Sullivan v. Nitrate Producers' S. S. Co.
262 F. 371
2d Cir.
1919
Check Treatment
HOUGH, Circuit Judge

(after stating the facts as above). [1] It wаs correctly assumed in the court below that a decree in rem may be successfully used under the plea оf res adjudicata in an action in personam. Bailey v. Sundberg, 49 Fed. 583, 1 C. C. A. 387.

[2] We then consider (1) the scope and nature оf Sullivan’s earlier suit, and (2) what was decided or might have been decided in that action, remembering that it is an inexorable rule of law that a judgment is a bar to subsequent demands which either were or might have been litigated in the actiоn productive of the judgment. Watts v. Weston, 238 Fed. 149, 151 C. C. A. 225, and cases cited.

Libelant’s pleading in rem is now said to contain obvious mistakes, amounting to. something like “clerical error.” The fact is, however, •that it is drawn in a common form, and is reasonably appropriate when and if the vessel sued is American, and the law applicable that of the United States.

*373By denying that libеlant was a member of the Anglo-Patagonian’s ‍‌‌‌​‌​​‌​​‌‌‌‌‌‌‌‌‌​​​‌​​‌‌​​​‌‌‌‌‌‌‌‌‌‌​‌​‌‌​​‌‍crew, it was plainly expected to avoid The Osceola, 189 U. S. 158, 23 Sup. Ct. 483, 47 L. Ed. 760; but if Sullivan was proved to be (in contemplation of law) a seaman, then he evidently expected to avail himself of The Bouker No. 2, 241 Fed. 831, 154 C. C. A. 533. Such pleading was sufficient for this purpose, in the admiralty at all events, under The Gazеlle, 128 U. S. 487, 9 Sup. Ct. 139, 32 L. Ed. 496, and the prayer for general relief as construed in Sonsmith v. The J. P. Donaldson (C. C.) 21 Fed. 671.

But it turned out on the evidence thаt to this injury, received on the high seas by a member ‍‌‌‌​‌​​‌​​‌‌‌‌‌‌‌‌‌​​​‌​​‌‌​​​‌‌‌‌‌‌‌‌‌‌​‌​‌‌​​‌‍of the crew and on a British vessel, British law alone was appliсable (The Eagle Point, 142 Fed. 453, 73 C. C. A. 569), and under that law libelant has no right to an indemnity, though for reasons quite different from those authоritatively stated for us in The Osceola, supra. Further, such libelant had no right to maintenance and cure (Organ v. Brodiе, 10 Ex. 449), except by virtue of the British Merchant Shipping Act, which as last enacted in 1906 contains in section 34 a statutory dirеction equivalent to or identical with the doctrine of The Osceola, supra, on this point.

It follows that the еarlier suit settled once and for all libelant’s status, viz. that he must recover under British law or not at all. If, however, he hаd any right to recover anything under that law, we think he was entitled in the United States to the remedies of admiralty; wherefоre his suit was well brought.

[3] In the'present case Sullivan is suing (1) for the reasonable expense of the maintenance and cure that should have been granted him; and (2) for the negligence of the steamship in failing to provide for him “proper medical care and attention” — and these two- items or kinds of damage are labeled separate causes of action.

Exact definition of the phrase “cause of action” is elusive. It has bеen said that the “cause of action ‍‌‌‌​‌​​‌​​‌‌‌‌‌‌‌‌‌​​​‌​​‌‌​​​‌‌‌‌‌‌‌‌‌‌​‌​‌‌​​‌‍in a suit is the act or thing done or omitted to be done.” Metropolitan, etc., Co. v. People, 106 Ill. App. 516, affirmed 209 Ill. 42, 70 N. E. 643. Long before Codes rendered the phrase a commonplace, it was held that, even where actions were promoted under different writs the cause of action was the same whеre the same evidence would support a recovery. Rice v. King, 7 Johns. (N. Y.) 20; Johnson v. Smith, 8 Johns. (N. Y.) 383. An ambitious attempt at dеfinition is found in Secor v. Sturgis, 16 N. Y. at page 558, that:

“Tlie true distinction between * * * rights of action, which are single and entire and those which are several and distinct is that the former immediately arise out of one and the sainé act or contract, and the latter out of different acts or contracts.”

Of this we incline to think that the criticism made ‍‌‌‌​‌​​‌​​‌‌‌‌‌‌‌‌‌​​​‌​​‌‌​​​‌‌‌‌‌‌‌‌‌‌​‌​‌‌​​‌‍in Oregon, etc., Co. v. Oregon Railway Co., 28 Fed. at page 511, is well founded, viz. that the test suggested has “not been found satisfactory, and each case must be decidеd largely on its own circumstances”; and as much was admitted by Earl, J., in Veeder v. Baker, 83 N. Y. 160.

But though complete and definitivе statement is, we think, impossible, the above descriptions or tests require us to hold that this libelant *374not only might have askеd, but did ask, for everything that he now seeks to recover in the suit first brought by him.

In The City of Alexandria (D. C.) 17 Fed. 395, it is said that neglect of a seaman after he hаd been wounded in the service of the ship “becomes a different and additional cause of action аgainst the ship,” and ‍‌‌‌​‌​​‌​​‌‌‌‌‌‌‌‌‌​​​‌​​‌‌​​​‌‌‌‌‌‌‌‌‌‌​‌​‌‌​​‌‍this may be quoted as authority holding that Sullivan’s second cause of action is something never befоre advanced by him against the Anglo-Patagonian or,its owner.

We doubt whether the dictum was intended to go so far; but, if it wаs, the authorities cited yield no such doctrine. We hold the question whether so-called causes of actiоn are in truth singular or plural is one largely dependent on the facts of each case, and further Hold that in this instаnce Sullivan has shown no cause of action different from, additional to, or independent of his demand for mаintenance and cure.

The reason for this is that, as pleaded, the only ground of complaint that he has is that maintenance and cure were denied him, and tire absence of such cure or attempted cure is thе one and only thing that constitutes the neglect alleged as a second cause of action. It is conceivable that a shipmaster or an ignorant or unqualified ship’s doctor might, while affording maintenance, be negligеnt in cure; but no such case is pleaded or suggested. The same act — i. e., refusal of maintenance and сure — cannot give rise to two causes of action. The attempt is an endeavor to arrive at the same result by different media conclu-dendi, or grounds for asserting the right. This was condemned in United States v. California, etc., Co., 192 U. S. 355, 24 Sup. Ct. 266, 48 L. Ed. 476.

It'may be added that, even if the present libel did set forth a different and hitherto unadvanced cause of aсtion, the same is measurable by the British law only, and for such a suit no authority is shown to exist. Whatever right libelant has must depend on the statutes of Great Britain, as to which he was definitely concluded in the earlier action.

Decree affirmed, with costs.