colloquy between two of the employees of the company instead of being inadmissible hearsay testimony was in fact admissible as "verbal acts." See Bowie v. Martin, 199 Md. 58, 64, 85 A.2d 786 (1952). Since it is assumed that the person who answers a call at his place of business is the person he purports to be, the telephone conversation of the employee, who made the call, was admissible.
The judgment will be affirmed.
Judgment affirmed, the costs to be paid by the appellant.