Gaymon v. Quinn Menhaden Fisheries of Tex., Inc., A-24

• Citation: 108 So.2d 641
• Decision Date: 03 February 1959
• Docket Number: No. A-24,A-24
• Parties: Verla Mae GAYMON, Administratrix of the Estate of Robert S. Gaymon, deceased, Appellant, v. QUINN MENHADEN FISHERIES OF TEXAS, INC., Appellee.
• Court: Florida District Court of Appeals

Page 641

108 So.2d 641

Verla Mae GAYMON, Administratrix of the Estate of Robert S. Gaymon, deceased, Appellant, v. QUINN MENHADEN FISHERIES OF TEXAS, INC., Appellee.

No. A-24.

District Court of Appeal of Florida, First District.

Feb. 3, 1959.

George T. Delves, Jacksonville, for appellant.

John G. Hodges Tampa and Edward H. Robinson, Jacksonville, for appellee.

CARROLL, DONALD K., Judge.

This is an appeal from a summary judgment entered by the Circuit Court for Nassau County in favor of the defendant in an action under the Jones Act (46 U.S.C. § 688) brought by the appellant, the administratrix of the estate of a deceased seaman, against his employer. The only question before us is whether there was a genuine issue of material facts before the court when the summary judgment was entered in order to justify such entry.

The record shows: The seaman was employed by the appellee-defendant as a crewman on one of its fishing boats. On Saturday afternoon, April 30, 1955, this boat docked at the defendant's plant at Port Arthur, Texas. Each of the crewmen on the boat was given a ten dollar advance and relieved of duty until the next Monday morning. The deceased was seen in town by some of the other members of the crew between midnight and 1:00 A.M. He returned to the boat between 6:30 and 7:30 A.M., Sunday, May 1st, and did not appear to be intoxicated. He talked with the cook, who gave him the keys to the galley so he could get something to eat, at which time the deceased was fully clothed. The deceased returned the keys and was never again seen alive. On Tuesday, May 3, 1955, the deceased, wearing only an undershirt, was discovered in the water about a half mile from where the boat was moored. The shirt and trousers he was wearing when he was seen by the cook were found on his bunk in the forecastle of the boat, where he was bunking with about ten other crewmen.

The evidence further showed that the area around the boat was unlighted and dark; that there was no watch posted that night; that the crewmen had to board the boat over the side, over a short rail, because the boat was not equipped with a gangplank; that there was a space between this boat and a sister ship moored alongside, which space was large enough for a man to fall through; that the boat was not equipped with toilet facilities, so the crew, in deference to nature, had to go over the side.

The evidence summarized in the preceding paragraph seems sufficient to show negligence on the part of the employer, but the evidence wholly fails to show that such negligence had anything to do with the seaman's death. Even his manner of death is unexplained. A court, of course, may not speculate as to how the death occurred.

In her brief the appellant cites numerous federal and state decisions to the effect that the Jones Act, like workmen's compensation laws, should be liberally construed in aid of its beneficent purpose to give protection to seamen and to those dependent upon their earnings, and we agree with this rule. See, for instance, Cortes v. Baltimore Insular Line, 287 U.S. 367, 53 S.Ct. 173, 77 L.Ed. 368. But we are referred to no case, and independent research has revealed none, in which a court has dispensed with the necessity for a plaintiff to prove that the employer's negligence proximately caused the accident resulting in the seaman's injury or death. Such a requirement is fundamental in the administration of justice in our system. The doctrine of 'res ipsa loquitur' may not be applied to the circumstances of this case.

Out conclusion therefore is that the Circuit Court was correct in holding that there was no genuine issue as to a material fact based upon the evidence before the court at the hearing on the motion for summary judgment.

But this conclusion concerning the absence of evidence on the plaintiff's part serves to emphasize the decisive importance of another of the court's rulings denying the plaintiff's motion for extension of time, which ruling is the subject of another assignment of error, as hereinafter set forth.

The defendant's motion for summary judgment was filed on May 31, 1957. Attached to the motion were several affidavits by officers and crew members employed by the defendant, whose statements seek to negative the statements of ultimate fact alleged in the complaint.

Upon receiving this motion and attached affidavits the plaintiff's counsel immediately traveled to the State of Maryland, where he procured affidavits of two crew members. The statements contained in these affidavits seek to support the statements of ultimate fact alleged in the complaint. While on this mission, the plaintiff's counsel attended the taking of depositions of two crew members noticed by the defendant.

Within a few days after procuring affidavits and taking the depositions above mentioned, the court set defendant's motion for summary judgment for hearing on June 12, 1957. On this date counsel for both parties appeared before the court and presented their argument in support of and in opposition to the motion for summary judgment. At the conclusion of the oral presentation the plaintiff's counsel filed with the court a written motion pursuant to Rule 1.36(f) of the Florida Rules of Civil Procedure, 30 F.S.A. By this motion the plaintiff's counsel moved the court for additional time in which to obtain affidavits and take depositions in opposition to defendant's motion for summary judgment. This motion was supported by an affidavits signed by the plaintiff's counsel in which he stated that he had made a preliminary investigation as to the cause of the death of the seaman on whose behalf the suit was brought; that such investigation included the interrogation of several crew members of the ship on which the seaman was working at the time of his death; that from this investigation counsel was convinced that a number of the crew members had knowledge of the facts alleged in the complaint who had not been questioned but who lived at great distances from the jurisdiction of the court in which the suit was pending, to wit: the States of Texas and Maryland; that because of such distances the plaintiff's counsel had been unable to obtain affidavits or depositions in time for the hearing on defendant's motion for summary judgment; that some of the witnesses interrogated by counsel had revealed circumstances indicating the manner in which the deceased met his death while in the course of his employment. From this affidavit it is apparent that under the peculiar circumstances of this case the witnesses who might support the cause of action sued upon were scattered in remote sections of the country and time would be required in order to make their testimony available to the court in any final disposition of the cause.

In the summary judgment from which this appeal is taken, the court stated that it was of the opinion that the affidavit of counsel above-mentioned stated no facts or reason which would warrant continuance of the action for the further taking of depositions or produrements of affidavits in opposition to the motion for summary judgment.

Rule 1.36, Florida Rules of Civil Procedure, provides for the entry of summary judgment or decree in proper cases. Subparagraph (f) provides:

'When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing the motion (for summary judgment) that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or decree or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other orders as it just.' In commenting upon the true auspice for a motion for summary judgment, our Supreme Court in National Airlines, Inc., v. Florida Equipment Co. of Miami, Fla., 71 So.2d 741, 744, said: 'Of course, a litigant by merely asserting a fact, without any evidence to support it, cannot avoid a summary disposition of his case. Before this phase of the rule comes into play, the record must show that all evidence which may support that litigant's contentions must be before the Court.'

The rule authorizing the summary final disposition of cases by judgment or decree does not contemplate that the motion will be granted in those cases where because of peculiar circumstances a party is unable on short notice to interrogate witnesses and procure affidavits or depositions in opposition to the motion asserted by his opponent. Public policy requires that our courts be ever vigilant in making summary disposition of causes lest the application of the rule result in eroding or destroying the fundamental right of litigants under our system of jurisprudence to have the issues made by the pleadings tried by a jury of fellow citizens. The importance of preserving the jury system, and the concomitant right of a litigant to a jury trial on the merits of his cause, should be zealously protected.

From the affidavit signed by the plaintiff's counsel in this case it cannot be questioned that 'all evidence which may support that litigant's contention' was not before the court at the hearing on the defendant's motion for summary judgment. The reason why all such evidence was not then available for presentation to the court at the hearing is amply clear. The proper procedure in this case would have been for the trial court either to have postponed final disposition of the motion for such reasonable time as may have been necessary for the plaintiff's counsel to interrogate the other members of the crew and procure from them such affidavits as he could, or to deny the motion and promptly set the cause for trial on the merits. In either event the plaintiff would have been afforded her opportunity properly to defend against the motion for summary judgment or to fully present her evidence before a jury on a trial of the issues.

The question here involved is more than a...