262 F. 371 | 2d Cir. | 1919
(after stating the facts as above).
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.
But it turned out on the evidence that to this injury, received on the high seas by a member of the crew and on a British vessel, British law alone was applicable (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 authoritatively stated for us in The Osceola, supra. Further, such libelant had no right to maintenance and cure (Organ v. Brodie, 10 Ex. 449), except by virtue of the British Merchant Shipping Act, which as last enacted in 1906 contains in section 34 a statutory direction equivalent to or identical with the doctrine of The Osceola, supra, on this point.
It follows that the earlier suit settled once and for all libelant’s status, viz. that he must recover under British law or not at all. If, however, he had any right to recover anything under that law, we think he was entitled in the United States to the remedies of admiralty; wherefore his suit was well brought.
Exact definition of the phrase “cause of action” is elusive. It has been 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 where 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 definition 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 decided 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 definitive statement is, we think, impossible, the above descriptions or tests require us to hold that this libelant
In The City of Alexandria (D. C.) 17 Fed. 395, it is said that neglect of a seaman after he had been wounded in the service of the ship “becomes a different and additional cause of action against the ship,” and this may be quoted as authority holding that Sullivan’s second cause of action is something never before advanced by him against the Anglo-Patagonian or,its owner.
We doubt whether the dictum was intended to go so far; but, if it was, the authorities cited yield no such doctrine. We hold the question whether so-called causes of action are in truth singular or plural is one largely dependent on the facts of each case, and further Hold that in this instance Sullivan has shown no cause of action different from, additional to, or independent of his demand for maintenance 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 the 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 negligent in cure; but no such case is pleaded or suggested. The same act — i. e., refusal of maintenance and cure — 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 action, 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.