379 U.S. 148 (1964), 10, Gillespie v. United States Steel Corp.

Docket Nº:No. 10
Citation:379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199
Party Name:Gillespie v. United States Steel Corp.
Case Date:December 07, 1964
Court:United States Supreme Court

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379 U.S. 148 (1964)

85 S.Ct. 308, 13 L.Ed.2d 199



United States Steel Corp.

No. 10

United States Supreme Court

Dec. 7, 1964

Argued October 13, 1964




Petitioner, administratrix, whose son died while working on respondent's ship docked in Ohio, sued in a federal district court, claiming for the estate a right to recover damages for the benefit of herself and decedent's dependent brother and sisters for wrongful death. This claim was based on negligence under the Jones Act and on unseaworthiness under the general maritime law coupled with the Ohio wrongful death statute. Petitioner also claimed damages for the estate for decedent's pain and suffering before death based on the Jones Act and the general maritime law, causes of action which she claimed survived under the Jones Act and the Ohio survival statute, respectively. The District Court, upholding respondent's motion to strike, confined the complaint to the Jones Act and eliminated reference to recovery for the benefit of the brother and sisters. Petitioner filed an appeal from the ruling in the Court of Appeals, which respondent sought to dismiss as not being from a "final" decision under 28 U.S.C. § 1291. Petitioner and decedent's dependents then sought mandamus in that court to compel the District Court either to deny the motion to strike or to certify its order granting the motion as appealable under 28 U.S.C. § 1292(b). The Court of Appeals denied mandamus and affirmed the District Court's order.


1. The District Court's order was "final" and appealable under 28 U.S.C. § 1291. Pp. 152-154.

(a) The requirement of finality is to be given a practical, rather than a technical, construction, and does not necessarily mean that an order, to be appealable, must be the last possible one to be made in a case. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, followed. P. 152.

(b) The inconvenience and costs of piecemeal review must be weighed against the danger of denying justice by delay in deciding the question of finality. Pp. 152-153.

(c) Delay in adjudication of the dependents' rights might work an injustice upon them. P. 153.

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(d) This Court will review a trial court's ruling in a case not fully tried where the questions presented are "fundamental to the further conduct of the case." Pp. 153-154.

(e) Though the District Court did not certify its order to strike under § 1292(b), the Court of Appeals' treatment of the order as final and appealable furthered the congressional policy behind that provision. P. 154.

2. The Jones Act, which bases recovery on negligence, and not unseaworthiness, provides the exclusive right of action for wrongful death of a seaman killed in territorial waters of a State in the course of his employment, and supersedes all otherwise applicable state death statutes. Lindgren v. United States, 281 U.S. 38, followed. Pp. 154-155.

3. The right of recovery under the Jones Act depends on § 1 of the Federal Employers' Liability Act (FELA), which excludes beneficiaries of a remote class (here the brother and sisters) if there are beneficiaries in a nearer class (here the mother). Chicago, B. & Q. R. Co. v. Wells-Dickey Trust Co., 275 U.S. 161, followed. P. 156.

4. Petitioner's cause of action for decedent's pain and suffering before death survived under the Jones Act, through § 9 of the FELA, and will be assumed to have survived under the Ohio survival statute based on the theory of unseaworthiness. Pp. 156-157.

5. Whether or not the estate can recover damages for pain and suffering should abide trial, there being no inflexible rule that, where death occurs from drowning, the period between accident and death is not sufficiently appreciable to afford a basis for the claim. The Corsair, 145 U.S. 335, distinguished. P. 158.

321 F.2d 518 modified and affirmed.

BLACK, J., lead opinion

MR. JUSTICE BLACK delivered the opinion of the Court.

The petitioner, administratrix of the estate of her son Daniel Gillespie, brought this action in federal court against the respondent shipowner-employer to recover

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damages for Gillespie's death, which was alleged to have occurred when he fell and was drowned while working as a seaman on respondent's ship docked in Ohio. She claimed a right to recover for the benefit of herself and of the decedent's dependent brother and sisters under the Jones Act, which subjects employers to liability if by negligence they cause a seaman's injury or [85 S.Ct. 310] death.1 She also claimed a right of recovery under the Ohio wrongful death statute2 because the vessel allegedly was not seaworthy, as required by the "general maritime law." The complaint in addition sought damages for Gillespie's pain and suffering before he died, based on the Jones Act and the general maritime law, causes of action which petitioner said survived Gillespie's death by force of the Jones Act itself and the Ohio survival statute,3 respectively. The District Judge, holding that the Jones Act supplied the exclusive remedy, on motion of respondent, struck all parts of the complaint which referred to the Ohio statutes or to unseaworthiness. He also struck all reference to recovery for the benefit of the brother and sisters of the decedent, who respondent had argued were

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not beneficiaries entitled to recovery under the Jones Act while their mother was living.

Petitioner immediately appealed to the Court of Appeals. Respondent moved to dismiss the appeal on the ground that the ruling appealed from was not a "final" decision of the District Court, as required by 28 U.S.C. § 1291 (1958 ed.).4 Thereupon, petitioner administratrix, this time joined by the brother and sisters, filed in the Court of Appeals a petition for mandamus or other appropriate writ commanding the District Judge to vacate his original order and enter a new one either denying the motion to strike or, in the alternative, granting the motion but including also "the requisite written statement to effectively render his said order appealable within the provisions of 28 U.S.C. § 1292(b)," a statute providing for appeal of certain interlocutory orders.5 Without definitely deciding whether mandamus would have been appropriate in this case or deciding the "close" question of appealability, the Court of Appeals proceeded to determine the controversy "on the merits as though it were submitted on an appeal";6 this the court said it felt free to

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do since its resolution of the merits did not prejudice respondent in any way, because it sustained respondent's contentions by denying the petition for mandamus and [85 S.Ct. 311] affirming the District Court's order.7 321 F.2d 518. Petitioner brought the case here, and we granted certiorari. 375 U.S. 962.


In this Court, respondent joins petitioner in urging us to hold that 28 U.S.C. § 1291 (1858 ed.) does not require us to dismiss this case, and that we can and should decide the validity of the District Court's order to strike. We agree. Under § 1291, an appeal may be taken from any "final" order of a district court. But, as this Court often has pointed out, a decision "final" within the meaning of § 1291 does not necessarily mean the last order possible to be made in a case. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545. And our cases long have recognized that whether a ruling is "final" within the meaning of § 1291 is frequently so close a question that decision of that issue either way can be supported with equally forceful arguments, and that it is impossible to devise a formula to resolve all marginal cases coming within what might well be called the "twilight zone" of finality. Because of this difficulty, this Court has held that the requirement of finality is to be given a "practical, rather than a technical, construction." Cohen v. Beneficial Industrial Loan Corp., supra, 337 U.S. at 546. See also Brown Shoe Co. v. United States, 370 U.S. 294, 306; Bronson v. Railroad Co., 2 Black 524, 531; Forgay v. Conrad, 6 How. 201, 203; Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511, pointed out that, in deciding the question of finality, the most important competing considerations are

the inconvenience and costs

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of piecemeal review, on the one hand, and the danger of denying justice by delay, on the other.

Such competing considerations are shown by the record in the case before us. It is true that the review of this case by the Court of Appeals court could be called "piecemeal," but it does not appear that the inconvenience and cost of trying this case will be greater because the Court of Appeals decided the issues raised, instead of compelling the parties to go to trial with them unanswered. We cannot say that the Court of Appeals chose wrongly under the circumstances. And it seems clear now that the case is before us that the eventual costs, as all the parties recognize, will certainly be less if we now pass on the questions presented here, rather than send the case back with those issues undecided. Moreover, delay of perhaps a number of years in having the brother's and sisters' rights determined might work a great injustice on them, since the claims for recovery for their benefit have been effectively cut off so long as the District Judge's ruling stands. And while their claims are not formally severable, so as to make the court's order unquestionably appealable as to them, cf. Dickinson v. Petroleum Conversion Corp., supra, there certainly is ample reason to view their claims as several in deciding the issue of finality, particularly since the brother and sisters were separate parties in the petition for extraordinary...

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