Fall v. Esso Standard Oil Company

• Decision Date: 22 February 1962
• Docket Number: No. 18578.,18578.
• Citation: 297 F.2d 411
• Parties: Edna FALL, as Administratrix of the Estate of Phillip Fall, Deceased, Appellant, v. ESSO STANDARD OIL COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

297 F.2d 411 (1961)

Edna FALL, as Administratrix of the Estate of Phillip Fall, Deceased, Appellant, v. ESSO STANDARD OIL COMPANY, Appellee.

No. 18578.

United States Court of Appeals Fifth Circuit.

December 13, 1961.

Rehearing Denied February 22, 1962.

Arthur Roth, Miami, Fla., for appellant.

Louis Kurz, Jr., Jacksonville, Fla., Walter X. Connor, New York City, for appellee.

Before RIVES, BROWN and WISDOM, Circuit Judges.

WISDOM, Circuit Judge.

This Jones Act litigation turns on the effect of a seaman's possession of a switchblade knife. Jimmie Murphy, a young messman in the crew of the S. S. Esso Augusta, stabbed and fatally wounded Phillip Fall, the ship's marine electrician, while the ship was tied to the Esso Refinery's docks in Baton Rouge, Louisiana.

Esso's schedule calls for three months on duty and one month off with pay. Murphy completed his first tour of three months but did not complete his second tour. He left the ship at Mobile and returned to his home in North Carolina: according to the plaintiff, "because had some trouble with the chief steward"; according to the defendant, because of "incompatibility between the steward and Murphy and nothing more". Several months later the defendant reemployed Murphy and assigned him to the Esso Augusta. While his ship was in Mobile, Murphy purchased a switchblade knife. He bought it, he said, because he had always wanted one and it was "pretty". On the tanker he used to keep the knife on a makeshift table by his bunk; "it was too big to tote around". He had no use for his knife as a messman; he used it to pare his toenails. His immediate superior, the chief steward, had seen or might have seen the switchblade knife daily during sanitation inspections. On this point the record is unclear; he had seen the knife but was not sure that it was a switchblade knife.

The defendant introduced evidence to show that Murphy came from a religious background, had received part of his education in church academies, and had the reputation of being a polite, quiet, unassuming boy — a description short of accurately describing Murphy's character on the night of April 24, 1957. That night the crew had shore leave. Murphy, without waiting to eat, left ship about seven in the evening. He went to several bars. At Mary's Bar, Mary and he were sitting together, talking, when Fall came in. Fall jerked Murphy around and asked, "What in the hell are you doing talking to my girl". They got into "a little scrap" which Mary broke up. Later that night Murphy and Fall took the company bus back to the ship. There was more trouble. A sharp turn caused Murphy to fall off the front seat. In seamanlike terms, Fall told Murphy not to "fool around with the driver". They engaged in an exchange of words something less than complimentary. They were still arguing over who could whip whom when the bus reached the Esso refinery, a fenced-in enclosure protected by security guards at a gate about a mile and a half from the ship. Murphy and Fall scuffled after leaving the bus, but the driver and two of the guards separated the men and escorted them to the gang plank, apparently to prevent further trouble. The guards testified that the men looked as if they had been drinking but neither was drunk. We may safely assume, however, that their standards for determining drunkenness in seamen are lower than ordinary police standards.

Murphy, muttering to himself, went through the messroom to his quarters. It was two-thirty in the morning. Schuler, an assistant engineer, and two of the crew were drinking coffee in the petty officers mess. In a matter of moments, Murphy came back through the mess with the switchblade knife in his hand. Schuler asked, "What are you doing with that knife?" Murphy said that he was "going to get the electrician", and went on through the mess. Schuler followed, but not soon enough. When he reached Fall's quarters he found Murphy and Fall struggling, Murphy with the open knife in his hand. Fall, forty-six years old, weighed about a hundred and forty pounds; Murphy, nineteen years old, weighed about two hundred pounds. Schuler managed to break in between the two. Fall grabbed his chest and ran down the passageway, leaving a trail of blood up the gangway. There he collapsed. He died on the way to the hospital.

The defendant argues that Fall persistently mistreated Murphy. Murphy testified, however, that before the scrap, although he knew Fall by sight as the electrician, he did not even know his name. He said: "The electrician and I have never had any serious arguments or trouble between us prior to last night. He and I weren't too friendly with each other though, because he always considered me like a dog or a lowly messman."

Fall's widow, as administratrix, sued Esso Standard alleging, as her first cause of action, negligence under the Jones Act, 46 U.S.C.A. § 688, and as her second cause of action, unseaworthiness under the general maritime law. The claim under the Jones Act includes an assertion that the death was caused by the defendant's "failure, neglect or omission" to furnish a seaworthy vessel. On the defendant's motion, the district court struck the references in the complaint's first cause of action as to unseaworthiness and dismissed the complaint as to the second cause of action alleging unseaworthiness. The court also struck the allegations in the complaint which contend that the decedent's claim for pain and suffering caused by unseaworthiness survived in the estate. The court allowed an amendment to the complaint to include a claim for funeral expenses, but did not rule on the merits of the claim because of the jury verdict for the defendant.

Each party moved for a directed verdict. The motions were denied. The jury gave a verdict for the defendant on the question of negligence under the Jones Act. The plaintiff appeals from (1) the trial judge's order dismissing the complaint as to unseaworthiness, (2) the final judgment in favor of the defendant, and (3) the ruling on funeral expenses.

The distinguishing characteristic of a switchblade knife is that with the press of a button its blade extends and is securely locked open. The knife becomes a stiletto. The handle of Murphy's knife is four and a quarter inches long and shaped like the hilt of a dagger. The blade is heavy steel, three and a half inches long; the last two inches narrow to a point. The point is sharp. Blade out, the knife is an eight-inch stiletto — unsuitable as a screw driver, perhaps usable for paring toe-nails, and highly suitable for stabbing an opponent in a fight.

The complaint and the pre-trial depositions show that the plaintiff's counsel constructed his case on the theory that Murphy's switchblade knife was a dangerous weapon. On that assumption and on evidence showing the defendant's failure to take any action with regard to the knife, counsel contended that the defendant was liable under the Jones Act for negligence and under the general maritime law for failure to furnish a seaworthy vessel. Half of the case collapsed when the trial judge dismissed the complaint as to unseaworthiness. The other half fell apart during the trial when the district judge made it clear that, as a matter of law, he regarded the knife as a useful tool and not a dangerous weapon per se. Consistent with this view, the district judge refused to grant any of the plaintiff's requested charges referring to the knife as a dangerous weapon and gave no instructions with regard to "dangerous weapons" or "switchblade knives". Instead, he instructed the jury:

"Now, there was some talk here in the beginning of this case about negligence based on the failure to inspect this crewman Murphy\'s quarters, or pick up his knife, or matters of that sort — confiscate his knife. That issue of negligence is not submitted to you. I have determined as a matter of law that that question should not (537) be submitted to you."

Just before withdrawing this crucial issue from the jury, the district judge stated:

"In order for the plaintiff to recover damages in this case, it is incumbent upon her to prove by a preponderance of the evidence that the defendant\'s responsible agents knew, or reasonably should have known, that its employee, Jimmie Murphy, was dangerous to other persons and likely to assault or commit violent acts upon his fellow employees at the time in question."

Just after withdrawing the dangerous weapon issue, the district judge instructed the jury:

"The issue of fact that I want you gentlemen to decide is whether or not it was negligence under all the circumstances for the Esso Standard Oil Company, through its agents — either through the security guard at the gate who let the men in at the gate of the Refinery, or through the guard who drove the jitney bus down to the turn-around from the gate, or through the man who was called out by the jitney driver to talk to these two men when they got back to the ship there, or through the negligence of the third officer or the third engineer, Schuler, or some other person aboard the ship there — whether under all the circumstances this assault by Murphy on Mr. Fall should reasonably have been anticipated. Would a reasonably prudent person under the circumstances have anticipated that there was going to be such an assault and taken proper steps to prevent it."

A useful tool may be a dangerous weapon. Lizzie Borden took an axe. A weapon may be a useful tool. The trial judge cleaned fish with his switchblade knife.¹ But an axe belongs in a tool shed; a seaman cannot bring one aboard ship. A switchblade knife may be appropriate in a fishing box; a messman cannot lawfully bring one aboard ship and, in this case, making bad matters worse, keep it on a table near his bunk, presumably for instant use. Because of the dual nature of certain instruments as tools and weapons, the determination of the character of the instrument for purposes of the litigation is usually one for the...