McPherson v. Steamship South African Pioneer, 8305.

• Decision Date: 11 January 1971
• Docket Number: No. 8305.,8305.
• Citation: 321 F. Supp. 42
• Court: U.S. District Court — Eastern District of Virginia
• Parties: P. J. McPHERSON, Administrator of the Estate of Gordon Chester McPherson, deceased, Libelant, and Ann McPherson, also known as Margie W. McPherson, Intervenor, v. STEAMSHIP SOUTH AFRICAN PIONEER, her engines, etc., in rem, and South African Marine Corporation, Ltd., in personam, and James S. Darling, Jr. et al., individually and trading as J. S. Darling & Son, and Severn L. Robbins et al., all being former owners and operators of the FISHING TRAWLER POWHATAN, in personam, Respondents.

321 F. Supp. 42

P. J. McPHERSON, Administrator of the Estate of Gordon Chester McPherson, deceased, Libelant and Ann McPherson, also known as Margie W. McPherson, Intervenor, v. STEAMSHIP SOUTH AFRICAN PIONEER, her engines, etc., in rem, and South African Marine Corporation, Ltd., in personam and James S. Darling, Jr. et al., individually and trading as J. S. Darling & Son, and Severn L. Robbins et al., all being former owners and operators of the FISHING TRAWLER POWHATAN, in personam, Respondents.

No. 8305.

United States District Court, E. D. Virginia, Norfolk Division.

January 11, 1971.

Roy L. Sykes, Jr., Norfolk, Va., for libelant.

Steingold & Steingold, Norfolk, Va., and Paul S. Edelman, New York City, for intervenor.

Braden Vandeventer for James S. Darling and others.

Francis N. Crenshaw, Norfolk, Va., for South African Marine Corp., respondents.

MEMORANDUM

WALTER E. HOFFMAN, Chief Judge.

By an amended libel it is alleged that during the early morning hours of April 10, 1961¹ a collision occurred between the SOUTH AFRICAN PIONEER and the fishing trawler POWHATAN, as a result of which the POWHATAN was cut in two and sank. Only the master of the POWHATAN survived. The entire crew, including Gordon Chester McPherson (referred to herein as Chet), was apparently drowned. The collision took place approximately thirty-five (35) miles southeast of Cape May, New Jersey, under visibility conditions which were apparently restricted by reason of rain, rough seas, and heavy swells. It was undeniably a collision on the high seas.

Chet McPherson, as indicated above, was employed by the owners and operators of the POWHATAN. The action against these particular respondents is under the Jones Act, 46 U.S.C., section 688, which incorporates by reference the Federal Employers' Liability Act, 45 U. S.C., section 51, et seq. As to these respondents the libel also alleges a cause of action under the General Maritime Law, the Virginia Death by Wrongful Act statute, the New York Death by Wrongful Act statute, and the New Jersey Death by Wrongful Act statute.

The owners and operators of the SOUTH AFRICAN PIONEER are sued on the basis of the Death on the High Seas Act, 46 U.S.C., section 761, and the same allegations are made as to these particular respondents with respect to a cause of action under the General Maritime Law and the various state wrongful death statutes mentioned in the preceding paragraph. Additionally, the libel claims relief, as to the owners and operators of the SOUTH AFRICAN PIONEER, under the laws, statutes, and treaties of South Africa, as the SOUTH AFRICAN PIONEER flew the flag of South Africa and the South African Marine Corporation, Ltd., was organized and existed under the laws of South Africa.

The two causes of action stated in the libel allege negligence on the part of the owners and operators of both vessels, including a claim for the wrongful death and a claim for conscious pain and suffering prior to death.

After the action was instituted it developed that Chet had gone through a marriage ceremony with one Margie W. Marshall at Dillon, South Carolina, on November 14, 1959, about eighteen (18) months prior to his death. Margie W. Marshall had lived with Chet from the date of this marriage ceremony until his death, save and except a brief interlude of several weeks shortly prior to his death. However, at the time of death, they had rented an apartment in Hampton, Virginia. At all times following the marriage ceremony on November 14, 1959, they held themselves out to be husband and wife. Margie went by the name of "Ann" and we shall refer to her as such, although her legal name as of the date of Chet's death was Margie W. Marshall Dunlow. At all times Chet and Ann were permanent residents of and domiciled in the City of Hampton, Virginia. Their purported marriage in Dillon, South Carolina, was a one-day affair and, following the ceremony, the couple went to Fort Bragg, North Carolina, on their first night, and returned to Hampton, Virginia, on the following day. They remained in Hampton thereafter.

The original libel was filed for the benefit of "dependent relatives who have suffered pecuniary loss by reason of his death." After receiving information that Ann was asserting a claim as Chet's widow, the amended libel alleged that Chet "left surviving him next of kin and dependents, including but not limited to, his widow if any, his children if any, and his mother, father, brothers and sisters, all of whom have suffered pecuniary loss by reason of his death." By an appropriate order Ann was granted leave to intervene.

The respondents have filed a motion to dismiss directed to Ann's claim. They stated, in effect, that the mother and father of the decedent are the only parties eligible to receive any benefits by reason of any settlement or litigation.

Hearings were conducted as to Ann's status and her right to recovery. The facts are as hereinafter stated and the motion to dismiss will be treated as a motion for summary judgment and/or a pretrial hearing on the right of Ann to participate in any recovery.

Chet and Ann first met and started keeping company in the spring of 1959. At that time Ann was married to, but separated from, Dutie M. Dunlow whom she had married on October 10, 1952. No divorce or legal separation proceedings were then pending.² On September 30, 1959, Chet and Ann went to the office of John W. Maddy, an attorney in Hampton, Virginia, for the purpose of arranging a divorce for Ann. The attorney, after obtaining the basic information, accepted a cash payment retainer fee of $75.00 (apparently paid by Chet, although the receipt is made out to "Margie Dunlow") giving his receipt for same which indicated that a balance of $100.00 was still due. According to Ann, the attorney said that he would start the divorce "right away" and that the balance of $100.00 could be paid "as I could." She also stated that, prior to going to South Carolina for the purpose of entering into a marital contract with Chet, she telephoned the attorney who purportedly told her "to go ahead and get married, that everything was all right." Acting upon this alleged advice, Ann assumed that she was legally divorced from Dunlow. At no time prior to November 14, 1959, had the attorney requested that she sign any papers and she admitted that she had not testified by deposition or otherwise in her divorce case.

The attorney, Maddy, while admitting that Chet and Ann had conferred with him on September 30, 1959, in contemplation of Ann's filing a divorce action against Dunlow, denies emphatically that he ever told Ann that she could marry Chet. In fact, Maddy testified that Chet and Ann gave the separation date with Dunlow as being March 16, 1959, and, realizing that any divorce on desertion and abandonment could not be obtained until the passage of one year, Maddy discussed a payment schedule of the balance of $100.00 on his fee and costs, same providing for payments of $25.00 each on November 1, January 1, February 1, and the final payment in March when the absolute divorce could be obtained. Maddy stated that the parties discussed a payment in December and it was decided to forego same as money would be scarce during the Christmas month.

According to Maddy, he drew the complaint and notice to take depositions in late December 1959, or early January 1960. He had fixed the date for taking depositions on February 17, 1960. He claims to have called Ann where she worked at the Woodland Drive-In and asked her to pay the arrearage in payments due and come to his office the following day to sign the bill of complaint. Ann never appeared and the divorce action was never filed.

To the extent that it may be pertinent, we accept Maddy's denial that he ever told Ann that she was free to marry. A compelling factor in this decision is that Ann still owed Maddy the sum of $100.00 and, knowing the attorney involved, it is fundamental that he would never tell Ann that she could marry Chet with the knowledge that the $100.00 would not then be paid. Irrespective of the troubles of any attorney, we know that an attorney would never give such advice when he had full knowledge of the fact that the divorce action, which he had been retained to file, had never even been instituted. We hold, therefore, that Ann, at the time she went through the marriage ceremony with Chet, was not acting innocently in the belief that she had a legal right to marry Chet.

We likewise find that Chet was equally aware of the fact that Ann's divorce had not been obtained at the time they took their trip to Dillon, South Carolina, to go through a marriage ceremony. The actual application for a South Carolina marriage certificate was not produced in evidence although the marriage certificate reflects that an application was filed with the Probate Court for Dillon County on November 13, 1959, at 2:00 p. m.³—a fact which, if it occurred, would suggest that Ann, Chet and Chet's brother were in Dillon, South Carolina, the day prior to the marriage, although Ann testified that she and Chet drove to Fort Bragg where Chet's brother thereafter drove them to Dillon with all three returning to Fort Bragg that same night. As further evidence that Chet was aware of the difficulties of contracting a marriage in Virginia, Ann testified that it was Chet's idea to go to South Carolina and that "He told me how you could get married down there." Immediately thereafter Ann modified the foregoing statement by saying, "He just wanted to go down there and wanted his brother to go to his wedding," even though he had approximately six brothers in the area of Hampton, Virginia.

We deem it unnecessary to resolve the apparent conflict in testimony as to Ann's purported conversations with Elsie L. McPherson, the wife of one of Chet's brothers. Elsie testified that, on one occasion, she accompanied Ann and Chet to Elizabeth City, North Carolina, where Ann and Chet were to...