Willey v. ALASKA PACKERS'ASS'N. , 9 F.2d 937 ( 1926 )

KERRIGAN, District Judge.

This is a suit brought by the executor of thp last will and testament of I.'C. Kleppe, for damages for the death of the latter, who, on April 3,1922, shipped as a seaman on respondent’s vessel, the Star of Finland, for an Alaskan fishing voyage. The articles contained the following provision: “All parties of the second -part, while engaged under this contract, shall receive medical and surgical attendance and medical and surgical necessities.”

As a party of the second part, Kleppe undertook the management of a small fishing tender called the Goney, which was operated near Alitak, Alaska. In July, while cleaning her bottom, he fell overboard, and as a result contracted a severe cold. This was followed by a bad cough, from which death by tuberculosis eventually followed. The contention of his executor is that tuberculosis is an arrestable disease, and that in this ease it was directly traceable to a cold, which would have been cured if the deceased had been furnished with timely medical attention.

This contention was made during his lifetime, in an action for damages in the superior court of the state, of California, in and for the city and county of San Francisco, where in a trial before a jury judgment was rendered for the respondent. Willey v. Alaska Packers’ Association (Cal. App.) 238 P. 1087. Of course it cannot again be made in this court, if the same cause of action is involved.

The theory of libelant’s ease appears to be that respondent’s failure to perform the duty which it owed to Kleppe to furnish him with medical attention and necessities not only operated injuriously upon him, but also upon the persons on whose behalf this suit is brought. Section 377, Code Civ. Proe. Cal., it is argued', does not merely enable an administrator or executor to enforce claims for personal injuries to his decedent, as is done by some statutes, but creates new and entirely independent rights, to which he does not succeed, but which on behalf of other persons he is empowered to enforce.

That section, however, by its express terms is applicable only to cases of “death * * * caused by the wrongful act or neglect of another”; in other words, to eases of tort and not of contract. Thus construed, it has no possible reference to the instant case, where no positive wrong on the part of respondent has been alleged, and where the. only affirmative duty shown to have been omitted was wholly contractual. The fact that this duty, in addition to being within the terms of a written contract, also was imposed by federal statute, in no way changes the situation. As I held in Cresci v. Standard Fisheries Co., 7 F.(2d) 378, a vessel owner’s-statutory obligation to furnish maintenance and cure is only one of the incidents which the law affixes to every contract of marine employment, and breach of it creates a liability which in its essence is wholly dependent on contract. The libel, therefore, does, not state a cause of action for death “by wrongful act or neglect,” within the meaning of the Code section above referred to.

Taken as an assertion of libelant’s rights upon the contract, it must fall before the defense of prior adjudication, which respond-' ent sets up. The judgment of the superior court upon this question is conclusive, for a personal representative can have no rights superior to those of his decedent, with whom he necessarily is in privity. Since Kleppe; was barred by it, its estoppel must also be held to run against his executor. (

But, treating the case as hitherto undetermined, on the merits respondent likewise,' is entitled to prevail. There is an abundance' of evidence in the record, to the effect that Kleppe’s death resulted, if not from his own' negligence, in any event from the fault of no one else. Such was the finding of the jury in the state court, where similar evidence was offered, and such, unaffected by its deei-' sion, is mine. Though it manifestly is the duty of a master (or owner) to furnish proper medical attention and necessities to the seamen over whom he has charge, whether they request it or not (The Iroquois, 194 U. S. 240, 246, 24 S. Ct. 640, 48 L. Ed. 955), where a seaman himself does not consider himself sick, and makes no complaint whatever, this obligation cannot be held so extensive as to require inquiry as to latent ailments. This was the holding of the District Court of Appeal in Willey v. Alaska Packers’ Ass’n, supra, and it is a proper statement of the law.

Other points made by respondent do not require my consideration. On technical grounds, and on tho facts as well, the libel herein must be dismissed, and a decree entered against the libelant, without costs.

It is so ordered.