the linoleum floor of the cabin had been waxed by the chambermaid, contrary to his instructions.
The evidence conclusively shows that the defendant owner at no time issued any instructions with regard to waxing or not waxing the linoleum floors of this vessel. The various masters employed by the defendant on its several motor vessels had the exclusive authority to direct that the floors be waxed or that they not be waxed. Plaintiff claimed that he had directed, both by verbal order and by posting a notice on the bulletin board, that the floors of this vessel were not to be waxed while he was in command. He, nevertheless, claims that the linoleum on the deck of his cabin had been waxed. The only evidence of waxing, however, was the statement by plaintiff that as he arose after his fall, he noticed wax on his hand. There was no evidence whatsoever as to the method of waxing or as to the quantity of wax applied. The evidence does not support the conclusion that because plaintiff fell, the linoleum was excessively waxed. This court is of the opinion that the waxing of the linoleum did not per se amount to negligence, nor did it make the vessel unseaworthy. The evidence showed that the waxing of the linoleum done at various times on various vessels of the defendant was always performed in a routine manner for the purpose of assisting in keeping the vessels clean and waxing made it easier for the chambermaids to keep the floors clean. Thus, boiled down, the case is simply one wherein the master is complaining because the chambermaid on the vessel, no doubt the person of least authority, failed to carry out the orders of the plaintiff, who was in command, as to the chambermaid's routine in keeping the vessel clean. This was a matter which the defendant left solely to its vessel captains. What was said by the court in Patton-Tully Transp. Co. v. Turner, 6 Cir., 269 F. 334, at page 342, applies. Also Walker v. Lykes Bros. S.S. Co., 2 Cir., 193 F.2d 772.
If there was fault on the part of anyone, the fault was plaintiff's for not insisting that the chambermaid comply with his directions. It is not a case of contributory negligence, nor is the conclusion reached here, based upon any assumption of risk on the part of the plaintiff. As between the plaintiff and the owner defendant, the act of the chambermaid is the act of the plaintiff, not that of the owner defendant. Plaintiff, as master, had absolute authority on the issue presented, but in this case not event the chambermaid was shown to have been negligent under the facts presented.
And Now, this 23rd day of October, 1957, pursuant to the ruling of the court made at the close of the presentation of all of the evidence granting defendant's motion for a directed verdict, the Clerk is directed to enter judgment in favor of the defendant Jones & Laughlin Steel Corporation, a corporation, and against plaintiff George H. Elliott, with costs.
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