242 F.2d 414 (1st Cir. 1957), 5159, Turner v. Wilson Line of Mass., Inc.
|Citation:||242 F.2d 414|
|Party Name:||Helen T. TURNER, Administratrix, Plaintiff, Appellant, v. WILSON LINE OF MASSACHUSETTS, Inc., Defendant, Appellee.|
|Case Date:||March 13, 1957|
|Court:||United States Courts of Appeals, Court of Appeals for the First Circuit|
Charles J. Wilkins, Boston, Mass., with whom Leo P. Doherty, Boston, Mass., was on brief, for appellant.
Thomas H. Walsh, Boston, Mass., with whom Leo F. Glynn, Boston, Mass., was on brief, for appellee.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit judges.
WOODBURY, Circuit Judge.
The plaintiff-appellant, a citizen of Massachusetts, brought as the administratrix of the estate of her deceased husband a civil action on the law side of the court below demanding trial by jury of
her claim to recover damages from the defendant, a Massachusetts corporation, for personal injuries inflicted upon her husband and for his ensuing death. The defendant seasonably moved to strike four of the five counts in the complaint and the court below held a hearing on the motion. Thereafter, treating the motion to strike as in effect a motion for summary judgment, the court granted the motion and entered judgment dismissing the plaintiff's complaint. She thereupon took this appeal.
The following facts were found by the District Court on the basis of the allegations in the complaint and the statements of counsel for the plaintiff at the hearing on the defendant's motion to strike.
The coastwise steamer Pilgrim Belle, owned by the defendant, ran aground on a bar in Boston Harbor in June, 1955, and took water. The McKie Lighter Company, apparently at the defendant's request, undertook salvage operations including pumping the vessel out. The plaintiff's intestate, Turner, an employee hired and paid by McKie, came on board the Pilgrim Belle to assist in the bailing operation as supervisor of the pump. McKie used its own pump which was operated by a gasoline motor. This pump was in operation for 14 hours on a hot humid day in a confined space on board and its gasoline motor exhausted inboard. Although the captain of the Pilgrim Belle was on board at all times while the pump was in operation, and so also was the defendant's marine superintendent, no one opened any ports or windows in the space where the pump was operating or put a blower in operation. As a result that part of the vessel became contaminated with carbon monoxide gas. On these facts the court below said that it could be found that the master was negligent in permitting this dangerous situation to occur on board his vessel, and furthermore, whether the master was negligent or not, the gas contaminated area in the vessel made it unseaworthy.
While Turner was engaged in his work with the pump he inhaled excessive quantities of carbon monoxide gas for perhaps seven or eight hours. During that period he complained of pains in his chest and he was nauseated. Nevertheless he continued to work in ignorance of the cause of his illness until he lost consciousness. He died a short time later without regaining consciousness.
The complaint, which the District Court (142 F.Supp. 265) aptly described as 'a hybrid product of questionable ancestry, ' is in five counts. The first count is for personal injuries short of death caused by negligence and the second count is for personal injuries short of death caused by unseaworthiness. The third count is for wrongful death caused by negligence and the fourth count is for wrongful death caused by unseaworthiness. The fifth count is for funeral expenses.
Nowhere in the complaint is there any statement of the law under which recovery is sought. At the hearing, however, counsel for the plaintiff told the court that the complaint as to all of the causes of action alleged was...
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