Williams v. Moran, Proctor, Mueser & Rutledge
| Decision Date | 30 April 1962 |
| Parties | The Libels in personam of Betty Marie WILLIAMS, as Administratrix of the Estate of Troy Ford Williams, Deceased; of Kenneth Philhower, as Administrator of the Estate of Harry M. Shaffer, Deceased; of Adele Giurastante, as Administratrix of the Estate of Domenic Vincent Giurastante, Deceased; of Connie Wolford, as Administratrix of the Estate of Larry Wolford, Deceased; of Edna C. Kovarick, as Administratrix of the Estate of Wilbur L. Kovarick, Deceased; of Janice Lynne Jones, as Administratrix of the Estate of Leland H. Jones, Deceased, Libellants, v. MORAN, PROCTOR, MUESER & RUTLEDGE, partnership consisting of Carlton S. Proctor, William H. Mueser, Philip C. Rutledge, Paul M. Wentworth and Robert C. Johnston, individually and as a joint venturer with Anderson-Nichols & Company, and against each of said partners individually and as a joint venturer with Anderson-Nichols & Company; Anderson-Nichols & Company, a partnership consisting of Evan Ross Anderson, Allen N. Bennett, Eugene S. Taliaferro, Merell T. Kinne, William F. Dewey, Guerard H. Howkins, Charles Wm. Johnson, Fred F. Ladd and Robert L. Williams, individually and as a joint venturer with Moran, Proctor, Mueser & Rutledge, and against each of said partners, individually and as a joint venturer, with Moran, Proctor, Mueser & Rutledge; and Anderson-Nichols & Co., Inc.; J. Rich Steers, Inc., individually and as a joint venturer, and Morrison Knudsen Co., Inc., individually and as a joint venturer, Respondents. |
| Court | U.S. District Court — Southern District of New York |
George J. Engelman, New York City, and Harry Kisloff, Boston, Mass., for libelants.
Whitman, Ransom & Coulson, New York City, for respondents Moran, Proctor, Mueser & Rutledge, and others; Forbes D. Shaw, Paul M. O'Connor, Jr., New York City, of counsel.
Nevius, Jarvis & Pilz, New York City, for respondents J. Rich Steers, Inc. and Morrison Knudsen Co., Inc.
Frank G. Sterritte, New York City, for respondent J. Rich Steers, Inc.
Macklin, Speer, Hanan & McKernan, Charles J. Carroll, Jr., New York City, of counsel, for respondents.
On December 28, 1961, six libelants, each as the representative of his or her intestate, filed a libel seeking damages for the conscious pain and suffering and wrongful death of each said decedent. Each intestate was a member of the United States Air Force, stationed on Texas Tower No. 4, who met his death when that Tower collapsed into the sea on January 15, 1961.
The libel pleads thirty causes of action, five by each libelant. The respondents severally and jointly charged with wrongdoing, as hereinafter set forth, are:
Except for the allegations of the several appointments of the libelants, each as the representative of his or her intestate, the survivors of each intestate for whose benefit the suit is brought and the several varying allegations of damages, the causes of action are substantially identical. Therefore, each cause of action of each libelant will be collectively treated herein with the similar causes of action of the other libelants.
Each cause of action is predicated upon the Death on the High Seas by Wrongful Act statute, 46 U.S.C.A. §§ 761 to 768 and/or § 130 of the Decedent Estate Law of the State of New York.
Although each cause of action sets forth in detail the alleged acts or omissions constituting the claimed negligence and breach of warranty, only the basic facts will be recited herein.
It is alleged that in June of 1954 Moran and Anderson partnership, individually and as joint venturers, were employed by the United States Navy to make a study of the feasibility of erecting a radar tower (Texas Tower No. 4) in, on and over the high seas at a point approximately 84 miles southeast of Coney Island, New York.
Moran and Anderson partnership, having certified the feasibility thereof, they were individually and as joint venturers, in December of 1954 employed by the United States Navy to design the tower and to supervise its construction, which they did.
In November of 1957 the completed Tower was delivered to the United States Navy.
In 1960 or 1961 Anderson corporation acquired the assets of Anderson partnership and assumed all the liabilities of the partnership and of each of its partners.
On January 15, 1961 the Tower collapsed into the sea, causing the alleged conscious pain and suffering and death of each libelant's intestate.
Accordingly, the first cause of action against the respondents therein named, as aforesaid, is for the alleged negligence and breach of warranty of said respondents up to November 1957, when they delivered the Texas Tower to the United States Navy.
After substantially realleging the facts pleaded in the first cause of action, the libel alleges that between November 1957, when it was delivered to the Navy, and January 15, 1961, when it crashed into the sea, Texas Tower No. 4 developed structural defects and weaknesses so that in June of 1959 Moran, after completing certain repairs to the Tower, certified to the Navy that it was restored to its original strength.
In April of 1960 Moran recommended to the Navy that certain additions be made to the Tower to make it more stable.
On August 10, 1960, after the completion of the recommended additions, Moran certified to the Navy that the Tower had been restored to its original strength, which it is alleged was not true.
Finally, in September of 1960, Moran refused to then evaluate the strength of the Tower but failed to recommend to the Navy that it be abandoned, after which it collapsed on January 15, 1961, as aforesaid.
Accordingly, the second cause of action against Moran and its partners is for the alleged negligence and breach of warranty of said respondents from November 1957, when the Tower was delivered to the Navy, until January 15, 1961, when it collapsed.
After substantially realleging the facts pleaded in the first cause of action, the libel alleges that Steers and Morrison were construction and structural engineers who jointly and severally were employed in November 1955 by the United States Navy to construct Texas Tower No. 4, which they did, and which they turned over to the Navy as aforesaid in November of 1957, when they certified that the Tower was structurally sound and equal to its original design.
Thus, the third cause of action against Steers and Morrison is for alleged negligence of said respondents up to November 1957, when they delivered the Texas Tower to the United States Navy. No breach of warranty appears to be pleaded in this cause of action.
After substantially realleging the facts pleaded in the first and third causes of action, the libel alleges that between November 1957, when the Tower was delivered to the Navy, and January 15, 1961, when it collapsed, the Navy employed Steers as a general contractor to examine the Tower, make recommendations to the Navy and to the architectural and design engineers for its repair and to repair it, which Steers did by recommending and installing certain additions thereto.
The fourth cause of action against Steers, therefore, is for alleged negligence and breach of warranty of Steers between November 1957 and January 15, 1961.
This cause of action is for the alleged mental anguish, bodily injury and conscious pain and suffering of each intestate before his death.
As earlier observed, each cause of action is predicated on the Death on the High Seas by Wrongful Act statute, 46 U.S.C.A. §§ 761 to 768 and/or § 130 of the Decedent Estate Law of the State of New York.
Libelants, in the memorandum submitted in opposition to the respondents' exceptions herein, confess that they misspoke themselves as to the state statute upon which they predicate their fifth cause of action. They meant to allege § 119 of the Decedent Estate Law of New York. The fifth cause of action in each instance is therefore amended accordingly and the respondents' exceptions to the fifth cause of action will be treated as addressing themselves to § 119 (instead of § 130) of the Decedent Estate Law of New York and to the Death on the High Seas by Wrongful Act statute.
* * *
Moran and its partners now bring on for argument (Motion # 4 of March 13, 1962) exceptions to the libel as follows:
(a) That the claims for wrongful death asserted against it in the first and second causes of action are insufficient insofar as they are predicated upon § 130 of the Decedent Estate...
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