Goltzman v. Rougeot

• Decision Date: 02 August 1954
• Docket Number: Civ. A. No. 3263.
• Citation: 122 F. Supp. 700
• Parties: GOLTZMAN et al. v. ROUGEOT et al.
• Court: U.S. District Court — Western District of Louisiana

122 F. Supp. 700

GOLTZMAN et al. v. ROUGEOT et al.

Civ. A. No. 3263.

United States District Court, W. D. Louisiana, Lake Charles Division.

August 2, 1954.

William R. Tete and Jones, Kimball, Harper & Tete, Lake Charles, La., for plaintiffs.

Alan B. Cameron, Orange, Tex., Porter & Stewart, Lake Charles, La., for defendants.

DAWKINS, District Judge.

Plaintiffs, as citizens of Louisiana, sued defendants, alleged to be citizens of Texas, in damages for the loss of a barge load of scrap metal alleged to have been caused by the negligence of defendants or their employees, in undertaking to transport it wholly within the State of Louisiana along the Intracoastal Canal. The action was brought under Act No. 132 of the Louisiana Legislature of 1948, LSA-R.S. 13:3479 et seq., which, in substance, permits the suing of nonresident owners or operators of ships or vessels upon the navigable waters within the state, and the serving of process upon the Secretary of State.

Defendants filed a plea to the jurisdiction of this Court claiming primarily the unconstitutionality of the state statute on the ground that it denied due process, Art. 1, Sec. 2 of the Constitution of the State and Sec. 1 of the 14th Amendment to the Federal Organic Law. It was further contended that one of the plaintiffs, Samuel Goltzman, was a citizen of Texas, the same as the defendants, and therefore no diversity. In addition, defendants charged the fair value of the property lost did not exceed $3,000, the minimum jurisdiction of this Court. The plea also embraced a claim 1(b) that defendant had not received notice of the suit as required by the Act, but in stipulations between the parties this contention was "abandoned as having been subsequently cured by proper notice * * *". Otherwise, it was further stipulated that the plea to the jurisdiction should be submitted on briefs and referred to the merits, with the understanding that when the case is heard "* * * evidence will first be adduced to establish the facts pertaining to the jurisdiction". Later at a pre-trial hearing before my late associate, Judge Porterie, on April 25, 1952, it was agreed that the entire matter of jurisdiction, and the constitutionality of Act No. 132 of 1948 should "be referred to the merits". Judge Porterie having died on March 24, 1953, the case was tried and submitted on briefs later to be filed and the record was transmitted to the undersigned on May 16, 1954. Thus, except for the jurisdictional amount and the citizenship of Sam Goltzman, the plea is one of the constitutionality of the State statute.

It appears to be conceded that the present measure was an attempted adaptation from the motor vehicle Act, No. 86 of 1928, LSA-R.S. 13:3474, 13:3475, to water craft. The defendants seek to differentiate between the two on the ground that the motor vehicle act, as well as similar statutes in other states, was upheld under the police power for reasons of vital necessity or safety upon the highways; whereas, the navigable waters within and touching the states are natural highways (the Intracoastal Canal involved here having been constructed by and being now owned by the United States) subject to free use by everyone; and further, that in most of the cases construing the motor vehicle statutes, the defendants were foreign corporations which could be excluded from the State, except upon the latter's terms, while this principle has no application to individual citizens.

The constitutionality of the motor vehicle statute of Louisiana was sustained by this Court in Moore v. Payne, D.C., 35 F.2d 232, as were similar statutes in the other states, Kane v. State of New Jersey, 242 U.S. 160, 37 S.Ct. 30, 61 L.Ed. 222; Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091; Tublitz v. Hirschfeld, 2 Cir., 118 F.2d 29; Andrews v. Joseph Cohen & Sons, Inc., D.C., 45 F. Supp. 732, and its provisions are sufficiently set out in the Moore case without the necessity of repeating them here. It simply declares that the exercise by "non-residents of the rights and privileges conferred by existing laws" of "motor vehicles on the said highways * * * shall be deemed equivalent to an appointment * * * of the Secretary of the State" as their "lawful attorney for service of process * * *." In the present instance the law declares that "the operation, navigation or maintenance by a non-resident * * * of a boat, ship, barge or other water craft" in navigable waters of the State "* * * shall be deemed equivalent to an appointment * * * of the Secretary of State * * * for service of process * * *" and the method of service is the same in both statutes.

It is argued by defendants that the hazards incident to the operation of motor vehicles upon the highways are such as to justify, in fact to compel, the exercise by the states of their police power to insure safety for all users, but that no such compelling consideration exists in the operation of water craft. As to the claimed distinction between state owned highways and navigable water courses, it is not believed that the difference in ownership, as between the states and the Government makes any difference. The latter are arteries of travel and commerce whose users within the borders of the states enjoy the same police protection as those upon the highways and as pointed out by the complainant, the dangers of collisions, explosions and damage to other craft, wharves and similar shore structures bordering thereon, are serious though perhaps not as numerous as accidents upon the highways. The difference therefore is one only of degree which furnishes no ground for holding the present Act unconstitutional. The states have a wide discretion to determine when and in what circumstances they will exercise their police power and the courts will not interfere except in cases of clear and arbitrary abuse. 16 C.J.S., Constitutional Law, § 175, page 541 et seq.; Sugg v. Hendrix, 5 Cir., 142 F.2d 740. It is believed therefore that the assailed statute is constitutional.

As to the jurisdictional amount, the complaint alleges that the value of the scrap metal lost through the negligence of defendant was the sum of $8,050. It consisted principally of deteriorated pipe discarded by the Shell Oil Company for which the sum of $180 was paid, plus the cost of cleaning up its yard after the material was removed, at a cost of approximately $400. It was loaded on two barges, one steel and the other wood, which, according to witnesses familiar with their capacities, were capable of carrying maximums of not more than 25 to 30 tons each. Men of experience in such matters, including agents of Shell, testified there were about 25 to 30 tons altogether. There were several bidders for the scrap but that of one Reed was the highest. Reed testified he paid the owner the sum stated, cleaned up the yard and sold it to plaintiffs for $1,500. Defendant agreed to haul it to Lake Charles from Black Bayou for $400. Julius Bourque, testifying for plaintiff, estimated that there were between 100 and 110 tons of the scrap, including pipe but only about one-third was actually delivered to plaintiffs in Lake Charles. Further that this was the "worst pipe in the pile at Black Bayou." This witness afterwards went into the scrap business for himself and was no longer working for plaintiffs at the time he testified. He estimated that about 35 tons had been loaded and delivered on the steel barge.

The testimony as to the quantity of material purchased is in serious conflict, some witnesses for plaintiff fixing it at the figure above stated of 100 to 110 tons; while those for defendant say there were only about 25 to 30 tons. They are also wide apart as to the value, one of the plaintiffs, Sam Goltzman, having testified that 30 to 35 tons were sold from that delivered by the steel barge for $67.50 per ton. On the other hand, defense witnesses fix the value as a whole at about $25 per ton. There is also dispute as to whether there was more and better material on the wooden barge which sank than on the steel one which was delivered. In view of plaintiffs' evidence tending to show a value of the material in excess of $3,000, although it admittedly paid only $1,500 for the whole, there appears to be an issue of fact as to value, which, in the absence of a clear showing that in no event could it have been sufficient to come within the minimum jurisdiction of this court, the allegations of the complaint control. Therefore the plea to the jurisdiction based upon amount in controversy is overruled.

Sam Goltzman testified that he had been living at 1235 12th Street in Lake Charles since he went into the scrap business in that city some years earlier but that he bought a home in Houston, Texas, in August after the suit was filed on April 5, 1951. If he was a citizen of Louisiana at that time this court had jurisdiction. Wichita R. & Light Co. v. Public Utilities Commission, 260 U.S. 48, 43 S.Ct. 51, 67 L.Ed. 124; Thompson v. Moore, 8 Ark., 109 F.2d 372; Boesenberg v. Chicago Title & Trust Co., 7 Cir., 128 F.2d 245, 141 A.L. R. 565; Lyons v. Weltmer, 4 Cir., 174 F.2d 473; Mason v. Salter, D.C., 92 F. Supp. 627; Shreveport Long Leaf Lumber Co. v. Wilson, D.C., 38 F.Supp. 629. If it be true that his family lives in Houston, where he testified he purchased a home this would not necessarily make him a citizen of Texas. He swore that his business is all in Lake Charles where he personally lives and visits his family in Houston about twice a month. He testified further that he bought the Houston home because his wife was suffering from asthma and the Lake Charles climate did not agree with her; hence the reason for the change. A man's domicile is where he lives and maintains a permanent residence. Estopinal v. Michel, 121 La. 879, 46 So. 907, 19 L.R.A.,N.S., 759; First National Bank v. Hinton, 123 La. 1018, 49 So. 692; Caufield v. Cravens, 138 La. 283, 70 So. 226; Burke v. Massachusetts Bonding & Ins....