Hutchinson v. Dickie, 10415.

• Decision Date: 05 June 1947
• Docket Number: No. 10415.,10415.
• Parties: HUTCHINSON v. DICKIE.
• Court: U.S. Court of Appeals — Sixth Circuit

162 F.2d 103 (1947)

HUTCHINSON v. DICKIE.

No. 10415.

Circuit Court of Appeals, Sixth Circuit.

June 5, 1947.

Robert Branand, and G. R. Johnson, both of Cleveland, Ohio (Robert Branand, and Gilbert R. Johnson, both of Cleveland, Ohio, on the brief; Johnson, Branand & Jaeger, of Cleveland, Ohio, of counsel), for appellant.

Silas B. Axtell, of New York City (Victor M. Todia, and Harry A. Gordon, both of Cleveland, Ohio, on the brief; Silas B. Axtell, of New York City, of counsel), for appellee.

Before HICKS, MARTIN and MILLER, Circuit Judges.

HICKS, Circuit Judge.

Appeal from a decree in admiralty, dismissing appellant's petition for exoneration from or limitation of liability, awarding damages against him in the sum of $30,000.00 for the wrongful death of appellee's decedent, one James S. Dickie.

On September 20, 1943, appellant, Gene C. Hutchinson, the owner of the pleasure cabin cruiser "Cappy", invited James S. Dickie, Clinton Barry and Arlington Smith to go with him in the Cappy on a pleasure cruise on Lake Erie. During the cruise Dickie was drowned.

On August 9, 1944, appellant Hutchinson filed a petition for exoneration from or limitation of his liability as owner. See Title 46 U.S.C.A. § 183. On October 9, 1944, Mrs. Dickie, decedent's widow and the executrix of his estate, filed a claim against appellant for damages for Dickie's death. The District Judge denied the claim for limitation of liability and under and by virtue of Hartford Accident Co. v. Southern Pacific Co., 273 U.S. 207, 47 S.Ct. 357, 71 L.Ed. 612, and Spencer Kellogg & Sons, Inc. v. Hicks, Adm'x., 285 U.S. 502, 512, 52 S.Ct. 450, 76 L.Ed. 903, rendered a decree in appellee's favor against appellant for damages in the sum of $30,000.00.

We think there was sufficient evidence to support the court's denial of appellant's claim for limitation of liability under the statute above cited and nothing more need be said upon that feature of the case. We pass to appellee's claim for damages.

Appellee's formal claim is that Dickie lost his life by drowning through the fault and negligence of appellant. The court rendered an oral opinion and filed Findings of Fact and Conclusions of Law. These findings are as follows:

"1. The petitioner, Gene C. Hutchinson, was, at all times material to the issues herein, sole owner and operator of the cruiser `Cappy'.

"2. On September 20, 1943, petitioner met decedent at Allendorf's restaurant in downtown Cleveland and invited him and two other men to join him on a cruise. They had a couple of drinks before lunch. From there they stopped at the Rudd Machine Company and picked up one Ed. Rhoda, who was employed part time by petitioner to relieve him at the wheel of the Cappy and handle the lines coming in and out of the harbor. They then proceeded to the Clifton Lagoons where the Cappy was docked. There was a delay of an hour and a half in getting started, during which time more drinks were consumed. About 4:30 P. M., the Cappy left the Lagoons, with petitioner at the controls, and proceeded to the Lakeside Yacht Club where they went inside and had more drinks, remaining there about 45 minutes to an hour.

"3. I find that all these places (except Rudd Machine Company) intoxicating liquor was consumed by petitioner, and his guests, including claimant's decedent, and that in all they undoubtedly had five or six of such drinks, all within a period of 4 to 5 hours.

"4. The Cappy left the Lakeside Yacht Club and proceeded out of the harbor entrance at Cleveland and into the open lake. There was a northeast wind and a sea running at the time, which gave the boat quite a roll. Decedent was sitting in the cockpit in the stern of the boat, and when the Cappy was out about half a mile, petitioner decided to head for the Clifton Lagoons. He turned west and shortly thereafter decedent disappeared over the Cappy's side.

"5. I find that when decedent went overboard, it was daylight; that he was seen by petitioner; that he was then only 75 feet away from the Cappy; that petitioner was negligent in failing to bring his cruiser about; and that he failed to make a reasonable effort to rescue decedent.

"6. I find that from the age of five years, petitioner has been required to wear a steel brace, weighing approximately 6 pounds, to support his body, due to an unfortunate physical affliction; that even when using said brace, petitioner experiences difficulty in getting about; that prior to the time decedent went overboard, petitioner had removed such brace, and that he was operating the controls of the Cappy without its support.

"7. I further find that petitioner was incapable of coordination on this particular occasion due to the excessive use of alcoholic stimulants coupled with his physical impairment.

"8. The only other seaman on board was Ed. Rhoda, an elderly man, who was hard of hearing, could not swim, and had no value as a member of the crew.

"9. I find that the cruiser Cappy was unseaworthy in that it was not fully manned on this particular voyage because of the inadequacy of petitioner and the said Rhoda to function as a competent crew.

"10. I further find that petitioner did not use due care in providing claimant's decedent with a seaworthy vessel on September 20, 1943.

"11. I further find that the petitioner had privity and knowledge of the unseaworthiness of the cruiser Cappy at the time claimant's decedent came to his death.

"12. I further find that claimant has sustained damages as a direct result of the negligence of the petitioner.

"13. I find that there was no contributory negligence on the part of claimant's decedent.

"Conclusions of Law

"1. I conclude that the petition for exoneration from or limitation of liability must be denied.

"2. I conclude that the petitioner must be held liable to the damage claimant for damages sustained by her, in the amount of Thirty Thousand Dollars ($30,000.00) and costs."

These findings were made in an effort to comply with Admiralty Rule 46½, 28 U.S.C.A. following section 723. The fact is, as stated in finding 4, "decedent disappeared over the Cappy's side." The court saw the witnesses and heard their testimony and this finding must prevail. Petterson Lighterage & Towing Corp. v. New York Central R. Co., 2 Cir., 126 F.2d 992. But there is no evidence that he was caused to disappear from the cruiser by any act of negligence or misconduct of appellant who was steering the cruiser at the time, or by any misconduct or negligence of one Rhoda, the sole member of the crew, or by any defect in the construction of the cruiser. The gravamen of appellee's claim is that after Dickie had fallen into the lake appellant failed to use that degree of care required of him by law to effect his rescue.

A few words here with reference to the court's findings of fact: If by finding 5 the court meant that appellant saw Dickie as he went overboard, there is no evidence to support it. Further, the finding that "petitioner" (appellant) "was negligent in failing to bring his cruiser about and that he failed to make a reasonable effort to rescue the decedent" is neither a special finding of fact nor a separate conclusion of law, but an inter-mixed finding of both law and fact.

Likewise, finding 12, "that claimant has sustained damages as a direct result of the negligence of petitioner" is obviously not one of fact.

Both these findings may however be treated as conclusions of law which we should review. Negligence is to be determined upon consideration of what duty, if any, appellant owed to Dickie in an effort to rescue him.

We take no stock in appellant's contention that he was under no legal obligation to rescue decedent. Dickie was an invited guest upon appellant's cruiser. When appellant heard the cry "Man Overboard" (an undisputed and relevant fact not referred to either in the findings or in the court's opinion) we think it was his duty to use reasonable care to rescue him. This was certainly a moral duty, universally recognized and acted upon. Dickie was drowning and appellant's cruiser was the only instrumentality by which he might be rescued.

In Carey v. Davis, 190 Iowa 720, 180 N. W. 889, 891, 12 A.L.R. 904, an Iowa case, the court in quoting from Adams v. Chicago G. W. R. Co., 156 Iowa 31, 135 N.W. 21, 42 L.R.A.,N.S., 373, said: "* * * whenever one person is by circumstances placed in such a position with regard to another that everyone of ordinary sense * * * would at once recognize that, if he did not use ordinary care and skill in his conduct with regard to those circumstances, he would cause danger of injury to the person or property of the other, a duty arises * * * to avoid such danger."

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