167 N.E. 422 | NY | 1929
Defendants' testator was an employing stevedore. Plaintiff was one of his employees who was assaulted by the foreman or gang boss in charge of a gang engaged in loading a barge in the East river. The evidence justifies the inference that the foreman, in an effort to carry out his orders to keep the men busy and in furtherance of the employer's work, assaulted plaintiff, an employee subject to his orders, to make him hurry up with the work in which he was engaged. No question of negligence is in the case. The trial judge allowed a recovery if the jury found that "the assault was committed in the furtherance of the master's work." (Mott v. Consumers Ice Co.,
The cause of action having arisen upon the navigable waters of the United States, is to be disposed of under the principles of maritime law. (International Stevedoring Co. v. Haverty,
The learned counsel for the appellant with admirable candor concedes that no fault can be found with the court below for adhering to the rule as thus stated, but he asks this court to change the law "to establish a better rule of conduct and give place to a higher degree of justice." Long and firmly established doctrines are not so easily disposed of, although the authority of recent cases of first impression has at times been disregarded in order to conform the decisions of the court to the actualities of industrial and business life. (Fitzwater v. Warren,
The admiralty and maritime law is subject to change by Congress. Congress has acted and the Supreme *222 Court of the United States has said broadly (InternationalStevedoring Co. v. Haverty, supra) that "the statutes do away with the fellow-servant rule" as applied to longshoremen engaged in stowing freight in the hold of a ship within the admiralty and maritime jurisdiction of the United States. We would be content to give this declaration its full face value were it not for the fact that the case was one of the negligence, rather than the misconduct, of a foreman. It thus becomes necessary to examine the course of legislation on the subject to determine its bearing on our decisions.
The fellow-servant rule is generally stated in terms of negligence only, although misconduct of a co-employee is also within its scope. By the Seamen's Act of March 4, 1915 (38 Stat. ch. 153, § 20), it was provided that "in any suit to recover damages for any injury sustained on board vessel or in its service seamen having command shall not be held to be fellow-servants with those under their authority." This language proved to be inadequate to substitute the common-law measure of liability for personal injuries for the maritime rule of limited liability in the case of seamen (Chelentis v. Luckenbach S.S.Co.,
This case differs materially from Davis v. Green
(
The judgment of the Appellate Division should be reversed and that of the Trial Term affirmed, with costs in this court and in the Appellate Division.
CARDOZO, Ch. J., CRANE, LEHMAN, KELLOGG, O'BRIEN and HUBBS, JJ., concur.
Judgment accordingly.