Mosseller v. United States

• Decision Date: 27 November 1946
• Docket Number: Docket 20245.,No. 22,22
• Citation: Mosseller v. United States, 158 F.2d 380 (2nd Cir. 1946)
• Parties: MOSSELLER v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

158 F.2d 380 (1946)

MOSSELLER v.UNITED STATES.

No. 22, Docket 20245.

Circuit Court of Appeals, Second Circuit.

Decided November 27, 1946.

James B. Magnor, of New York City(John F. X. McGohey, U. S. Atty., Kirlin, Campbell, Hickox & Keating, Charles N. Fiddler, and Vernon S. Jones, all of New York City, on the brief), for appellant.

Simone N. Gazan, of New York City, for appellee.

Before AUGUSTUS N. HAND, CHASE, and CLARK, Circuit Judges.

CLARK, Circuit Judge.

The important question on this appeal is whether the district court had jurisdiction to authorize the taking of a deposition to perpetuate testimony for use in an action to be thereafter commenced in the admiralty seeking damages for personal injuries from the United States of America.A further question as to the appealability of the order granting the authorization has already been decided against the appellee on her preliminary motion to dismiss the appeal, but she has renewed her contention at the argument on the merits.

Petitioner's son, a minor, was severely injured while on duty as a seaman aboard a vessel owned by the United States, allegedly because of the negligence of a fellow seaman.Petitioner intended to institute suit for personal injuries on behalf of her son against the United States under the Suits in Admiralty Act, 46 U.S.C.A. §§ 741-752, as extended by Public Law 17, Act of March 24, 1943, c. 26, 57 Stat. 45, 50 U.S.C.A.Appendix, § 1291.But under the latter Act and regulations issued pursuant to it, she was prevented from bringing suit until she had filed a claim against the United States and until either the claim had been administratively disallowed or sixty days had elapsed from the date of its filing.As shown by affidavits, medical opinion indicated that her son might die before the time elapsed.If he died before his suit could be brought, petitioner could nevertheless bring suit for the loss of his support and for his pain and suffering.Her case would naturally be weakened by the loss of his testimony.She therefore petitioned for an order authorizing the taking of his deposition, and the United States appeared specially to object and now appeals from the granting of the petition.

Bills for depositions to perpetuate testimony were well known in Roman law and in English chancery practice before the adoption of the United States Constitution.Mason v. Goodburne, Rep.Temp.Finch, 391, 23 Eng.Rep. 214, Ch. 1678;Story, Equity Pleading, 2d Ed., §§ 299-306.The principles of this English chancery practice were written by Congress into the Act of 1789, 1 Stat. 90, now embodied in 28 U.S.C.A. § 644.Green v. Compagnia Generale Italiana Di Navigation, D.C.S.D.N.Y., 82 F. 490, 494, 495, affirmed2 Cir., 102 F. 650.And the Supreme Court has declared its own jurisdiction to authorize the taking of such depositions in aid of original proceedings to be brought before it.Arizona v. California, 292 U.S. 341, 347, 54 S.Ct. 735, 78 L.Ed. 1298.The statute provides broadly that "any district court, upon application to it as a court of equity, may, according to the usages of chancery, direct depositions to be taken in perpetuam rei memoriam, if they relate to any matters that may be cognizable in any court of the United States."With a statute so extensive it seems clear that, contrary to the argument upon the part of the United States, the equity proceeding thus authorized may be utilized to perpetuate testimony for use in an admiralty libel; and this was so held by Judge Addison Brown in Green v. Compagnia Generale Italiana Di Navigation, supra, D.C.S.D.N.Y., 82 F. 490.This case was cited with approval in Arizona v. California, supra;and see alsoThe West Ira, D.C.E.D.La., 24 F.2d 858, reversed for errors in procedure only sub nom., Todd Engineering, Dry Dock & Repair Co. v. United States, 5 Cir., 32 F.2d 734;3 Benedict on Admiralty, 6th Ed., § 401, p. 103.Moreover, the entire statute(covering also depositions under dedimus potestatem) has been resorted to in matters of admiralty, The Osceola, D.C.S.D.N.Y., Fed. Cas. No. 10,602;The Westminster, D.C.E.D.Pa., 96 F. 766;The Alexandra, D.C.S.C., 104 F. 904;The Samuel, 1 Wheat. 9, 14 U.S. 9, 4 L.Ed. 23, bankruptcy, 2 Collier on Bankruptcy, 14th Ed., 325, 326, and (by the majority view) criminal-law jurisdiction, Federal Rules Criminal Procedure, Rule 15(a),18 U.S.C.A.followingsection 687, and Committee Note;Wong Yim v. United States, 9 Cir., 118 F.2d 667, certiorari denied313 U.S. 589, 61 S.Ct. 1112, 85 L.Ed. 1544;United States v. Dunn, D.C.S.D.N.Y., 55 F.Supp. 535;cf.Luxenberg v. United States, 4 Cir., 45 F.2d 497, certiorari denied283 U.S. 820, 51 S.Ct. 345, 75 L.Ed. 1436.It would be an unwarranted narrowing of its broad scope to deny its applicability to testimony of the kind here involved.

The present practice is now found in Federal Rules Civil Procedure, Rule 27,28 U.S.C.A.followingsection 723c, which, as the Advisory Committee's note points out, both preserves the remedy by separate action and also provides a simple method of procedure by petition in the district court of the United States in the district of the residence of any expected adverse party.That it rests upon the same chancery basis as does the statutory right is shown by its applicability to testimony "regarding any matter that may be cognizable in any court of the United States."Federal Rules Civil Procedure, Rule 27(a)(1).And since the rules apply to proceedings formerly cognizable in equity, Federal Rules Civil Procedure, Rule 1, respondent's contention that this is a proceeding in admiralty to which the rules do not extend is not well taken.The rule is important here, because it does afford a simple ancillary or auxiliary remedy to which the usual federal jurisdictional and venue requirements do not apply.See complete discussion in 2 Moore's Federal Practice 2506-2508.The proceeding lends itself naturally to such treatment, since its purpose is not the determination of substantive rights, but merely the providing of aid for the eventual adjudication of such rights in a suit later to be begun.The petition at bar therefore properly conformed to the procedural requirements of the rule.Under Federal Rules Civil Procedure, Rule 27(a)(3), the court may grant an order to take the deposition if it is satisfied that a failure or a delay of justice may thereby be prevented.What circumstances show a possible failure or delay of justice sufficient to call for the issuance of an order is obviously a matter for the sound discretion of the district court.The court here was satisfied with the showing of an unfavorable medical prognosis for the injured seaman, and we do not find any abuse of discretion there.Indeed, the court might have issued the order without such a medical showing, for "the right to this relief, therefore, does not depend upon the condition of the witness, but upon the situation of the partypetitioner, and his power to bring his rights to an immediate investigation."Hall v. Stout, 4 Del.Ch. 269, 274, quoted inWestinghouse Mach. Co. v. Electric Storage Battery Co., 3 Cir., 170 F. 430, 433, 25 L.R.A.,N.S., 673, and in 2 Moore's Federal Practice 2519, 2520.

The ancillary character of the proceeding answers the contention of the United States that its consent is required before a petition under Federal Rules Civil Procedure, Rule 27, may be...