Emerson v. Holloway Concrete Products Company, 17839.

• Decision Date: 29 June 1960
• Docket Number: No. 17839.,17839.
• Citation: 282 F.2d 271
• Parties: Ellen EMERSON, Claimant, Appellant, v. HOLLOWAY CONCRETE PRODUCTS COMPANY, Inc., Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

282 F.2d 271 (1960)

Ellen EMERSON, Claimant, Appellant, v. HOLLOWAY CONCRETE PRODUCTS COMPANY, Inc., Appellee.

No. 17839.

United States Court of Appeals Fifth Circuit.

June 29, 1960.

COPYRIGHT MATERIAL OMITTED

Alton G. Pitts (of Maguire, Voorhis & Wells), Orlando, Fla., for appellant.

Wilson Sanders (of Sanders, McEwan, Schwarz & Mims), Orlando, Fla., for appellee.

Before TUTTLE, JONES and BROWN, Circuit Judges.

JONES, Circuit Judge.

The appellee, Holloway Concrete Products Company, Inc., will herein be referred to as Holloway. It engaged in the concrete business and in the distribution of building material. Its principal place of business was at Orlando, Florida. Franklin Williamson was its president and general manager. Thomas C. Ross was its construction engineer. In the spring of 1954 Williamson negotiated for Holloway the purchase of the 27-foot inboard cruiser, the Overtime. The boat was powered by a gasoline motor. When not in use it was berthed at the Sanford Boat Works in Sanford, Florida. The boat was used, for a time after it was purchased, for the pleasure of Williamson and for the entertainment of customers. For about a year prior to July 4, 1957, the use of the boat by Williamson was negligible. Ross was free to use the boat and did frequently use it for himself and his family, and from time to time they would take customers or prospective customers of Holloway out on the boat. Ross, with the acquiescence of Williamson, assumed the responsibility for the maintenance of the boat.

On July 3, 1957, Ross was using the boat and had trouble with the bilge pump. The following day he went to the boat yard to remove the pump in order to have it repaired. At the invitation of Ross, his personal and business friend, Francis Emerson, went with him. Emerson was an architect practicing in the area in which Holloway was engaged in the concrete and building materials business. When Ross and Emerson went on the boat, it was found that water was standing in the bilge and Ross decided to pump the water out before removing the pump. The pump was electrically operated. In order to avoid draining the power of the batteries while operating the pump, Ross chose to run the engine so that the generator might keep the batteries charged. The electric hookup was such that one or the other of the two batteries might be operated but in normal operation both batteries were not in use at any one time. Ross attempted unsuccessfully to start the motor with one of the batteries. He then threw a switch which cut that battery out and cut the other in. It also was too weak to start the motor. He then concluded that both batteries should be hooked together to get the engine running. This was not an unusual practice and a jumper wire was kept on board for that purpose. Ross knew, as did Williamson, that sparks would or might fly off as this operation took place. Starting the motor by the use of the jumper wire required two people, one to hold the wire against the poles of the batteries and the other to manipulate the starting mechanism. Ross asked Emerson to assist. As Ross was explaining the method of hooking the batteries together and showing him the process, an electric spark caused an explosion of gas in the boat's bilge, the boat took fire, burned, and sank. Emerson died from injuries received by him.

Judicial proceedings were initiated by the filing by Holloway of a petition for exoneration and for limitation of liability, under the Limitation of Shipowners' Liability Act, 46 U.S.C.A. § 182 et seq. A claim for damages to another boat was listed with the claim of Ellen Emerson, wife of Francis Emerson, for the wrongful death of her husband. Holloway proposed to convey the boat, then and thereafter at the bottom of the water in which it sank, to a trustee in discharge of its liability. Mrs. Emerson answered charging unseaworthiness and negligence, and denied the right of Holloway to the benefit of the limitation of liability. Mrs. Emerson filed a claim against Holloway for the negligent death of her husband asserting he was an invitee, that Holloway's negligence caused his death, and claimed damages in the amount of $200,000. To this claim Holloway filed an objection, saying its boat was seaworthy, and that the invitation of Ross to Emerson was not made in the scope of the employment of Ross. There was a denial of negligence of Holloway and its agents and employees.

The district court found that Ross, as an agent and employee of Holloway, had custody of the boat. It was found that Emerson voluntarily accompanied Holloway's agent Ross upon the boat, and that Ross, the agent of Holloway, was not guilty of any gross or wanton negligence with respect to Emerson. Having so found, the court determined as a matter of law that the claim of Mrs. Emerson had not been established. This appeal followed. On appeal it is urged that the question whether there is liability of Holloway to Mrs. Emerson is to be determined by the law of Florida; that Emerson was an invitee upon the boat but, whether he was an invitee or licensee, Holloway owed him a duty of reasonable care; that this duty was breached; that Emerson's death resulted from the negligence of Holloway's agent and employee; and that recovery should not be denied to Mrs. Emerson. The district court denied the petition of Holloway for limitation of liability. No appeal is before us with respect to this ruling.

The common law allowed no recovery for wrongful death. Dean Prosser has stated the rule and observed, "The result was that it was more profitable to kill the plaintiff than to scratch him, and that the most grievous of all injuries left the bereaved family of the victim, who frequently were destitute, without a remedy." Prosser on Torts, 2d ed. 710. And so in admiralty, in the absence of statute, the death of a person did not give rise to a cause of action, Norris, Maritime Personal Injuries, 361 et seq., § 125; The E. B. Ward, Jr., C.C., 16 F. 255. The remedy in England was provided by Lord Campbell's Act and each of the states has enacted a wrongful death statute. In the area of admiralty the Congress has created a cause of action for the death of seamen by the Jones Act, 46 U.S.C.A. § 688. A remedy for death on the high seas is provided by a statute known as the Death on the High Seas Act, 46 U.S.C.A. § 761 et seq. Emerson was not a seaman and the injury resulting in his death occurred on inland water. Neither of these statutes is available to Mrs. Emerson. Nor is she entitled to death benefits from the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq.

Where death occurs on, or as a result of injuries received on navigable waters within a state, as was the case here, admiralty jurisdiction exists to enforce the right created by the state statute. Where the injured person survives and is the plaintiff or libellant in admiralty the principles governing are the rules of maritime law rather than the state substantive law and the duties of the shipowner are not limited by the law of the state. From this it follows that the person injured has a right to a seaworthy ship, and common law distinctions between licensees and invitees are inapplicable. Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550. But where the action is for wrongful death the liability, although established and enforced in admiralty, is to be measured by state standards, and the issues are to be determined in accordance with the substantive law of the state. Any defenses which are available under the law of the state may be successfully interposed in the admiralty proceeding. Goett v. Union Carbide Co., 361 U.S. 340, 80 S.Ct. 357, 4 L.Ed.2d 341. Hess v. United States, 361 U.S. 314, 80 S.Ct. 341, 4 L.Ed.2d 305; The Tungus v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524; Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210; Graham v. A. Lusi, Limited, 5 Cir., 1953, 206 F.2d 223; Graff v. Parker Bros. & Co., 5 Cir., 1953, 204 F.2d 705; Quinette v. Bisso, 5 Cir., 1905, 136 F. 825, 5 L.R.A., N.S., 303; 1 Benedict on Admiralty, 6th Ed. 392 § 148; Norris, Maritime Personal Injuries, 373 et seq. §§ 130, 131. This is true unless the state law has adopted the general maritime concepts of negligence applicable in the case of death resulting from a maritime injury, rather than its own standards of negligence liability. Goett v. Union Carbide Corp., supra.

The State of Florida has had for many years a statute¹ providing for an action by libel in rem or in personam by a widow² for the death of her husband caused by the negligence of a boat or of a person employed thereon. As the appellant has recognized, the problem here is to determine what law the courts of Florida would apply to the facts in this case if the case were presented in the courts of that state as an action for wrongful death. Such is the principle applied in the case of Graham v. A. Lusi, Ltd., supra, where it is held:

"The statute must be applied in admiralty just as if the suit had been brought in the state courts, and any defenses which are open to the appellee under the jurisprudence of the state, if successfully maintained, will bar recovery under the libel." 206 F.2d 223, 225.

In the Graham case the widow of the decedent sought to recover upon a showing that the injury resulting in death was caused by unseaworthiness. Under the maritime substantive law unseaworthiness would have given the injured person a right of action even though the injured plaintiff was guilty of contributory negligence and the defendant shipowner had used due care. In holding contrary to the plaintiff's contentions, this Court, in the Graham case, said:

"There is a complete absence of merit in appellant\'s attempt to avoid the foregoing defenses by invoking a right of action for unseaworthiness which, being a right of action the deceased might have maintained had he simply been

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