Moss v. Alaska Packers Assn.

70 Cal.App.2d Supp. 857 (1945) SHELTON H. MOSS, Respondent,

v.

ALASKA PACKERS ASSOCIATION (a Corporation), Appellant.

California Court of Appeals.

April 3, 1945. Henry W. Schaldach and Edward R. Kay for Appellant.

Andersen & Resner for Respondent.

MURPHY, J.

Shelton H. Moss, plaintiff and respondent, was a deck engineer on the SS "Homer Lea," a ship owned by the United States of America and operated by and through the War Shipping Administration and the Alaska Packers Association, a corporation. The latter corporation is the defendant and appellant herein. The Alaska Packers Association acted as general agent for and on behalf of the United States of America in accordance with the terms of a General Agency Agreement (Exhibits B and C).

Plaintiff and respondent, on shore leave, having had five drinks of straight scotch whiskey in a bar at Hobart, Tasmania, was struck on the head by a person or persons unknown. He required and received immediate hospitalization in Tasmania. Thereafter he was returned to San Francisco on another vessel. He then sued the Alaska Packers to recover allowances for wages, transportation, maintenance and cure, after leaving the service of the SS "Homer Lea," which he of necessity had to abandon on account of his injury. The United States of America was not joined in the suit, nor was the War Shipping Administration.

Appellant's position is that respondent Moss cannot recover allowances for wages, maintenance and cure because at the time of the injury he was not in the vessel's service, nor about its business, nor within the so-called "going and coming rule," but rather was pleasure bent.

Appellant also contends it cannot be held liable for wages, maintenance and cure because it is not the owner or operator of the vessel, but merely the general agent of the United States of America and that privity of contract, as evidenced by the shipping articles, was between the United States of America and plaintiff and respondent Shelton H. Moss, deck engineer. [70 Cal.App.2d Supp. 859]

Appellant also complains of certain instructions given by the trial court.

[1] Plaintiff and respondent was admittedly on shore leave, properly granted by the vessel's officers. In my opinion, he was "in service" while on shore leave.