was a deck maintenance man, and took his orders from the chief mate, not from Nantau. Nowery had had very few contacts with Nantau aboard ship, except to pass the time of day.
Where the injuries complained of were the result of an assault, the Supreme Court has held the employer liable, under the Jones Act, when the assault was committed in the course of the discharge of the assailant's duties, and in furtherance of the work of the employer's business, even though the assault was in excess of the authority conferred by the employer upon the assailant. Jamison v. Encarnacion; 281 U.S. 635, 50 S. Ct. 440, 74 L. Ed. 1082. The Court said that under those circumstances, the assault was negligence on the part of the assailant, within the meaning of the Act. In Alpha Steamship Corporation v. Cain, 281 U.S. 642, 50 S. Ct. 443, 74 L. Ed. 1086, the Supreme Court allowed recovery under the Jones Act for an assault committed upon a seaman by his superior, who was authorized to direct the seaman about his work, and who, for the purpose of reprimanding the seaman for tardiness, struck him with a wrench and seriously injured him.
In Lykes Bros. S.S. Co. v. Grubaugh, 5 Cir., 1942, 128 F.2d 387, the rule of Jamison v. Encarnacion, supra, and Alpha Steamship Corporation v. Cain, supra, was stated thus (at 128 F.2d 391): 'That the employer may be liable under the Jones Act only when the assault is committed by one having authority over the person assaulted and then only when it is committed in the course of the conduct of the master's business.' The Court further noted, at 128 F.2d 391: 'No case has held a steamship company liable for an assault committed * * * by the head of one department upon the head or an employee of another department over whom the assailant has no authority of direction or control. None has held the master liable where * * * the assault occurred as the result of anger over matters having nothing to do with the exercise, over the assailed, of authority delegated by the master to the assailant in the discharge of duties with which the master had charged him.' See also Nelson v. American-West African Line, Inc., 2 Cir., 1936, 86 F.2d 730, certiorari denied 300 U.S. 665, 57 S. Ct. 509, 81 L. Ed. 873; Brailas v. Shepard S.S. Co., 2 Cir., 1945, 152 F.2d 849; Yukes v. Globe S.S. Corporation, 6 Cir., 1939, 107 F.2d 888.
In the light of these decisions, I think that, in the instant case, there was no basis, in law, for a finding that defendants are liable to Nowery on the theory that Nantau, when he entered the barroom where the fight occurred, was acting 'as an officer of the ship.' As I have stated, that was one of the two theories on which the jury were instructed that they could find for the plaintiff. Nantau was not Nowery's superior officer; and there is nothing to connect the assault with any exercise of authority over Nowery, or with any discharge of a duty which defendants, through the master, had entrusted to Nantau. It may be argued that Nantau had 'business' with Evans in coming into the barroom. But he had no business whatever with Nowery; and whatever 'business' Nantau may have had with Evans had been transacted before the fight started. Nantau had had his say, and Evans had gotten up and walked away, before Nowery interjected his remarks.
I am convinced, however, that the second theory of liability which was submitted to the jury stated the law correctly, and that there was evidence to support a recovery based upon it. The Court instructed the jury that they could find for the plaintiff if Nantau was a person of cruel, brutal and inhuman nature, one known to give vent to a wicked disposition by violent and uncalled for assaults upon others, and that his disposition was known, or should have been known, to the master of the vessel. It has been held, under the Jones Act, that the tolerance of such an individual among the crew constitutes negligence on the part of the vessel's operators. Kyriakos v. Goulandris, 2 Cir., 1945, 151 F.2d 132; Koehler v. Presque-Isle Transp. Co., 2 Cir., 1944, 141 F.2d 490. This same basis of liability has been called 'unseaworthiness' under the general maritime law. The Rolph, 9 Cir., 1924, 299 F. 52.
Without going into the evidence in too great detail, I will say that, in the instant case, there was evidence that Nantau had been the perpetrator of at least one brutal assault upon a member of the crew prior to the assault upon Nowery. There was also evidence that he was of a belligerent nature. In short, there was sufficient evidence to support a finding that Nantau's disposition fitted the description which would impose liability upon defendants, and that the master knew, or should have known, of Nantau's tendencies. Defendants did not call the master as a witness, to deny that he had any knowledge of Nantau's disposition; and the Court charged the jury that defendants' failure to call the master would support an inference that, if he had been called, his testimony would have been unfavorable to defendants. Defendants contend that the Court should have also charged the jury that plaintiff's failure to call additional witnesses who had knowledge of the prior assault upon a crew member would support an inference that their testimony would have been unfavorable to plaintiff. However, I am not aware that such an inference can arise from failure to call a witness simply to corroborate what has already been testified to by other witnesses for the plaintiff. Defendants also point out that plaintiff did not prove that any official complaint concerning Nantau's behavior was made to the master of the vessel until after the assault of Nowery. I can see little merit in that argument, because it completely overlooks the fact that the master might well have acquired knowledge of an undesirable situation other than by having someone call his attention to it.
Defendants also contend that plaintiff cannot recover either damages or maintenance and cure because the evidence clearly showed that he had provoked the assault which resulted in his injuries. I cannot say that, in law, the words which Nowery used in addressing Nantau constituted provocation for a physical attack. Under the charge of the Court, the jury could not have found in plaintiff's favor on the question of damages unless they also found that he did not provoke the assault, and on the issue of maintenance and cure, the Court also found as a fact that Nowery did not provoke the attack.
Finally, defendants contend that plaintiff cannot recover either damages or maintenance and cure because the injuries were sustained by reason of his own wilful misbehavior -- namely, intoxication. Here again, the triers of fact found the facts to be otherwise, and I can see no legal error in their findings. Cf. Barlow v. Pan Atlantic S.S. Corporation, 2 Cir., 1939, 101 F.2d 697; The S.S. Berwindglen, 1 Cir., 1937, 88 F.2d 125; Lortie v. American-Hawaiian S.S. Co., 9 Cir., 1935, 78 F.2d 819.
I think that the foregoing discussion, while it has been directed primarily to the question of defendants' liability for damages under the Jones Act, will also dispose of any pertinent objections to plaintiff's recovery on the cause of action for maintenance and cure. I have decided that, when Nowery sustained his injuries, he was on defendants' business. Therefore, his right to maintenance and cure could be defeated only if he had been guilty of wilful misconduct, or had provoked the assault upon himself. The Court, sitting as a jury, found that Nowery had not so disqualified himself, and there was ample evidence to support that conclusion. As to the cause of action for maintenance and cure, defendants' motions for judgment n. o. v. and for a new trial are denied.
As to the cause of action for damages under the Jones Act, inasmuch a as the jury were instructed that they could find for plaintiff on either one or two theories, one of which would not support a recovery under the facts of the case, although the other would, defendants' motion for a new trial is granted, and defendants' motion for judgment n. o. v. is denied.