Hassan v. AM Landry & Son, Inc.

• Decision Date: 26 July 1963
• Docket Number: No. 19641.,19641.
• Citation: 321 F.2d 570
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: Mrs. Lydia Sandoz HASSAN, Administratrix of the Estate of Owen J. Sandoz, Deceased, Appellant, v. A. M. LANDRY & SON, INC., and the Travelers Insurance Company, Appellees.

321 F.2d 570 (1963)

Mrs. Lydia Sandoz HASSAN, Administratrix of the Estate of Owen J. Sandoz, Deceased, Appellant, v. A. M. LANDRY & SON, INC., and the Travelers Insurance Company, Appellees.

No. 19641.

United States Court of Appeals Fifth Circuit.

July 26, 1963.

Raymond H. Kierr, New Orleans, La., Samuel C. Gainsburgh, New Orleans, La., Harry B. Garland, Opelousas, La., Eldon E. Fallon, New Orleans, La., of counsel, for appellant.

Donald L. King, George Denegre of Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, La., for appellees.

Before RIVES, LEWIS,^* and BELL, Circuit Judges.

RIVES, Circuit Judge.

This appeal is from a judgment sustaining the defendants' motion to dismiss or in the alternative for summary judgment. The complaint was filed by Mrs. Lydia Sandoz Hassan, as administratrix of her deceased son, Owen J. Sandoz, against A. M. Landry & Son, Inc., his employer at the time of his death, and its insurer Travelers. According to the complaint, the decedent lost his life on June 1, 1958 as the result of the crash landing of a helicopter in the Gulf of Mexico, while he was being transported to his vessel. The complaint was filed May 31, 1961, nearly three years from the date of decedent's death. It alleged that the decedent is survived by the plaintiff, his mother; by three minor children and their mother, his wife; and by two other minor children of the decedent's wife "with regard to whom decedent stood in loco parentis." It sought damages in the sum of $250,000.00 allegedly "under the Jones Act and also under the General Maritime Law and the Death on the High Seas Act, insofar as the latter are applicable."

By their motion to dismiss the defendants correctly pointed out: (1) that the General Maritime Law does not recognize an action for wrongful death;¹ (2) that any action under the Death on the High Seas Act is barred by the two-year statute of limitations.²

On appeal the plaintiff urges her claim solely as under the Jones Act, 46 U.S.C.A. § 688 et seq. Under that Act and the provisions of the Federal Employers' Liability Act,³ which it adopts by reference, the recovery for the death of an employee is for the benefit of the surviving widow and children of the employee, if any, to the exclusion of his parents or other beneficiaries. 45 U.S.C.A. § 51, § 59. Chicago B & Q R. Co. v. Wells-Dickey Trust Co., Administrator, 275 U.S. 161, 163, 48 S.Ct. 73, 72 L.Ed. 216; Wade, as Administratrix, v. Rogala, 3 Cir. 1959, 270 F.2d 280. If the plaintiff as administratrix is entitled to recovery under the Jones Act, her recovery would not be on behalf of the estate but solely as trustee for the designated survivors, that is, in this case the widow and minor children. Lindgren v. United States, 1930, 281 U.S. 38, 50 S.Ct. 207, 74 L.Ed. 686.

The motion for summary judgment set up that the widow individually and as tutrix of the children had settled and compromised all claims for wrongful death by authority of a court judgment and had given a full and complete release to the defendants. Attached to the motion as exhibits were copies of the petition of the widow, as the duly qualified natural tutrix of the minor children, to the 27th Judicial District Court for the Parish of St. Landry, Louisiana, seeking authority to make a full and complete settlement. The widow waived any claims on her own behalf and the settlement was made on behalf of the minor children for the total sum of $46,960.00, allocated to the respective minors. Also attached to the motion for summary judgment was a copy of the judgment of said court approving the settlement and providing that upon receipt of the amount specified "A. M. Landry & Son, Inc. and Travelers Insurance Company be and they are hereby discharged from any and all further liability, responsibility and claims whatsoever which may or might be made against them as a result of the accident and death of the said Owen James Sandoz under the Compensation Laws of the State of Louisiana, the general tort laws of the State of Louisiana, or any other law whatsoever." Attached also was a release by the widow in the form of an authentic act under the laws of Louisiana.

There was further attached as an exhibit to the motion for summary judgment a copy of proceedings had on the same day, June 1, 1959, before the same court, in which the plaintiff in the present action, the mother of the decedent and the administratrix of his estate, joined the widow in petitioning the court to approve settlement on behalf of the minors and by the administratrix against various parties, not including the defendants in the present case, for any matters arising out of the injury to and death of Owen J. Sandoz,...