Turner v. Wilson Line of Massachusetts

Decision Date13 March 1957
Docket NumberNo. 5159.,5159.
Citation242 F.2d 414
PartiesHelen T. TURNER, Administratrix, Plaintiff, Appellant, v. WILSON LINE OF MASSACHUSETTS, Inc., Defendant, Appellee.
CourtU.S. Court of Appeals — 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 brought under the Jones Act, 46 U.S.C.A. § 688. The District Court, however, did not hold counsel to that limitation. Instead, noting that the complaint might readily be amended, it proceeded to consider whether a plaintiff was entitled to recover under any law, statutory or decisional. Concluding that the plaintiff on the facts alleged in the complaint and stated orally by her counsel was not entitled on her complaint to recover against the defendant under any law, the court below entered the judgment of dismissal from which she took this appeal.

The questions presented are jurisdictional.

The plaintiff did not see fit to invoke the original jurisdiction over civil cases of admiralty or maritime jurisdiction conferred on the district courts by Title 28 U.S.C. § 1333. Instead she brought this civil action demanding jury trial on the law side of the court. Our search for jurisdiction is limited to either § 1331 or § 1332 of Title 28. The diversity jurisdiction conferred by § 1332 clearly cannot be invoked for the plaintiff and the defendant are both citizens of Massachusetts, and so also, apparently, was the decedent. This leaves for consideration only § 1331 wherein it is provided: "The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $3,000, exclusive of interest and costs, and arises under the Constitution, laws or treaties of the United States."

The Jones Act referred to above is undoubtedly a law of the United States. But the plaintiff cannot recover under that Act, for, as the District Court pointed out, the rights of action therein conferred are given to employees against their employers, Cosmopolitan Shipping Co. v. McAllister, 1949, 337 U.S. 783, 69 S.Ct. 1317, 93 L.Ed. 1692, and on the facts alleged in the complaint and stated orally at the hearing, which the court below was careful to make sure were stated fully, there is no basis for finding that Turner was an employee of the defendant.1 Continental Cas. Co. v. Thorden Line, 4 Cir., 1951, 186 F.2d 992. It seems clear to us that he was an employee of McKie Lighter Company, hired and paid by it, and that he was under its, not the defendant's, direction and control as to the management of the pump under his supervision.2

The lack of an employer-employee relationship between the defendant and the decedent also disposes of the fifth count wherein recovery is sought for funeral expenses. The only law of the United States suggested as a basis for recovering funeral expenses is Article 7 of the Shipowners' Liability (Sick and Injured Seamen) Convention, 1936, 54 Stat. 1699. That Article imposes liability on the shipowner for burial expenses in case of death occurring on board, or on shore, "if at the time of his death the deceased person was entitled to medical care and maintenance at the shipowner's expense. That is to say, the right conferred by the Convention to recover funeral expenses not only supplements the right to maintenance and care but also depends for its existence upon that right. But the right to maintenance and care, while conferred by general maritime law, and hence in the view prevailing in this circuit, as will presently more fully appear, by federal rather than by state law, is a contractual right attached as an incident to, and having its origin in, the seaman's contract of employment. Doucette v. Vincent, 1 Cir., 1952, 194 F.2d 834, 838, and cases cited. Thus the right to maintenance and care cannot arise in the absence of some sort of contract of employment, and from this it follows that the right to recover funeral expenses appended thereto by the Convention cannot arise in the absence of an employer-employee relationship. We turn now to the counts for wrongful death.

No right to recover for wrongful death was accorded either by the common law or by the general maritime law. The plaintiff must therefore look to some statute. The Death on the High Seas Act, so called, 46 U.S.C.A. § 761, et seq., although a law of the United States, does not provide a basis for recovery as sought in the third and fourth counts, because the...

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