Miller v. Farrell Lines
| Decision Date | 16 August 1957 |
| Docket Number | Docket 24066.,No. 367,367 |
| Citation | 247 F.2d 503 |
| Parties | Mildred L. MILLER, individually and as Administratrix of the goods, chattels and credits of James W. Miller, deceased, Plaintiff-Appellant, v. FARRELL LINES, Incorporated, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Herbert J. Kaplow, New York City, for plaintiff-appellant.
Stapleton, Flynn & Lilly, New York City (Daniel Flynn and George W. Sullivan, New York City, of counsel), for defendant-appellee.
Before MEDINA, LUMBARD and WATERMAN, Circuit Judges.
This is an action brought under the Jones Act, 46 U.S.C.A. § 688, to recover for the alleged wrongful death of James W. Miller, the plaintiff's husband. The complaint alleged that Miller was caused to be "washed overboard" because defendant was "negligent in failing to maintain a proper and adequate guard and watch over" Miller The defendant moved for a directed verdict both at the end of plaintiff's case and after the entire case. Judge Palmieri reserved decision in both instances and submitted the case to the jury. After the jury returned a verdict of $55,000 for the plaintiff, Judge Palmieri granted the defendant's motion to set aside the verdict and directed judgment for the defendant. From this decision the plaintiff appeals.
On November 10, 1950, a week following graduation from the United States Maritime Service School as a qualified assistant electrician, Miller signed articles on the S. S. African Glade, a C-2 type freighter, owned and operated by the Farrell Lines, for his first and last voyage as an assistant electrician. The ship sailed the evening of the same day for Dakar, West Africa. Miller shared a cabin in the forecastle with Chief Electrician Levy, his immediate superior. He had not previously shipped aboard this vessel and apparently knew no other members of her crew. Miller had been at sea for 22 years as he went to sea at the age of 14, and during his service in the British Merchant Marine he attained the rank of Master of British Ships.
About 6:00 P. M. on November 14 the Chief Electrician returned to his quarters and found Miller there reading, and about 6:30 P. M. Levy left him alone in the cabin. Around 11:30 P. M. Chief Steward Leopold Aiken saw Miller pacing the afterdeck and noticed nothing unusual about him except that he appeared deep in thought. This was the last time Miller was seen aboard the vessel. As may be expected in such a case there is no evidence as to the time, manner or place of his departure from the ship. The case was tried on the theory that Miller jumped overboard intending to commit suicide.
The next morning, November 15, Chief Electrician Levy got up about 7:30 A. M. He noticed that Miller's bunk had not been occupied that night but did not think it strange since Miller had not occupied his bunk the night before. When Miller did not show up at the 10:00 A. M. coffee break, Levy, after inquiring of his whereabouts from other members of the crew, reported him missing to the master, Captain Wilder.
Captain Wilder thereupon called all department heads and had a search of the vessel made for the decedent. Miller was not found and at 10:20 A. M. the African Glade turned back 180 degrees into her own wake on the course which it had just sailed.
Captain Feinne, plaintiff's maritime expert, testified that from his examination of the log book of the African Glade he concluded that the course she took after making this turn was not reciprocal, but was a parallel course, twelve or thirteen miles south of a reciprocal course. Captain Wilder, though admitting he did not have a navigational fix taken, testified that he turned the bow of the African Glade back into her own wake thus pursuing the reciprocal course.
During the search Captain Wilder sent a radio telephone message concerning the disappearance to his home office and one to the U. S. Coast Guard Weather Ship. Captain Wilder did not radio any of the other ships in the vicinity, admittedly the correct procedure, for the Coast Guard was in touch with all such ships.
When darkness fell at 5:16 P. M. the search was called off; the African Glade was then approximately 70 miles from the place where she had been when Miller had last been seen alive at 11:30 P. M. the night before. The ship then headed again toward Dakar.
In reserving his decision on the defendant's motion for a directed verdict, Judge Palmieri made it quite clear that it was his opinion that there was a complete lack of proof on the question of causation, but he let the case go to the jury to avoid the trouble and expense of a new trial should he later be held in error. In his charge to the jury, Judge Palmieri defined negligence and proximate cause and the jury was instructed that they could not find for the plaintiff for failure to make proper rescue efforts unless they first concluded that Miller was alive at 10:20 A. M. on the morning of November 15, 1950.
With the consent of counsel (subject of course to the defendant's motions for a directed verdict) Judge Palmieri then submitted special interrogatories to the jury which returned the answers as noted:
Immediately after the verdict, Judge Palmieri granted the defendant's motion for a directed verdict on the ground that there was no proper basis for the establishment of any causal relationship between the alleged negligent search and Miller's death. We agree.
In a suit under the Jones Act, it is necessary to show that the allegedly negligent act or omission of the defendant caused, in whole or in part, the...
To continue reading
Request your trial
-
Gardner v. National Bulk Carriers, Inc.
...Johnson v. United States, 74 F.2d 703 (2d Cir. 1935); Kirincich v. Standard Dredging Co., 112 F.2d 163 (3d Cir. 1940); Miller v. Farrell Lines, 247 F.2d 503 (2d Cir. 1957); Smith v. Reinauer Oil Transport, 256 F.2d 646 (1st Cir. 1958); Barrios v. Waterman S.S. Corp., 290 F.2d 310 (5th Cir. ......
-
Kiesel v. American Trading and Production Corporation, Civ. No. 21002-M.
...Sealanes, Inc., 443 F.2d 1324 (4th Cir. 1971); Smith v. Reinauer Oil Transport, 256 F. 2d 646 (1st Cir. 1958); Miller v. Farrell Lines, 247 F.2d 503 (2d Cir. 1957), this court cannot find as a fact that there was any connection between the flaked lines along the starboard passageway and the......
-
Gardner v. National Bulk Carriers, Inc.
...2 Cir., 194 F.2d 194; Petition of Trans-Pacific Fishing & Packing Co. (The Western Clipper), D.C.Wash., 152 F.Supp. 44; Miller v. Farrell Lines, 2 Cir., 247 F.2d 503, certiorari denied 355 U.S. 912, 78 S.Ct. 342, 2 L.Ed.2d 273. The latter case, decided under the Jones Act subsequent to the ......
-
Swords v. American Sealanes, Inc.
...contributed to the plaintiff's injury. On the same theory, a directed verdict for the defendant was affirmed in Miller v. Farrell Lines, Inc., 247 F.2d 503, 506 (2 Cir. 1957), where suit had been brought to recover damages under the Jones Act for the loss of decedent overboard. The Court fo......