McLaughlin v. Blidberg Rothchild Company
| Decision Date | 24 June 1958 |
| Citation | 163 F. Supp. 33 |
| Parties | Reva McLAUGHLIN, individually and as Administratrix of the Estate of Clarence R. McLaughlin, deceased, and Diane Sherry McLaughlin, an infant by Reva McLaughlin, her Guardian ad Litem, Plaintiffs, v. BLIDBERG ROTHCHILD COMPANY, Inc., and States Marine Corporation of Delaware, Defendants. Reva McLAUGHLIN, Administratrix of the Estate of Clarence R. McLaughlin, Deceased, Libelant, v. THE S.S. NORTHPORT, her boilers, engines, tackle, etc., and Blidberg Rothchild Company, Inc., Respondents. and States Marine Corporation of Delaware, Impleaded-Respondent. |
| Court | U.S. District Court — Southern District of New York |
Marvin Schwartz, New York City, for plaintiffs, James P. O'Connell, New York City, of counsel.
Dougherty, Ryan & Mahoney, New York City, for defendant, Blidberg Rothchild Co., Inc. Thomas J. Short, New York City, of counsel.
FREDERICK van PELT BRYAN, District Judge.
A suit in admiralty and a civil action at law, both for the alleged wrongful death of a seaman, have been consolidated for trial pursuant to Rule 42(a), F.R. C.P., 28 U.S.C.A. The opinion directing consolidation (McLaughlin v. Blidberg Rothchild Co., D.C.S.D.N.Y., 156 F.Supp. 379, Id., D.C., 156 F.Supp. 381) fully state the facts and it is unnecessary to detail them here.
The present motion concerns only the causes of action asserted against respondent and defendant Blidberg Rothchild. Blidberg now moves to strike a jury demand made by plaintiff in the action at law which was brought subsequent to the commencement of the admiralty suit, and to place the consolidated causes on the non-jury trial calendar. The motion is grounded upon the premise that plaintiff waived her right to a jury trial and elected under the Jones Act to proceed without a jury by failing to serve a jury demand or to move to transfer the cause to the law side and for a trial by jury within ten days after the service of the last pleading in the admiralty suit, the time limited by Rule 38, F.R.C.P.
Plaintiff's suit in admiralty against the S.S. Northport and respondent Blidberg was commenced on November 2, 1956. The libel contains four causes of action. The first is for the death of libelant's intestate allegedly caused by the negligence of respondent and its failure to provide decedent with a safe place to work, based upon the Jones Act, 46 U.S.C.A. § 688, which is specifically referred to. The second, also seeking recovery for wrongful death, is based upon unseaworthiness and is alleged to be brought "under the General Maritime Law and the Death on the High Seas Act", 46 U.S.C.A. § 761 et seq. The third and fourth causes of action are for pain and suffering between the time of the injury and the time of the death, the third predicated upon negligence and the fourth upon unseaworthiness.
Respondent Blidberg served its answer to the libel on December 18, 1956 and this was the last pleading in the admiralty suit. No demand for a jury trial or motion to transfer the cause to the civil side and for a jury trial has ever been made in this suit.
On July 19, 1957, more than six months after the service of the answer to the libel, plaintiff brought the civil action and demanded a trial by jury in her complaint. The causes of action against Blidberg in the civil action are substantially the same as those in the admiralty suit. The first cause of action is for wrongful death under the Jones Act. The second seeks recovery for wrongful death based upon unseaworthiness. The third combines the last two causes of action alleged in the admiralty suit in a single cause of action for pain and suffering between the time of injury and the death based on both negligence and unseaworthiness.
After the complaint in the civil action had been served Blidberg moved for an order dismissing that action upon the ground that the prior suit in admiralty was pending for the same recovery, that plaintiff was precluded from bringing the action at law since she had elected under the Jones Act to proceed in admiralty without a jury, and that the action at law was vexatious. The same motion was made by defendant States Marine Corporation which was an impleaded respondent in the admiralty suit and against whom in the action at law plaintiff first asserted causes of action predicated on a Japanese Wrongful Death Statute. Both motions were denied by Judge Levet who ordered the admiralty suit and the action at law consolidated for purposes of trial. McLaughlin v. Blidberg Rothchild Co., supra.
Upon that motion defendant Blidberg contended that the plaintiff by first bringing the admiralty suit and failing to demand a jury trial or move for transfer to the civil side within ten days after issue was joined under Rule 38, F.R.C.P. had made a final election under the Jones Act (46 U.S.C.A. § 688) to proceed in admiralty without a jury. Blidberg urged that plaintiff was therefore precluded from bringing a civil action triable before a jury. Judge Levet held that the motion to dismiss should be denied upon the authority of McAfoos v. Canadian Pacific Steamships, Ltd., 2 Cir., 243 F.2d 270, and instead consolidated the admiralty suit and the action at law for purposes of trial.
However, Judge Levet specifically stated that no determination was intended "as to whether plaintiffs are entitled to a jury trial against defendant Blidberg in the second action." 156 F.Supp. at page 384. It is this question which is now before me for determination.
The admiralty suit and the action at law, both now consolidated and pending in ...
To continue reading
Request your trial
-
Patterson v. Maher
...showing. Ligouri v. New York, New Haven and Hartford Railroad Company, D.Conn., 26 F.R.D. 565, 566-568; McLaughlin v. Blidberg Rothchild Company, S.D.N.Y., 163 F.Supp. 33, 36. Although they have received criticism for their failure to grant relief, such criticism is rooted in the fact that ......