Thornell v. Chesapeake & Ohio Railway Company

• Citation: 166 F. Supp. 61
• Decision Date: 05 September 1958
• Docket Number: Civ. A. No. 3310.
• Parties: Carl A. THORNELL, Plaintiff, v. The CHESAPEAKE & OHIO RAILWAY COMPANY, Defendant.
• Court: U.S. District Court — Western District of Michigan

166 F. Supp. 61

Carl A. THORNELL, Plaintiff, v. The CHESAPEAKE & OHIO RAILWAY COMPANY, Defendant.

Civ. A. No. 3310.

United States District Court W. D. Michigan, S. D.

September 5, 1958.

Arthur H. Schwab, Chicago, Ill., S. Eldridge Sampliner, Cleveland, Ohio, Victor G. Hanson, Detroit, Mich., of counsel, for plaintiff.

Erwin W. Roemer, Chicago, Ill., Robert A. Straub, Detroit, Mich., and Paul O. Strawhecker, Grand Rapids, Mich., of counsel, for defendant.

KENT, District Judge.

This is an action upon two counts, the first being an action for personal injuries under the Jones Act, 46 U.S.C.A. § 688, and the second, for maintenance and cure under the General Maritime Law.

It appears that the plaintiff, Carl A. Thornell, while under the age of twentyone (21) years, was employed as a coal passer aboard the defendant's car ferry Spartan, a vessel duly enrolled and licensed for the coasting trade, and engaged in commerce and navigation upon the Great Lakes. On July 4, 1954, the plaintiff was injured. He claims that the injuries resulted from negligence on the part of the defendant.

This action was originally instituted in the United States District Court for the Northern District of Illinois, Eastern Division, but was by that court transferred to this court, "in the interest of justice and for the convenience of the parties and witnesses." The matter is before the court on the defendant's motion to dismiss the action or in the alternative for a summary judgment. The motion sets up an alleged release pursuant to the authority and order of the Probate Court for the County of Mason, State of Michigan. A hearing was had at which time defendant produced the Registrar of Probate of Mason County, and introduced in evidence the originals of the settlement papers from the files of that Probate Court, certified copies of such instruments were attached to the defendant's motion.

The court is satisfied that under the provisions of Rule 12(b) Federal Rules of Civil Procedure, 28 U.S.C.A., a motion to dismiss is not appropriate since the complaint to which the motion is directed does state a claim upon which relief can be granted. The motion will, therefore, be treated as a motion for summary judgment under the provisions of Rule 56, Federal Rules of Civil Procedure. That Rule provides in part:

"(b) A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.

"(c) The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages."

The Court of Appeals for the Sixth Circuit in reviewing the considerations which should be before the court in determining motions for a summary judgment has said in Aetna Insurance Co. v. Cooper Wells & Co., 6 Cir., 1955, 234 F.2d 342, 344:

"The trial court should be slow in granting a motion for summary judgment depriving a party of his right to trial by jury where there is a reasonable indication that a material fact is in dispute. * * *

"The function of a motion for summary judgment is not to permit the court to decide issues of fact, but solely to determine whether there is an issue of fact to be tried."

And in the more recent case, Knapp v. Kinsey, 6 Cir., 249 F.2d 797, at page 801, the court said:

"The construction and applicability of the summary judgment rule has been before us on several previous occasions. In Begnaud v. White, 6 Cir., 170 F.2d 323, 327, we said, `The authorities indicate that the trial judge should be slow in passing upon a motion for summary judgment which would deprive a party of his right to a trial by jury where there is a reasonable indication that a material fact is in dispute,' citing Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 64 S.Ct. 724, 88 L.Ed. 967. In Lloyd v. United Liquors Corp., 6 Cir., 203 F.2d 789, 793, we quoted with approval from the opinion in Doehler Metal Furniture Co. v. United States, 2 Cir., 149 F.2d 130, 135, as follows, `We take this occasion to suggest that trial judges should exercise great care in granting motions for summary judgment. * * * Such a judgment, wisely used, is a praiseworthy and time-saving device. But, although prompt despatch (sic.) of judicial business is a virtue, it is neither the sole nor the primary purpose for which courts have been established. Denial of a trial on disputed facts is worse than the delay.' Other cases in which we held that summary judgment proceedings did not afford the losing party an adequate opportunity to develop the facts and should not have been used are Estepp v. Norfolk & Western Railway Co., 6 Cir., 192 F.2d 889; Bellak v. United Home Life Insurance Co., 6 Cir., 211 F.2d 280, 283, and Hoy v. Progress Pattern Co., 6 Cir., 217 F.2d 701, 704.

"In Stevens v. Howard D. Johnson Co., 4 Cir., 181 F.2d 390, 394, the Court said, `It must not be forgotten that, in actions at law, trial by jury of disputed questions of fact is guaranteed by the Constitution, and that even questions of law arising in a case involving questions of fact can be more satisfactorily decided when the facts are fully before the court than is possible upon pleadings and affidavits.' The opinion further stated that a motion for summary judgment `should be granted only where it is perfectly clear that no issue of fact is involved and inquiry into the facts is not desirable to clarify the application of the law. (Cases cited.) And this is true even where there is no dispute as to the evidentiary facts in the case but only as to the conclusions to be drawn therefrom. (Cases cited.)' In Griffeth v. Utah Power & Light Co., 9 Cir., 226 F.2d 661, 669, the Court said, `Resort to summary judgment procedure is futile where there is any doubt as to whether there is a fact issue. All doubts upon the point must be resolved against the moving party.'"

At the time of the hearing on the motion, the plaintiff asserted, through his counsel, that he had a right to go to the jury on the issue of the propriety of the release. It is the theory of the plaintiff that because he was a seaman the order of the Probate Court of Mason County approving the settlement is subject to review by a jury in this court.

It is the theory of the plaintiff that all of the circumstances surrounding the entry of the Probate Court order should be reviewed by a jury in this court and that such a jury should be permitted to pass upon the propriety of the entry of the order of the Probate Court. While this may seem to be an unusual theory a transcript of the arguments of counsel in this case on June 12, 1957, will effectively demonstrate that plaintiff's counsel had no other theory. Plaintiff relies entirely upon Garrett v. Moore-McCormack Co., Inc., 317 U.S. 239, 246, 63 S.Ct. 246, 251, 87 L.Ed. 239, and quotes as follows:

"A seaman in admiralty who attacks a release has no such burden imposed upon him as that to which the Pennsylvania rule subjects him. Our historic national policy, both legislative and judicial, points the other way. Congress has generally sought to safeguard seamen's rights. The first Congress, on July 20, 1790, passed a protective act for seamen in the merchant marine service, safeguarding wage contracts, providing summary remedies for their breach, and requiring shipowners to keep on board fresh medicines in condition for use. 1 Stat. 131. The fifth Congress, July 16, 1798, 1 Stat. 605, originated our present system of marine hospitals for disabled seamen. The language of Justice Story, sitting on Circuit in 1823, described the solicitude with which admiralty has traditionally viewed seamen's contracts:

"`They are emphatically the wards of the admiralty; and though not technically incapable of entering into a valid contract, they are treated in the same manner as courts of equity are accustomed to treat young heirs, dealing with their expectancies, wards with their guardians, and cestuis que trustent with their trustees. * * * If there is any undue inequality in the terms, any disproportion in the bargain, any sacrifice of rights on one side, which are not compensated by extraordinary benefits on the other, the judicial interpretation of the transaction, is that the bargain is unjust and unreasonable, that advantage has been taken of the situation of the weaker party, and that pro tanto the bargain ought to be set aside as inequitable. * * * And on every occasion the court expects to be satisfied, that the compensation for every material alteration is entirely adequate to the diminution of right or privilege on the part of the seamen.'

Harden v. Gordon, 11 Fed. Cas. at pages 480, 485, No. 6,047.

"In keeping with this policy, Congress has itself acted concerning seamen's releases in respect to wages by providing that a release for wages must be signed by a seaman in the presence of a shipping commissioner, and that even then, `any court having jurisdiction may on good cause shown set aside such release and take such action as justice shall require.' General Congressional policy is further shown in the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. §§ 915, 916, 33 U.S.C.A. §§ 915, 916, in which all releases not made under the express terms of the Act are declared invalid.

"The analogy suggested by Justice Story in the paragraph quoted above, between seamen's contracts and those of fiducaries and beneficiaries remains, under the

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