Mallory S. S. Co. v. Druhan
84 So. 874
Ala. Ct. App.
1920
Check Treatment
MERRITT, J.

This case was formerly before this court, being reported in 16 Ala. App. 438, 78 South. 636. It is an action in the name of Nicholas Druhan, as plaintiff, for the benefit of his insurer, the Georgia Casualty Company, to recover a sum paid by the casualty company under the terms of an insurance policy protecting the plaintiff against loss, for personal injuries sustained by a servant of the plaintiff.

In December, 1914, the Mobile agent of the defendant steamship company, Mr. Du Bois, received a letter from the defendant, advising him that the steamship Shawmut was available at Mobile on the 28th for a full cargo of ties, and instructing him to be on the lookout for the vessel and to' give her a full load and prompt dispatch. The Shawmut was a Southern Steamship Company steamship. Shortly after receipt of this letter, acting under the authority of the *368 same, Mr. Du Bois entered into a contract with the plaintiff to load the vessel. The contract was oral, and according to Mr. Du Bois, who testified on behalf of the defendant, was expressed as follows:

“The main point we discussed was the rate at which he would load her, and as well as I remember he said 3 cents a tie. I made the agreement with Mr. Druhan to load her, and the ship came in and he stevedored her. * * * Nothing was said about the Mallory Line.”

Upon the arrival of the Shawmut at Mobile, it was, for the purpose of loading, under the control and supervision of Mr. Du Bois, who continued to act under the authority of the letter referred to. As stated by him:

“I handled the ship. * * * I handled the ship for them [the defendant].”

At no time did he act as agent or under the direction of the Southern Steamship Company. The vessel was loaded by the plaintiff under the arrangement with Mr. Du Bois; ■ the bill for services rendered was presented to him and páid by check of the defendant steamship company. The defendant introduced in evidence that the defendant was handling the ship for the Southern Steamship Company, and was reimbursed for the money paid the plaintiff for stevedoring the ship by the Southern Steamship Company;. but the iury was authorized to find, as they did, that the plaintiff was loading the ship for the defendant. While the ship was thus being loaded in the port of Mobile, one of (the blocks that supported a derrick on the ship, used in the loading of the ship, gave way, causing the derrick to fall, strike plaintiff’s servant, Higgins, while he was engaged in assisting in loading the vessel, and to break his foot and otherwise injure him. The block was split, and according to the evidence of one of the witnesses was rotten. The block and derrick were furnished by the defendant, according to the testimony of one witness, and were certainly furnished by the steamship, which, as already stated, was-under the control of the defendant for the purpose of loading. The appliance had not been inspected by the plaintiff. Higgins, through his attorney, made claim against the plaintiff, and the same was settled by the casualty company. Under the terms of the contract of insurance, the casualty company was subrogated to the rights of the xjlaintiff, Druhan, and in this suit seeks to recover in the name of the plaintiff the amount paid out. The case was tried on the general issue before a jury, judgment being for the plaintiff, and defendant prosecutes this appeal.

[1] In view of the above statement of facts, the trial court did not err in allowing the following question, oyer the objection of the defendant, to be asked the witness Druhan:

“Do you know whether or not Mr. Du Bois had for a considerable time been in the .habit of contracting- for stevedores for loading vessels on behalf of the Mallory Steamship Company prior to that time?”

The subsequent testimony of Du Bois himself was amply sufficient to establish his agency for the defendant.

[2] The same is true of the question to Druhan:

“Did you know whether these stevedores did load those vessels for the Mallory Line under those contracts?”

[3] A proper predicate was laid for the admission of the testimony of the witness Young, given? on the former trial of the case. It was for the court to decide whether the witness was out of the state, and, this fact having been shown to the satisfaction of the court on evidence authorizing such a conclusion, the ruling of the trial court will not be reversed. Jacobi v. State, 133 Ala. 8, 32 South. 158.

[4, 5] The witness Norvell was properly allowed to testify that Norvell Bros, were agents of the insurance company at the time they countersigned and delivered the insurance policy, although it appeared that their power of attorney was in writing. While agency may not be proved by the mere decía-, ration of the agent, the agent is competent to testify to the fact of agency. Parker v. Bond, 121 Ala. 529, 25 South. 898. This issue was a collateral matter. Hence the rule of secondary evidence did not apply. Bunzel v. Maas, 116 Ala. 80, 22 South. 568. Moreover, the insurance company was shown to have recognized the policy as binding. Eor these reasons, the trial court did not err in allowing the introduction in evidence of the policy of insurance.

The defendant was not allowed at several points to show by witness Du Bois that the defendant had no interest in the cargo of the Shawmut, in the freight money, or in the boat. These facts were elsewhere in evidence without contradiction.

[6-10] It was incumbent upon the plaintiff to show that he was liable to his servant, Higgins, for the personal injuries sustained, that he, or the insurance company for him,, settled with Higgins to avoid a judgment, and that the amount paid was not greater than a fair compensation. The fact that the plaintiff paid the damages without requiring the claim to be reduced to judgment does not prevent him from recovering over from the defendant. The work in which the servant, Higgins, was engaged was maritime in its nature and the rights and liabilities of the parties were within admiralty jurisdiction. Yet the servant’s common-law remedies are reserved and the question of the liability of the plaintiff is determined by the common law. Peters v. Veasey, 251 U. S. 121, 40 Sup. Ct. 65, 64 L. Ed. 180. Under the *369 common law, a master is bound to exercise reasonable care and skill to furnish reasonably safe appliances, this duty being nondelegable. Chamberlain v. Southern R. Co., 159 Ala. 171, 48 South. 703; Coosa P. F. Co. v. Poindexter, 182 Ala. 656, 62 South. 104; Eureka Co. v. Bass, 81 Ala. 200, 8 South. 216, 60 Am. Rep. 152. The jury was' authorized under the evidence, as already set out, to find that the plaintiff had violated this duty and had been liable to his servant.

[11,12] The plaintiff was permitted to show, over the objection of the defendant, that, according to the general custom of the port of Mobile, where stevedores undertook to load a ship for the steamship company, the steamship company furnished the loading apparatus, including the derricks and such appliances. The contract of loading between the plaintiff and the defendant was in evidence; it was shown that the derrick and its block causing the injury were furnished by the defendant. This evidence of custom was admissible to' throw light on the proper construction of the loading contract, and to show that the derrick and the block were furnished by the defendant, not as a mere gratuity, but as a part of and in furtherance of the contract of loading between plaintiff and defendant. The customs, usages, and courses of dealings in a business may be looked to, to explain, or in the construction or interpretation of, a contract, but never to prove that a contract had been entered into. Goddard & Sons v. Garner & Bros., 109 Ala. 98, 19 South. 513; Munson S. S. Line v. Turner, 202 Ala. 574, 81 South. 76; 4 Encyc. Dig. Ala. Repts. 609.

\ [13] Therefore the evidence showed, or ¡tended to show’, that the defendant furnished ¡to the plaintiff the defective apparatus that ¡caused the personal injury, to the servant and the plaintiff’s 'financial loss; that this apparatus was furnished as a part of and in furtherance of tire contract of loading between the plaintiff and the defendant. By this contract of employment, as shown by the express terms of the contract and the manner in which the work was carried on, the defendant did not retain control of the plaintiff or his w’orkmen in the execution of the work of loading the ship. The plaintiff, and not the defendant, had the power to dictate the particular manner in which the appliances furnished were to be used and in which the laborers should do the wokk. The plaintiff was, as to the defendant, an independent contractor, and not a servant. What duty, express or implied, does an employer owe an independent contractor in reference to apparatus furnished him to be used in carrying out the particular work contracted for?

[14,15] Where there is a bailment for the mutual benefit of the parties, as for hire, there is imposed on the bailor, in the ab-sence of a special contract or representation, an obligation that the thing or property bailed for use shall be reasonably fit for the purpose or capable of the use known to be intended. 6 C. J. 1117, § 52. It has been held that the manufacturer and seller of an elevator impliedly warrants that the elevator would be suitable and safe for 'use. Otis Elevator Co. v. Gameron (Tex. Civ. App.) 205 S. W. 852. Therefore, in furnishing the derrick and block under the circumstances of this case, the defendant impliedly warranted that they would be suitable for the purpose for which they were furnished. This warranty was found to have been violated by the defendant, and this finding will not be disturbed.

[16,17] The plaintiff seeks. indemnity on account of the breach of this warranty. An employer, against whom recovery has been had for injury to his employé, may, notwithstanding his negligence in not inspecting, enforce indemnity against one who is under obligation to him, as in this case, to furnish suitable appliances, the breach of which obligation caused the injury. The employer’s negligence in failing to inspect is only passive; that of the one furnishing the appliance is active. Otis Elevator v. Cameron, supra. The exceptions to 'the rule that indemnity will not be allowed among joint wrongdoers are that a joint-wrongdoer may claim indemnity where he has not been guilty of any fault, except technically or constructively, or where both parties are at fatilt. but the fault of the party from whom indemnity is claimed was the efficient cause of the injury. Where an injury results from a violation of a duty which one owes to another, the parties are not in pari delicto.

[18] While an employer owes the duty to his employes of refraining from using defective appliances furnished by a third person under the circumstances of this case, the primary duty of furnishing safe appliances rests upon the third person, and he must indemnify the employer. Boston Woven Hose & Rubber Co. v. Kendall, 178 Mass. 232, 59 N. E. 657, 51 L. R. A. 781, 86 Am. St. Rep. 478; Alaska S. S. Co. v. Pacific Coast Gypsum Co., 71 Wash. 359, 128 Pac. 654; Fidelity & Casualty Co. of N. Y. v. Northwestern Telephone Exchange Co., 140 Minn. 229, 167 N. W. 800; Hart v. Noret, 191 Mich. 427, 158 N. W. 17, L. R. A. 1916F, 83; Pennsylvania Steel Co. v. Washington & Berkley Bridge Co. (D. C.) 194 Fed. 1011; Aberdeen Construction Co. v. City of Aberdeen, 84 Wash. 429, 147 Pac. 2; Geo. A. Fuller Co. v. Otis Elevator Co., 245 U. S. 489, 38 Sup. Ct. 180, 62 L. Ed. 422; Oceanic Steam Navigation Co. v. Compania Transatlantic Espanola, 134 N. Y. 461, 31 N. E. 987, 30 Am. St. Rep. 685. These exceptions to the general rule that no right of contribution or indemnity exists *370 in favor of one joint tort-feasor against another are recognized in Alabama. Vandiver & Co. v. Pollak, 97 Ala. 467, 12 South. 473, 19 L. R. A. 628; Huey v. Dykes, 203 Ala. 231, 82 South. 481.

[19, 20] Under the facts presented in this case, and for the reasons heretofore set out, the court did not err in giving written charges set out in appellant’s fifty-eighth and fifty-ninth assignments of error.

Affirmed.'