Cleveland Tankers v. Tierney

• Citation: 169 F.2d 622
• Decision Date: 28 June 1948
• Docket Number: No. 10589-10592,No. 10580.,10589-10592,10580.
• Parties: CLEVELAND TANKERS, Inc., v. TIERNEY et al., and four other cases. THE CLEVECO. THE ADMIRAL.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

169 F.2d 622 (1948)

CLEVELAND TANKERS, Inc.,

v.

TIERNEY et al., and four other cases. THE CLEVECO. THE ADMIRAL.

Nos. 10589-10592, No. 10580.

Circuit Court of Appeals Sixth Circuit.

June 28, 1948.

Lee C. Hinslea and Lucian Y. Ray, both of Cleveland, Ohio (Leckie, McCreary, Schlity & Hinslea, Lee C. Hinslea and Lucian Y. Ray, all of Cleveland, Ohio, on the brief), for Cleveland Tankers, Inc.

Victor M. Todia, of Cleveland, Ohio, and Lowell Goerlich, of Toledo, Ohio (Victor M. Todia and Harry A. Gordon, both of Cleveland, Ohio, and Silas B. Axtell, of New York City, on the brief), for Thomas Tierney et al., James A. Smith et al., Frank Szwed et al., Margaret M. Swanson and Grace O. Cowan, et al.

Lamb, Goerlich & Mack, Edward Lamb, and Lowell Goerlich, all of Toledo, Ohio, for James A. Smith et al., Frank Szwed et al., and Margaret M. Swanson et al.

Before SIMONS, ALLEN, and MARTIN, Circuit Judges.

ALLEN, Circuit Judge.

These appeals arise out of awards made by a commissioner in a series of admiralty cases under the Jones Act, 46 U.S.C. § 688, 46 U.S.C.A. § 688. On December 2, 1942, the Tug Admiral and the Barge Cleveco, with all of their crews, were lost in a storm on Lake Erie. In the ensuing litigation this court affirmed a determination that the Tug Admiral was unseaworthy; that "the owner had knowledge of that fact, and was negligent in not furnishing a seaworthy ship; and that the loss of the tug and the barge was caused by the unseaworthiness of the tug." The Cleveco, 6 Cir., 154 F.2d 605, 609. The petitions for exoneration from and limitation of liability on behalf of Cleveland Tankers, Inc., as owner of the Admiral and the Cleveco were, accordingly, dismissed.

The appeal of Cleveland Tankers, Inc., No. 10589, involves fourteen of the death claims filed. Awards were made in twenty-five out of twenty-nine claims, eleven of which have been paid. As to the awards challenged here, Cleveland Tankers, Inc., contends that in the light of the evidence and the applicable principles of law they are erroneous and must be reversed. In No. 10590 eight claimants cross-appeal, claiming (1) that the awards are inadequate; (2) that the awards should have included personal loss and suffering of the decedents while they lived; (3) that the court erred in not awarding interest on the awards prior to June 3, 1947. The questions of personal loss and suffering and of interest are raised in appeal No. 10952, while appeal No. 10580 is confined to the question of interest. In No. 10591 two claimants appeal from the decree denying each of them damages.

Appeal No. 10589

The applicable statute on the question of liability in No. 10589 is 46 U.S.C. § 688, 46 U.S.C.A. § 688, which establishes a right of action for injury to or death of seamen, and provides that "in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable." It thus incorporates by reference § 51, 45 U.S.C., 45 U.S.C.A. § 51, part of the Federal Employers' Liability Act, the pertinent portions of which read as follows:

"Every common carrier by railroad while engaging in commerce between any of the several States * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in the case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment."

As is evident, the statute makes a distinction between the classes of beneficiaries. The next of kin, in order to avail themselves of the statute, must be "dependent" upon the employee who has been injured or has died owing to the negligence of the employer. No such limitation is imposed as to husband and wife, children or parents. However, the damages recoverable under the statute are held to be equivalent to compensation for deprivation of the reasonable expectation of pecuniary benefits that would have resulted from the continued life of the deceased. Chesapeake & Ohio Ry. Co. v. Kelly, 241 U.S. 485, 36 S.Ct. 630, 60 L.Ed. 1117, L.R.A. 1917F, 367; American Rd. Co. of Porto Rico v. Didricksen, 227 U.S. 145, 149, 33 S.Ct. 224, 57 L.Ed. 456. The liability is for pecuniary damages and for that only. Michigan Central R. Co. v. Vreeland, 227 U.S. 59, 33 S.Ct. 192, 57 L.Ed. 417, Ann. Cas. 1914C, 176.

The amount of contribution by the decedent during his lifetime to the claimed beneficiary has a direct bearing on the issue of reasonable expectation of pecuniary benefit. Moffett v. Baltimore & Ohio R. Co., 4 Cir., 220 F. 39. In case of a widow and minor children dependency is presumed. The Erie Lighter 108, D.C.N.J., 250 F. 490, 498. But when the beneficiaries are parents of an adult child, pecuniary loss must be alleged and proved. Garrett v. Louisville & Nashville R. Co., 235 U.S. 308, 318, 35 S.Ct. 32, 59 L.Ed. 242.

As to each of the fourteen appellees in No. 10589, Cleveland Tankers, Inc., contends that there is no substantial proof of dependency of the claimants upon the persons killed by its negligence, and hence no reasonable expectation of pecuniary benefit is shown. In eleven cases the beneficiaries were parents of adult sons. In one case a brother, and in two cases wives were beneficiaries.

With reference to all claims covered by this appeal, we think, with an exception discussed below, the commissioner's awards are neither "erroneous in point of law nor extravagant in fact." Cf. Brooklyn Eastern District Terminal v. United States, 287 U.S. 170, 176, 53 S.Ct. 103, 105, 77 L.Ed. 240. We bear in mind that the hearing in admiralty in this court is in the nature of a trial de novo. The Seeandbee, 6 Cir., 102 F.2d 577, 581. This court has the final responsibility for the facts as well as for the law; but giving to the testimony the independent consideration required, we think the conclusion of the trial court confirming the commissioner's findings is not clearly erroneous. While the commissioner states certain findings in equivocal terms, his awards are nonetheless supported by the evidence. Definite proof of financial contribution by the decedents was given in every case. The fact that no documentary evidence was kept as to these gifts is not conclusive. Sailors do not have much opportunity for regular correspondence, and the usual family does not possess filing cases to keep letters from their children. The circumstance that, as was the case in several instances, the steady unmarried son contributed far out of proportion to other children, married or unstable, does not require reversal of the awards in question. When considered in light of the record, these facts are not inconsistent with the intention on the part of the decedent to contribute to the financial well-being of members of his close family circle. This is particularly true with reference to parents whose advancing age makes them the natural objects of affectionate interest from their children. In several of these cases, while the documentary evidence was slight, there was corroborating evidence of regular contribution, and no testimony to the contrary. In the cases covered by No. 10589, the judgment of the District Court is correct with the exception of the award to Nellie Frost, wife of Leonard Frost.

Frost was 35 years old at the time of the disaster, a watchman earning about $180 a month. He married Nellie Frost in 1936, and in 1941 they quarreled and separated. Frost visited his wife after that when he went to Chicago, where ...