Petition of H. & H. Wheel Service

• Decision Date: 16 February 1955
• Docket Number: No. 12115-12118.,12115-12118.
• Citation: 219 F.2d 904
• Parties: Petition of H. & H. WHEEL SERVICE, Inc. H. & H. WHEEL SERVICE, Inc. v. Paula CORNET, Adm'x of the Estate of Hector Cornet, Deceased; Lena Loftus, Adm'x of the Estate of Thomas Loftus, Deceased; and Anthony Klinicki. Paula CORNET, Adm'x of the Estate of Hector Cornet, Deceased, v. H. & H. WHEEL SERVICE, Inc. Anthony KLINICKI v. H. & H. WHEEL SERVICE, Inc. Lena LOFTUS, Adm'x of the Estate of Thomas Loftus, Deceased, v. H. & H. WHEEL SERVICE, Inc.
• Court: U.S. Court of Appeals — Sixth Circuit

219 F.2d 904 (1955)

Petition of H. & H. WHEEL SERVICE, Inc.

H. & H. WHEEL SERVICE, Inc. v. Paula CORNET, Adm'x of the Estate of Hector Cornet, Deceased; Lena Loftus, Adm'x of the Estate of Thomas Loftus, Deceased; and Anthony Klinicki.

Paula CORNET, Adm'x of the Estate of Hector Cornet, Deceased, v. H. & H. WHEEL SERVICE, Inc.

Anthony KLINICKI v. H. & H. WHEEL SERVICE, Inc.

Lena LOFTUS, Adm'x of the Estate of Thomas Loftus, Deceased, v. H. & H. WHEEL SERVICE, Inc.

Nos. 12115-12118.

United States Court of Appeals, Sixth Circuit.

February 16, 1955.

COPYRIGHT MATERIAL OMITTED

Sparkman D. Foster, Detroit, Mich. (Raymond A. Ballard and John Arthur Hamilton, of Foster & Meadows, Detroit, Mich., on the brief), for H. & H. Wheel Service, Inc.

Edward N. Barnard, Detroit, Mich., for Anthony Klinicki.

Wm. J. Weinstein, Detroit, Mich., for Paula Cornet.

Carl Gussin Charfoos, Gussin, Weinstein & Kroll, Detroit, Mich., on the brief for Paula Cornet.

Nathan E. Shur, Detroit, Mich., on the brief for Lena Loftus.

Before SIMONS, Chief Judge, and ALLEN and MARTIN, Circuit Judges.

MARTIN, Circuit Judge.

These consolidated suits in admiralty stem from a night-time collision in the Detroit River between the Fourth Marie, a forty-seven-foot motor cruiser, and a small outboard motor boat in use by a fishing party of three men. Two occupants of the small boat were drowned and the third, its owner, was injured. The larger boat was owned by H. & H. Wheel Service, Inc. The president, manager and almost exclusive stockholder of that corporation, Clare L. Hiles, was aboard at the time of the accident. Originally, Hiles had been sole stockholder of the company but later he had transferred by gift some of his stock to his wife, his son, and his daughter. No member of his family, however, had anything to do with the wheel service business. The Fourth Marie had been customarily used both for the pleasure of Hiles, his family, and his friends and, in his business, for the entertainment of customers.

The Fourth Marie had been docked at the Detroit Yacht Club, of which Hiles was a member. Around four o'clock in the afternoon of the day of the accident, the cruiser shoved off with Hiles and his wife aboard, accompanied by friends. Their guests were Murray Knapp, former Commodore of the Yacht Club, and Mrs. Knapp; Joseph Summerlee and wife: all personal friends of the Hiles; and Ralph Burgess, an employee of Knapp. Burgess was caretaker of the latter's boat. Fred Chalcraft, another friend of Hiles, was picked up as a guest shortly after the boat had crossed the river. Burgess had been permitted by his employer, Knapp, to act as pilot of the Fourth Marie on the pleasure cruise up the Detroit River and Lake St. Claire to the party objective, a road house called the Idle Hour on Harsen's Island, some 23 miles from Detroit. Burgess had never been aboard the Fourth Marie until taken on to operate it; and this fact was known to Hiles.

Burgess was instructed by Hiles in the use of the automatic pilot with which the cruiser was equipped and was shown around the ship by Hiles who, together with Knapp, aided with the lines as the boat shoved off. On the voyage up, Hiles served his guests intoxicating liquors and admitted that he, too, had taken on several drinks while aboard the Fourth Marie. A stop was made at Miller's Tavern, where Hiles drank two or three beers. The party then proceeded to the Idle Hour, where food, liquor and wine were consumed. Hiles drank two or three beers while there.

Around ten-thirty P.M., the Hiles party left the Idle Hour for the return trip to the Detroit Yacht Club. Hiles instructed Burgess to operate the cruiser on automatic pilot. At the trial, Hiles admitted that he knew the Fourth Marie had a blind spot of between one hundred and one hundred and fifty feet. He stated further that he knew the ship was so constructed that in the pilot house directly in front of the wheels are three windows, separated by wooden partitions approximately six inches wide, and that there was a mast in the immediate center of the boat directly in front of the center window. Hiles said that when the ship was on automatic pilot, Burgess could not have handled the wheel manually. He admitted that, on the return voyage, no one was placed in the bow or elsewhere as lookout, and that both he and Burgess knew that the point where the collision occurred was in a congested area of the Detroit River. He admitted further that he knew the pilot could not see from the cabin for quite a distance ahead, by reason of the "blind spot."

Hiles testified that he was sitting behind Burgess in the cabin when he felt a jar from the bottom of the boat which caused him to think that the vessel might be running aground. After hearing the thump, he ran to the stern and saw debris in its wake.

Burgess testified that he saw no small boat until somebody — he thought it was Hiles — shouted to him to stop and "said something about a capsized boat." He asserted that under direction of Hiles, and also of Summerlee and Chalcraft, he turned the ship through the wreckage in order to pick up a man who was swimming in the water. This man turned out to be Klinicki. To stop the boat, Burgess had to cut the throttle and turn the switch to take the vessel off automatic pilot. Knapp brought the search light of the ship into play. Wreckage of a small overturned boat was revealed. Two men were seen in the water, one of whom, Loftus, was clinging to the overturned boat and the other, Klinicki, was swimming toward the shore. Klinicki called out for them to save the other men, as he could take care of himself. Nevertheless, the occupants of the Fourth Marie hauled Klinicki aboard the cruiser. A small boat, which had put out from shore, picked up Loftus who could not be revived. The body of the third occupant of the small boat, Cornet, could not be found until several days later. He had been drowned immediately following the accident.

Four persons who were at a trailer camp just below Windmill Point on the Detroit side of the river witnessed the accident. Two of them, James Chapman and his wife, Joyce, testified that they saw a large boat, which both later identified as the Fourth Marie, coming down the river. Chapman said that the vessel was "going pretty fast" and that he was amazed when he saw the "spray which it was putting up." He said further that its hatch was halfway up in the air. He saw a small outboard motorboat, which was not going fast, coming up stream. His wife exclaimed that she thought the big boat and the little one were "going to hit." They did. He heard a crash; after which, the big boat seemed to reverse its engines, for it came straight back and did not swing around. He heard calls for help. One of the men in the water shouted: "Don't bother with me. Save the other two. They can't swim." There were no other boats in the vicinity, Chapman declared.

Mrs. Chapman testified that, while standing on the shore beside her husband, she noticed a small boat with three men in it passing by on its way up the river. The boat had a light on. She could hear the occupants of the boat talking, but did not hear what they said. She corroborated her husband in material details.

Another husband and wife, Raymond and Evelyn Ellyson, who were sitting in their parked automobile facing the Detroit River, were also eye witnesses. They heard a cry for help from someone out on the river. Ellyson turned the spotlight of his automobile toward the river, saw the wreckage of a small boat some two hundred feet away, and observed a man clinging to the boat. Ellyson then observed the white cruiser backing up and turning its spotlight toward the wreckage. He heard a human cry: "You have hit me with the screws." He then saw a man's arms and head slide into the water. He heard a man, who was swimming in the river, call out that he was all right, "get the others." A small boat went out from shore and picked up one of the men in the water, while the cruiser picked up the other. Ellyson went to the aid of the man who was brought ashore and observed that he had a bad gash on his buttocks and a "sort of circular cut" close to his spine. The man, who proved to be Loftus, died. Mrs. Ellyson corroborated the testimony of her husband. She identified the Fourth Marie as the large boat involved in the accident and said that she had heard the faint cries of someone: "Help! You hit me."

When the United States Coast Guard was called, its boat was sent out immediately to aid in the rescue. Guardsman Samp, who was aboard, testified that the Fourth Marie was there when he arrived at the scene of the accident. This was only seven minutes after he had received the call at the Coast Guard station. Only one starboard green light of the Fourth Marie was turned on and its port lights were not shining when the Coast Guard arrived. Hiles was directed to correct the condition forthwith.

The members of the Fourth Marie debarked at Belle Isle. Samp personally served Burgess black coffee when requested to do so. He testified that Burgess appeared to have been drinking intoxicating liquors, "which could be detected from his breath." Burgess denied that he had taken a drink that evening. Samp swore further that other members of the Hiles' party smelled of liquor. He stated that, on the night of the accident, a haze ten to twelve feet high hung over the waters in the vicinity of the point of collision.

The Vice Commander of the Coast Guard Auxiliary testified that he had followed the Coast Guard boat up the river; had observed the eight- to ten-foot haze above water level and, when he arrived at the scene of the accident, had noticed that the port light of the Fourth Marie was out. He directed those aboard the cruiser to put the lights on.

Dr. Love, medical examiner from the coroner's office, made post mortem examinations of the bodies of both Cornet and Loftus. He expressed his opinion that Cornet had not died from...