222 F.2d 249 (1st Cir. 1955), 4895, Giacalone v. Raytheon Mfg. Co.

Docket Nº:4895.
Citation:222 F.2d 249
Party Name:Angelo GIACALONE, Plaintiff-Appellant, v. RAYTHEON MANUFACTURING CO., Defendant-Appellee.
Case Date:May 06, 1955
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 249

222 F.2d 249 (1st Cir. 1955)

Angelo GIACALONE, Plaintiff-Appellant,

v.

RAYTHEON MANUFACTURING CO., Defendant-Appellee.

No. 4895.

United States Court of Appeals, First Circuit.

May 6, 1955

Page 250

Thomas B. Shea, Boston, Mass., with whom Leo P. Doherty, Boston, Mass., was on brief, for appellant.

Samuel P. Sears, Boston, Mass., for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

WOODBURY, Circuit Judge.

The plaintiff-appellant, a citizen of Massachusetts, brought suit in the court below in two counts, one sounding in tort for negligence and the other sounding in contract for breach of warranty, against the defendant, a Delaware corporation, to recover damages for the loss of his fishing vessel 'Marsala' which burned and sank while on a fishing trip. Since there can be no doubt that the matter in controversy exceeds the sum or value of $30, 000, exclusive of interest and costs, it follows that federal jurisdiction under Title 28 U.S.C. § 1332(a)(1) is clearly established.

The principal, indeed the only, really contested issue of fact at the trial was as to the cause of the fire. The plaintiff contended that it started in a Fathometer installed on the vessel several years before by the defendant's assignor, Submarine Signal Company, under a lease arrangement whereby the lessor retained title to the instrument and agreed to inspect it and keep it in repair, and the plaintiff as lessee agreed that he would not 'assign, transfer, sublet or in any way charge or deal' with the equipment, or remove it or alter its position in the vessel, except temporarily in case of emergency, without notice to the lessor and its written consent. The plaintiff says in his complaint that an agent of the defendant repaired the Fathometer about two weeks before the fire, and at that time replaced some of its parts, and that either the agent did his work negligently or the defendant negligently supplied

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defective parts, count one; or that the repairs were not made in a good and workmanlike manner, or the new parts were not reasonably safe and suitable for their intended purpose, count two.

The defendant admits the lease of the equipment by Submarine Signal Company, its assumption of that company's liabilities and obligations under the lease, and that the lease was in effect at the time of the fire. It also admits that its agent made repairs to the Fathometer and replaced some of its parts about two weeks before the fire. It, of course, denies its negligence or breach of warranty, and furthermore it says that the construction of the instrument was such that it was physically impossible for it to catch on fire.

A trial by jury resulted in the entry of a judgment for the defendant on both counts and this appeal by the plaintiff followed in due course.

The plaintiff-appellant complains of the judgment against him on several grounds, one of which is that it was not...

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