Kelly v. Smith

• Citation: 485 F.2d 520
• Decision Date: 19 November 1973
• Docket Number: No. 72-3285.,72-3285.
• Parties: Garland Wayne KELLY and Allen Eugene Kelly, Sr., Plaintiffs-Appellees, v. J. C. SMITH and Chicot Land Company, Inc., et al., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

485 F.2d 520 (1973)

Garland Wayne KELLY and Allen Eugene Kelly, Sr., Plaintiffs-Appellees, v. J. C. SMITH and Chicot Land Company, Inc., et al., Defendants-Appellants.

No. 72-3285.

United States Court of Appeals, Fifth Circuit.

August 28, 1973.

Rehearing Denied November 19, 1973.

O. C. Burnside, Jr., Lake Village, Ark., for J. C. Smith.

Roy D. Campbell, Jr., James L. Robertson, Lawrence D. Wade, Greenville, Miss., for Chicot Land Co.

Philip E. Henderson, Robert L. Morris, Houma, La., for Allen Kelly and Garland Kelly.

M. E. Ward, R. E. Parker, Jr., Vicksburg, Miss., J. Albert Lake, Greenville, Miss., for Anderson-Tully.

Before TUTTLE, GODBOLD and MORGAN, Circuit Judges.

Rehearing and Rehearing En Banc Denied November 19, 1973.

GODBOLD, Circuit Judge:

This case arises from a mini ship-to-shore gun battle in the Mississippi River. The vessel, no ship of the line, is a 15-foot outboard boat. The combatants are irregular forces, fleeing deer poachers afloat and outraged defenders of a private hunting preserve ashore. The armament, rather than coastal batteries and carronades on the gun deck, consists of hunting rifles. The forces encountered one another as the result of actual, though unintended, aerial reconnaissance. The engagement commenced with solid shot — from a rifle — fired from shore across the bow of the boat to signal it to stop. It continued on course. The gunners ashore lowered their elevation and fired into the water beside the boat. The boat continued in flight at full speed ahead, and the next rounds were fired into the boat, holing the boat and wounding the man at the tiller, who was the senior man on board, and another. The force afloat, having suffered these serious casualties, dispatched a few rounds shoreward, broke off the engagement and retired from the scene in disarray. The land detachment won the battle but lost the lawsuit. We affirm.

The central issue is whether the tort claims of plaintiffs, casualties aboard the boat, are within admiralty jurisdiction. In addition, defendants-appellants contend that the court erred in failing to sustain their plea of laches to this 5½ year old cause of action and in finding Chicot Land Company vicariously liable for the actions of defendants Smith and Bledsoe.

On November 27, 1965 Allen Eugene Kelly, Sr. and his three sons, all residents of Mississippi, slipped across the Mississippi River to Woodstock Island in their 15-foot boat for a day of clandestine deer hunting. The island is located on the west side of the main channel. It is covered with timber and well stocked with wild game, especially deer. It was owned by Anderson-Tully Co., which had granted to Chicot Land Company, an Arkansas land management corporation, a license for exclusive hunting rights on the island. In return for the license Chicot paid a fee, maintained roads and fire lanes on the island, employed the caretaker, and assumed general responsibility for the well being of the island. Woodstock Hunting Club, the hunting rights licensee prior to Chicot, was an association formed to enjoy hunting on the island and to communally share the expenses of the license and hunting. Chicot succeeded to the hunting club's license because the club was unable to pay the annual rental regularly or to perform the necessary maintenance and construction on the island. After Chicot took over the license the club members continued to enjoy the hunting rights, and the club reimbursed Chicot for its expenses as the club members paid their dues. Defendant J. C. Smith, a resident of Arkansas, had been the caretaker of the island for its various owners since the 1930's. He was also the prime mover in organizing and running the hunting club.¹ At the time of the incident Smith was employed by Chicot to maintain its heavy construction equipment, and to serve as caretaker for the island.²

During the afternoon of November 27, 1965, Defendants Smith and Bledsoe were at the clubhouse on the island. Another club member flying a light airplane evidently sighted the Kellys' boat and dropped a note to Smith and Bledsoe informing them of the suspected poachers on the island. The Kellys, suspecting discovery, took to their boat in an attempt to flee. Simultaneously, Smith and Bledsoe rushed to where the note indicated the boat was docked. At that point the parties' stories diverge. The exchange of gunfire ensued. Smith and Bledsoe claimed that they signaled and yelled at the Kellys to return to the island in order to establish their identity and that the Kellys responded by shooting at them. The Kellys contended that Smith and Bledsoe fired first. The District Court found that Smith and Bledsoe initiated the firing, first across the bow of the vessel to indicate that it should stop, then into the water next to the boat. The Kellys continued at full speed to try to get out of range, and Kelly, Sr., indicated he would not return to the bank. The two men on shore then fired into the boat, striking Kelly, Sr., and Garland Wayne Kelly. One of the Kelly sons then fired his rifle at Smith and Bledsoe.

In early 1971 Kelly, Sr., and his injured son, Garland Wayne Kelly, filed suits for their injuries in federal district court against Smith, Bledsoe, Chicot, Anderson-Tully, and the members of the Woodstock Hunting Club, alleging diversity of citizenship and admiralty jurisdiction.³ The District Court dismissed the Club on a motion for summary judgment.⁴ After a nonjury trial the court concluded that despite the Kellys' status as trespassers, Chicot, Smith, and Bledsoe were jointly and severally liable to Kelly, Sr., for $69,772.40 and to Garland Wayne Kelly for $2,593.96. It found that Chicot was vicariously liable for Smith's actions under respondeat superior and for Bledsoe's actions because Bledsoe was acting under the instructions and at the request of Smith to protect and defend Chicot's valuable hunting rights on the island. Anderson-Tully was absolved of liability because Smith and Bledsoe were not acting in its behalf. Integral to the District Court's decision were its conclusions that the cause of action was one in admiralty and that the Kellys were not barred by laches. Those are the issues on appeal, plus the issue of Chicot's vicarious liability. Defendants do not contest, under the clearly erroneous rule, the District Court's finding that Smith and Bledsoe were the aggressors, nor the conclusions that Smith and Bledsoe committed the intentional tort of assault and battery and that the force used in protecting Chicot's exclusive hunting rights was excessive.

a. Admiralty tort jurisdiction

The issue of jurisdiction is crucial. If jurisdiction was sustainable only on diversity grounds the Kellys' Erie-bound claim was barred by the Mississippi one-year statute of limitations for assault and battery cases. Miss.Code Ann. § 732.⁵

Historically the standard for determination of maritime tort jurisdiction was viewed as a question of the locality of the tort. Maritime law governed only those actions where the "substance and the consummation of the injury" took place on navigable waters. The Plymouth, 70 U.S. (3 Wall.) 20, 33, 18 L.Ed. 125, 127 (1886). The strict locality standard was perfunctorily repeated with such frequency⁶ that most courts seemingly lost track of the failure of the Supreme Court to explicitly decide whether maritime tort jurisdiction turned solely on maritime locality. In Atlantic Transport Co. v. Imbrovek, 234 U.S. 52, 34 S.Ct. 733, 58 L.Ed. 1208 (1914), a case involving injuries sustained by a stevedore on board a vessel while loading copper, the Court upheld federal admiralty jurisdiction but explicitly found it unnecessary to consider whether maritime locality alone was sufficient. The Court did not address the question directly again until 1972.⁷ In Executive Jet Aviation v. Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972), plaintiff's plane lost power from ingesting seagulls into its engines while taking off from defendant's airport and came to rest and sank off the end of the runway in Lake Erie. Plaintiff sued in admiralty, alleging that defendant negligently failed to keep its runway free of seagulls or to warn of their presence. The Court of Appeals found that the tort occurred on land, therefore the case was not cognizable in admiralty. Executive Jet Aviation, Inc. v. City of Cleveland, 448 F.2d 151, 154 (CA6, 1971). But the Supreme Court faced the broader question of whether maritime locality alone is sufficient to create admiralty tort jurisdiction.

In the factual context of Executive Jet the Court declared:

. . . the mere fact that the alleged wrong "occurs" or "is located" on or over navigable waters — whatever that means in an aviation context — is not of itself sufficient to turn an airplane negligence case into a "maritime tort." It is far more consistent with the history and purpose of admiralty to require also that the wrong bear a significant relationship to traditional maritime activity. . . .

409 U.S. at 268, 93 S.Ct. at 504, 34 L. Ed.2d at 467.

In reaching its decision about airplane negligence cases the Court pointed out that

. . . there has existed over the years a judicial, legislative, and scholarly recognition that, in determining whether there is admiralty jurisdiction over a particular tort or class of torts, reliance on the relationship of the wrong to traditional maritime activity is often more consonant with the purposes of maritime law than is a purely mechanical application of the locality test.

Id. at 249, 93 S.Ct. at 501, 34 L.Ed.2d at 463.

Foreshadowing the Supreme Court's analysis and conclusion in Executive Jet, this court recognized the inadequacies of the strict locality test in Watz v. Zapata Off-Shore Co., 431 F.2d 100, 109-111 (CA5, 1970). And in Peytavin v. Government Employees Ins. Co., 453 F.2d 1121 (CA5, 1972), we concluded that the facts and circumstances of each claim must have a substantial connection with maritime...