Magnolia Towing Company v. Pace
Decision Date | 16 May 1967 |
Docket Number | No. 23708.,23708. |
Citation | 378 F.2d 12 |
Parties | MAGNOLIA TOWING COMPANY, Appellant, v. Charles Robert PACE, Jr., Appellee. |
Court | U.S. Court of Appeals — Fifth Circuit |
Frank E. Everett, Jr., William G. Beanland, Vicksburg, Miss., Brunini, Everett, Grantham & Quin, Vicksburg, Miss., of counsel, for appellant.
Charles W. Franklin, Baton Rouge, La., M. E. Ward, Vicksburg, Miss., Emmett E. Batson, Baton Rouge, La., Franklin & Keogh, Baton Rouge, La., Dent, Ward, Martin & Terry, Vicksburg, Miss., of counsel, for appellee.
Before RIVES, COLEMAN and GODBOLD, Circuit Judges.
In an action for injury to a seaman under the Jones Act,1 the jury returned a general verdict for the plaintiff, accompanied by answers to interrogatories which included the following:
This appeal is from the judgment entered upon that verdict. Three questions are presented for the decision of this Court:
We find under the undisputed evidence that the plaintiff was a "Seaman" at the time of the accident and hence that it is not necessary to answer the other questions. We therefore affirm.
The testimony of only three witnesses relates to plaintiff's status as a "seaman" at the time of the accident, viz.: M. L. King, Vice President and General Manager of the defendant; Lincoln Johnson, the driver of the automobile at the time of the accident; and the plaintiff himself. There is no substantial conflict in their testimony. Pace went to work as a pilot for the defendant in March 1962. The only kind of work that he had ever performed for the defendant was that of pilot of a tugboat on the Mississippi River. He was paid a straight monthly salary of $750.00, though his schedule called for him to be off duty two days for every three days he was on board. On the night of April 18, 1963, Pace was at his home in Baton Rouge, Louisiana, off duty. At about 9:00 P.M., King called Pace by long distance telephone and ordered him to come to Vicksburg, Mississippi, the next day. The evidence strongly supports the jury's finding that Pace was to board the "Vicksburg" tugboat as pilot. The only other possibility was that he was to be pilot of the "Hill City," another of defendant's tugboats which was making up the tow for the "Vicksburg." Pace traveled by bus from Baton Rouge to Natchez. King sent Lincoln Johnson, a maritime employee of defendant, in an automobile owned by defendant to pick up Pace at Natchez and transport him to Vicksburg. En route to Vicksburg an accident occurred in which Pace was seriously injured.
We think that the law has developed to the point where it would have been proper for the district court to charge the jury as a matter of law that Pace was a "seaman" at the time of his injury.4 He was permanently assigned as a pilot to one or another of the defendant's tugboats, and any uncertainty as to which one is not material.5 He clearly meets all of the tests of a "seaman" as fully developed in ...
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...asserting that Hamilton v. Marine Carriers Corp, 332 F Supp 223 (ED Pa, 1971) is the only decision to the contrary. In Magnolia Towing Co v. Pace, 378 F2d 12 (CA 5, 1967), the Court held that a tugboat operator injured in an automobile driven by the ship owner's employee en route to the wor......
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