Gillespie v. United States Steel Corporation

• Decision Date: 29 July 1963
• Docket Number: 15389.,No. 15383,15383
• Citation: 321 F.2d 518
• Parties: Mabel GILLESPIE, Administratrix of the Estate of Daniel E. Gillespie, Deceased, Plaintiff-Appellant, v. UNITED STATES STEEL CORPORATION, a corporation, Defendant-Appellee. Mabel GILLESPIE, Administratrix of the Estate of Daniel E. Gillespie, Deceased, and Guardian of Mary Jane Gillespie, an incompetent, and Louis Eugene Gillespie, Roberta G. Keiser, and Rosanna G. Harvey, Petitioners, v. Honorable Paul JONES, Judge of the United States District Court for the Northern District of Ohio, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

321 F.2d 518 (1963)

Mabel GILLESPIE, Administratrix of the Estate of Daniel E. Gillespie, Deceased, Plaintiff-Appellant, v. UNITED STATES STEEL CORPORATION, a corporation, Defendant-Appellee.

Mabel GILLESPIE, Administratrix of the Estate of Daniel E. Gillespie, Deceased, and Guardian of Mary Jane Gillespie, an incompetent, and Louis Eugene Gillespie, Roberta G. Keiser, and Rosanna G. Harvey, Petitioners, v. Honorable Paul JONES, Judge of the United States District Court for the Northern District of Ohio, Respondent.

Nos. 15383, 15389.

United States Court of Appeals Sixth Circuit.

July 29, 1963.

Jack G. Day and Bernard A. Berkman, Cleveland, Ohio, for appellant in No. 15383 and petitioners in No. 15389.

Robert B. Preston; Arter, Hadden, Wykoff & Van Duzer, Cleveland, Ohio, for appellee in No. 15383 and respondent in No. 15389.

Before WEICK and O'SULLIVAN, Circuit Judges and McALLISTER, Senior Circuit Judge.

McALLISTER, Senior Circuit Judge.

Appellant, Mabel Gillespie, Administratrix of the Estate of Daniel E. Gillespie, Deceased, filed her complaint against the United States Steel Corporation, as defendant, in the District Court, for the recovery of damages arising out of the death of her decedent, who was a seaman and a member of the crew of one of appellee's steamers, engaged in transportation, as a cargo carrier, on the Great Lakes. The complaint alleged a cause of action based upon three separate grounds: (1) Title 46 U.S.C.A. § 688 (the Jones Act); (2) the general maritime law (unseaworthiness); and (3) the Ohio Wrongful Death Act.

Appellee filed a motion requesting the District Court to strike from the complaint the allegations relating to the general maritime law doctrine of unseaworthiness, and the allegations relating to the Ohio Wrongful Death Act, for the reason that the appellant's right to recover for the death of her decedent was based exclusively on the Jones Act. Briefs were filed in support of the motion and in opposition thereto. The District Court entered an order granting appellee's motion to strike. From this order, appellant prosecuted an appeal. Appellee filed a motion in this court for an order dismissing the appeal on the ground that the order of the District Court is not a final appealable order and, therefore, that the appeal was premature.

Before the motion to dismiss the appeal was heard by this court, appellant, Mabel Gillespie, filed a petition in this court for extraordinary relief, including a petition for a writ of mandamus, injunction, or other appropriate writ to be issued to the District Court commanding it to vacate the order striking from the complaint the allegations relating to the general maritime law doctrine of unseaworthiness, and the allegations relating to the Ohio Wrongful Death Act; and further commanding the District Court either to enter an order denying the motion to strike, or, in the alternative, granting the motion, and incorporating therein the requisite written statement to render appealable the said order within the provisions of Title 28 U.S.C.A. § 1292(b). This petition for extraordinary relief was filed not only by Mabel Gillespie as administratrix, but as guardian of Mary Jane Gillespie, an incompetent; and she was joined in the petition by Louis Eugene Gillespie, Roberta G. Keiser, and Rosanna G. Harvey. Mabel Gillespie is the mother of decedent, and the other named petitioners are his brothers and sisters.

The party who initiated the suit, that is, plaintiff-appellant, and the parties who initiated the petition for extraordinary remedy, that is, plaintiff-appellant and petitioners, seeking relief from a single order of the District Court, submit that they will be content if this court reaches the merits of the controversy, by either means, and strongly urge such a decision at this time. For this purpose, they moved to consolidate these appellate matters; and an order granting such motion for consolidation has been granted.¹

The order of the District Court striking the allegations relating to unseaworthiness under the general maritime law and the Ohio Wrongful Death Act, if interlocutory, is not an appealable order. Title 28 U.S.C.A. § 1292 confers jurisdiction upon this court to hear appeals in certain instances where interlocutory orders or decrees are involved; but the order of the District Court in this case, which, it is to be said, is not an order in a proceeding in admiralty, does not come within any of the statutory classifications in which this court has jurisdiction of an appeal in an interlocutory decision.²

It is true that according to the statute, as appears in the margin, where a district judge enters an interlocutory order in a civil action, otherwise not appealable, and is of opinion that such order involves a controlling principle of law, as to which there is substantial ground for difference of opinion, and that an immediate appeal may materially advance the ultimate termination of the litigation, he shall so state in writing in such order, and the Court of Appeals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after entry of the order. In the instant case, however, the District Court made no such order as above provided, and this Court did not permit such appeal.

It appears that, on its face, the order of the District Court, striking the allegations from the complaint is not a final order, but an interlocutory order, and not appealable; and the cases cited by appellee sustain the foregoing proposition. Lewis v. E. I. Du Pont De Nemours & Company, Inc., 183 F.2d 29, 21 A.L.R.2d 757 (C.A. 5); Cox v. Graves, Knight & Graves, Inc., 55 F.2d 217 (C.C.A. 4). An order striking a portion of the pleadings is not a final order. Markham v. Kasper, et al., 152 F.2d 270 (C.A. 7); Libbey-Owens-Ford Glass Co. v. Sylvania Indust. Corp., 154 F.2d 814 (C.A. 2); Stewart v. Shanahan, 277 F.2d 233 (C.A. 8).

However, counsel for appellant persuasively argues that the order of the District Court is not an interlocutory order, but a final order, because of these reasons: the order, striking the allegations in question, entirely eliminated decedent's dependent brothers and sisters as beneficiaries in the wrongful death action based upon unseaworthiness; it removed from the wrongful death count of decedent's mother, the alternate theory of unseaworthiness; and it further removed any right to recover damages for conscious pain and suffering of decedent on the alternate theory of liability for unseaworthiness.

The difficulties of determining what a "final" appealable order is, are ably discussed by counsel for appellant in his brief, which embraces the argument that, even in cases where interim orders are called final, they may be really interlocutory, but have been held appealable solely because of hardship; that where an interim order adversely affects substantial rights which cannot be adequately protected by a subsequent appeal, the hardship rule will be invoked to make such an order final and appealable; and that the provision for appeal only from final decisions should not be so constructed as to deny effective review of a claim fairly severable from the context of a larger litigious process. Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511, 70 S.Ct. 322, 94 L.Ed. 299; Pabellon v. Grace Line, 191 F.2d 169, 179 (C.A. 2); Holdsworth v. United States, 179 F.2d 933 (C.A. 1); Forgay v. Conrad, 6 How. 201, 12 L.Ed. 404; Craighead v. Wilson, 18 How. 199, 15 L.Ed. 332; United States Alkali Export Ass'n v. United States, 325 U.S. 196, 65 S.Ct. 1120, 89 L.Ed. 1554; Cohen v. Beneficial Ind. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528; Swift & Co. Packers v. Compania Colombiana Del Caribe, 339 U.S. 684, 70 S.Ct. 861, 94 L.Ed. 1206.

The question whether the order of the District Court is an appealable or non-appealable order is a close one. We would, at this time, in the interest of the due and proper administration of justice, prefer to decide the appeal on the merits, if that be possible; and we think it is. Plaintiff-appellant and petitioners ask for a disposition on the merits at this time, and agree to submit the controversy for such a determination; and, while in the regular course, the record, printed indices, and briefs would be filed, and the case placed upon the calendar for argument, we shall proceed to a determination on the merits, since our decision will not prejudice the rights of appellee defendant and respondent, who have not entered a consent to such a disposition.

We are, accordingly, of the view that, in the light of the motion, petition, and arguments advanced in the briefs, it is proper here to consider and pass upon the contention made by plaintiff-appellant and petitioners that the District Court erred in its order striking from the complaint the allegations basing the cause of action upon the general maritime law of unseaworthiness, and also striking the allegations basing the cause of action on the provisions of the Ohio Wrongful Death Act, leaving the plaintiff only the right to proceed under the Jones Act.

We proceed then to discuss the rights to which plaintiff-appellant and appellees are entitled under the Jones Act; whether they have any remedies under the general maritime law, and the Ohio Wrongful Death Act; whether the hardship rule applies as to interlocutory orders; and whether the motion to dismiss the appeal should be granted or denied.

We start first with the Jones Act. Prior to the Jones Act, 46 U.S.C.A. § 688, there was no liability for wrongful death under the general maritime law. That law gave no right to recover indemnity for the death of a seaman, although occasioned by the unseaworthiness of the vessel, or by negligence, and conferred no right whatever upon his personal representatives to recover damages. Lindgren v. United States, 281 U.S. 38, 50 S.Ct. 207, 74 L.Ed. 686.

The Jones Act gave a...