Benson v. Goodwin

17 N.E. 517, 147 Mass. 237, 1888 Mass. LEXIS 84

Opinion

W. Allen, J.

The plaintiff and the mate were employed by the same master in a common service. They were engaged in getting up the anchor, under the order of the captain to the mate to get the vessel under way, the mate having the direction of the work, and the plaintiff acting under his orders. Unless the case is an exception to the well established rule in this Commonwealth, the plaintiff and the mate were fellow servants. See Rogers v. Ludlow Manufi. Co. 144 Mass. 198, and cases cited.

The plaintiff contends that the case of mate and common seaman on a merchant vessel is an exception. We can see nothing in the evidence reported which excepts this case from the rule applied to a superintendent of work and one working under his orders. Peterson v. The Chandos, 4 Fed. Rep. 645, 649, Daub v. Northern Pacific Railway, 18 Fed. Rep. 625, and Sullivan v. The Neptuno, 30 Fed. Rep. 925, are cited to sustain the ruling of the court, that a common sailor and a mate are not fellow servants. The first case contains on this point dicta only of Deady, J.; the second case contains a report of an oral charge to a jury by the same judge, which expressly assumes the reponsibility of instructions against the admitted probable weight of authority; the third case was against the owners of a vessel, one of whom was the master, for negligence of the master.

Whether a person who was taking a run from Bath to New York as a “ sailor or runner,” without signing shipping articles, would be a common sailor within the meaning of such a rule, we cannot decide, because we do not find any such rule. See Halverson v. Nisen, 3 Sawyer, 562; Olson v. Clyde, 32 Hun, 425; The City of Alexandria, 17 Fed. Rep. 390; Malone v. Western Transportation Co. 5 Bissell, 315; Mathews v. Case, 61 Wis. 491; Loughlin v. State, 105 N. Y. 159; Johnson v. Boston Tow-Boat Co. 135 Mass. 209.

If we are asked to establish a special rule, applicable only to mates of vessels and common sailors, on the ground of the peculiar relations between them, the existence and particulars of those relations must be shown. The evidence in the case at bar discloses only facts which, under the decisions of this court, show that the mate and the plaintiff were fellow servants of the defendant.

¡Exceptions sustained.