Warnken v. Moody

• Citation: 22 F.2d 960
• Decision Date: 03 December 1927
• Docket Number: No. 5162.,5162.
• Parties: WARNKEN et al. v. MOODY et al.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

22 F.2d 960 (1927)

WARNKEN et al. v. MOODY et al.

No. 5162.

Circuit Court of Appeals, Fifth Circuit.

December 3, 1927.

J. Newton Rayzor, of Houston, Tex., for appellants.

Frank S. Anderson, of Galveston, Tex., for appellees.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

WALKER, Circuit Judge.

This was an admiralty libel, filed by the appellants, the widow, the minor daughter, and the father of Edwin Warnken, deceased, against the appellees, W. L. Moody, Jr., and his son, Shearn Moody, to recover damages for the death of the deceased, which occurred on January 29, 1926, in consequence of the exposure and cold resulting from the deceased jumping overboard into Galveston Bay from the gasoline launch Anico, when there was a fire on that vessel. The libel, as it was amended, contained allegations to the effect that appellees were negligent in inviting appellee to go upon said vessel when they knew or should have known that it was unseaworthy; that W. L. Moody, Jr., was negligent in permitting the vessel to be used and operated when it was in a dangerous and unseaworthy condition; that negligence of Shearn Moody contributed to causing the starting of the fire; and that Charles Anderson, who was alleged to be the agent and servant of the appellees, was negligent in attempting to start and operate the launch's engine by pouring gasoline into its carbureter.

The separate answers of the appellees to the libel put in issue its material allegations, and set up that the deceased was guilty of contributory negligence in failing to object to the method adopted to start the launch's engine after it had ceased to operate, and that W. L. Moody, Jr., was the sole owner of the launch; and the answer of W. L. Moody, Jr., set up the claim that, if he was liable, he was entitled to a limitation of his liability. The decree adjudged that libelants were not entitled to recover against Shearn Moody, that they were entitled to recover against W. L. Moody, Jr., and that W. L. Moody, Jr., was entitled to a limitation of his liability to the value of the vessel at the end of the voyage. The appellants contend that the decree was erroneous in adjudging that Shearn Moody was not liable, and that W. L. Moody, Jr., was entitled to a limitation of his liability. In behalf of W. L. Moody, Jr., it was contended that the decree was erroneous, in adjudging that he was liable. Most of the evidence adduced in the trial was testimony of witnesses given in the presence of the trial judge.

W. L. Moody, Jr., was the sole owner of the Anico, a gasoline launch, 30 feet in length, 9-foot beam, which he bought in the fall of 1925, from a gasoline launch builder of recognized standing and reputation, for use of himself, his family, and friends in hunting and fishing. He employed as captain of the Anico Charles Anderson, a licensed marine engineer, operator and navigator of vessels propelled by gasoline, who had been employed by W. L. Moody, Jr., for many years in similar service, and instructed him to take at any time any member of his (W. L. Moody, Jr.'s) family desiring to take a trip on the Anico. W. L. Moody, Jr., paid Anderson for his services as master of the vessel, and paid for the supplies of the vessel.

On January 29, 1926, on the invitation of Shearn Moody, the deceased and five other men went with Shearn Moody on the Anico, on a duck-hunting trip to Lake Surprise. W. L. Moody, Jr., was not in Galveston on that day, and did not until afterwards know of that trip. Shearn Moody was then 31 years old, unmarried, and a member of his father's household. Anderson, the master, was in charge of the vessel on that trip. Shearn Moody gave him no direction as to the navigation or operation of the vessel, except to tell him to go to Lake Surprise. When the vessel had been running without any trouble about 50 minutes, and was about a mile and a half from Lake Surprise, the engine stopped. Thereupon Anderson, the master, examined the engine to find out the cause of its stopping, and concluded that the trouble was that the auto impulse pumps, by means of which gasoline was carried from the tanks to the carbureters, had ceased to work, and that he was unable to get those pumps to work. Anderson then connected a piece of rubber tubing to the feed pipe connecting the carbureters, and, after disconnecting the impulse pumps and getting a funnel for the other end of the rubber tubing, and cautioning those present about smoking or lighting matches, drew a bucket of gasoline, and asked Shearn Moody to pour gasoline into the funnel, from which the gasoline was to go by gravity through the rubber tubing and feed pipe to the carbureters. Shearn Moody complied with that request or direction, using a small can in getting gasoline from the bucket, which was placed away from the engine. When gasoline was supplied to the carbureter in that way, Anderson put on the self-starter and the engine started.

After the vessel had gone from a quarter to...