Kulack v. The Pearl Jack

• Decision Date: 09 December 1949
• Docket Number: No. 10872.,10872.
• Citation: 178 F.2d 154
• Parties: KULACK et al. v. THE PEARL JACK et al.
• Court: U.S. Court of Appeals — Sixth Circuit

178 F.2d 154 (1949)

KULACK et al. v. THE PEARL JACK et al.

No. 10872.

United States Court of Appeals. Sixth Circuit.

December 9, 1949.

C. A. Mitts, Grand Rapids, Mich., Leo W. Hoffman, Allegan, Mich., Mitts & Smith, Grand Rapids, Mich., Leo W. Hoffman, Allegan, Mich., on the brief, for appellants.

Fred T. Miles, Holland, Mich., Miles & Miles, Holland, Mich., on the brief, for appellee John T. Barron, Sr.

Before HICKS, Chief Judge, and SIMONS and McALLISTER, Circuit Judges.

SIMONS, Circuit Judge.

The cases of Kulack and Ciohon were begun as libels in the district court and Klaric sued in the Allegan County Circuit Court from which her case was removed to the district court because of diversity. Since all three relied upon the same allegations of negligence against the same respondents the cases were consolidated for trial by stipulation and decided by a single decree.

The appellants were passengers for hire on the vessel Pearl Jack, operating on the Kalamazoo River at Saugatuck, Michigan, on July 30, 1945, when they were injured by an explosion and fire on the boat. The libels were against the boat and all three appellants charged the individual defendants with negligence in its operation on the ground that they were partners or joint adventurers in the enterprise upon which the boat was engaged. A petition for limitation of liability by Dennison was overruled, judgment went against Dennison and John T. Barron, Jr., and the libels and complaint were dismissed against Barron, Sr. This appeal is solely from the judgment of no cause of action in favor of Barron, Sr.

No question arises as to the existence of a partnership between Dennison and Barron, Jr., in the operation of the Pearl Jack and other boats out of Saugatuck, nor as to the liability of the partnership for the injuries suffered by the appellants. The court, however, upon specific findings of fact, concluded that Barron, Sr., was neither a partner with his son and Dennison nor a joint adventurer with them or either of them in the enterprise. We consider the case as it was considered below and in the briefs here, as solely one in admiralty. So considered it is deemed upon appeal as a trial de novo. Brooklyn Eastern District Terminal v. U. S., 287 U. S. 170, 176, 53 S.Ct. 103, 77 L.Ed. 240, and cases therein cited. It is the rule, however, in this and other circuits, that while an appeal in admiralty is a trial de novo, the findings of the district court will be accepted unless clearly against the preponderance of evidence. The William A. Paine, 6 Cir., 39 F.2d 586; The Perseus, 6 Cir., 272 F. 633; Drowne v. Great Lakes Transit Corporation, 2 Cir., 5 F.2d 58; Shepard v. Reed, 6 Cir., 26 F.2d 19.

There was much detailed evidence as to the activity of all three appellees in relation to the ownership and operation of boats, their purchase and sale and the financial transactions incident thereto, both prior to and subsequent to the accident upon which the libels and complaint were based. It will serve no useful purpose to recite all of these details. It is sufficient to say that the boat activity was carried on informally and the partnership accounts were likewise so conducted. Barron, Sr., had no title to the Pearl Jack nor to...