Presley v. Upper Mississippi Towing Corp.

• Decision Date: 13 November 1961
• Docket Number: No. 5436,5436
• Citation: 141 So.2d 411
• Parties: Mrs. Corine PRESLEY, Administratrix of the Succession of Barney W. Presley, Jr., v. UPPER MISSISSIPPI TOWING CORPORATION.
• Court: Court of Appeal of Louisiana — District of US

Page 411

141 So.2d 411

Mrs. Corine PRESLEY, Administratrix of the Succession of Barney W. Presley, Jr., v. UPPER MISSISSIPPI TOWING CORPORATION.

No. 5436.

Court of Appeal of Louisiana, First Circuit.

Nov. 13, 1961.

Rehearing Denied Dec. 18, 1961.

On Second Rehearing May 16, 1962.

Certiorari Denied June 20, 1962.

Breazeale, Sachse & Wilson, Maurice J. Wilson, Boris F. Navratil, Baton Rouge, for defendant-appellee and appellant.

Laycock & Stewart, Ashton Stewart, Baton Rouge, Lancaster & Baxter, Talluhan, for plaintiff-appellant and appellee.

Before LOTTINGER, LANDRY and REID, JJ.

LANDRY, Judge.

This is a suit under the Jones Act (46 U.S.C.A. § 688) by the mother of an unmarried man seeking to recover damages in the sum of $100,000 for the death of her seaman son drowned in the Mississippi River during the course of his employment on the tugboat 'Harriet Ann', owned by defendant, Upper Mississippi Towing Corporation.

Trial of this cause before a jury in the Honorable Nineteenth Judicial District Court, East Baton Rouge Parish, resulted in a verdict and judgment predicated thereon in favor of plaintiff and against defendant in the sum of $12,000, from which verdict plaintiff has appealed alleging reversible error on the part of the trial court in (1) refusing to give certain specific charges requested by appellant, and (2) the giving of certain allegedly improper and inadequate charges to the jury, all of which is said to have been prejudicial to plaintiff's interest. Learned counsel for defendant suspensively appealed the adverse judgment but does not complain that defendant was improperly cast or that the award of damages in the sum of $12,000 is excessive. On the contrary, in his brief before this court, defendant-appellant takes the position that the jury verdict and judgment thereon is correct and should be affirmed, the appeal herein taken by defendant having been entered solely for the purpose of preventing execution of plaintiff's judgment pending plaintiff's appeal which is and can be devolutive only.

The evidence in the case at bar shows that at the time of his death (and for a considerable period prior thereto) Barney W. Presley, Jr. (who was 27 years old and unmarried) was employed by defendant aboard the tug 'Harriet Ann' at a take-home pay of approximately $350 per month. His alternate bi-weekly checks of $174 and $172, respectively, were sent by decedent to plaintiff, decedent's widowed mother, who endorsed and cashed them, employing approximately $250 from the proceeds thereof each month to defraying the expenses of operating a home, title to which was in decedent and in which plaintiff resided with four of her other children, namely, Franklin Wayne, age 17, Harvey Neal, age 15, Charlie Warren, age 8, and Vera Ellen, age 6, decedent's brothers and sister, respectively, all of whom were attending school. Decedent worked aboard the tug 'Harriet Ann' 30 days on and 20 days off which off periods he spent in the home occupied by his mother, brothers and sister. In addition to providing the home, decedent also owned a truck and a cow which plaintiff and other members of the family were permitted to use and enjoy during decedent's absence from home.

With the approximately $250 of decedent's income which plaintiff used each month, she paid grocery bills amounting to approximately $150, the remainder of said $250 being spent for clothing and necessities for her children but virtually none of which she used for herself. She frankly conceded her needs were simple and few and were met out of welfare payments which she received. She purchased no clothing with money given her by decedent, her requirements in this regard being fulfilled by a daughter in military service who sent plaintiff clothing from time to time. The remaining $100 per month of decedent's income, plaintiff kept for said decedent. It is clear, therefore, that decedent was maintaining his mother, plaintiff herein, and decedent's younger brothers and sister in decedent's own home and that they all jointly and collectively enjoyed the benefits of decedent's extraordinary generosity.

We believe a clearer understanding of the specific issues involved herein will be had by our setting forth at this juncture certain well established rules and principles which both plaintiff and defendant concede to be applicable to cases arising under the Jones Act.

Federal judicial authority and power extends to 'all cases of admiralty and maritime Jurisdiction'. Art. 3, § 2, U.S.Constitution. When the Congress of the United States enacted the Jones Act it became paramount and exclusive in its operation and the question of the proper amount of damages in a suit by either an injured seaman or the beneficiary of a deceased seaman under the Jones Act must be determined according to principles of law as enunciated by the Federal Court in Chesapeake & O.R. Co. v. Kelly, 241 U.S. 485, 36 S.Ct. 630, 60 L.Ed. 1117. In such instances, a state statute or a decision of a state court limiting the amount of recovery is not controlling. Chicago, R.I. & P.R. Co. v. Devine, 239 U.S. 52, 36 S.Ct. 27, 60 L.Ed. 140. See also Annotations 96 L.Ed. 408, et seq.

A seaman (or in the event of his death, his beneficiary) is entitled to the full benefit of applicable Federal law when a state court undertakes adjudication of his claim or claims arising under maritime law. McAllister v. Magnolia Pet. Co., 357 U.S. 221, 78 S.Ct. 1201, 2 L.Ed.2d 1272. The right to jury trial of claims under the Jones Act is expressly granted a litigant as evidenced by the following appearing in 46 U.S.C.A., § 688:

'* * * in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. * * *'

The 'railway employees statute' referred to in the hereinabove cited portion of 46 U.S.C.A. § 688 is the Federal Employers' Liability Act commonly known and referred to as 'FELA', a pertinent portion of which Federal Employers' Liability Act is contained in 45 U.S.C.A. § 51 which provides as follows:

'Every common carrier by railroad while engaging in commerce between any of the several States * * * shall be liable in damages to any person suffering injury while he is employed * * *, or in case of the death of such employee, to his * * * personal representative, for the benefit of * * * such employee's parents * * * for such * * * death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier * * *.'

Concurrent jurisdiction in cases arising under the Jones Act is conferred upon the courts of the several states under the authority of 45 U.S.C.A. § 56.

The rule obtaining in this state in accordance with Article 7, § 29 of the Louisiana Constitution of 1921, LSA, is that the Appellate Courts of Louisiana may hear appeals on both facts and law and may reverse a lower court on a finding of fact when such factual determination is deemed erroneous. Such rule, however, does not apply to a claim under the Jones Act tried in the courts of this State. In Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493, in reversing the decision of the Supreme Court of Missouri which set aside an award in a FELA case on the ground that plaintiff's proof did not establish defendant's liability, the Supreme Court of the United States held that under the circumstances the judicial right of review of facts is restricted to the single inquiry of whether, within reason, the evidence adduced supports the conclusion that the negligence of the employer played any part at all in the injury or death of the employee. In cases under the Jones Act appellate courts can and should reverse the judgment of a trial court in the event of erroneous rulings by the lower tribunal on questions of law such as erroneous instruction to the jury regarding the rules and law applicable in such cases unless it affirmatively appears from the record as a whole that such errors were harmless. Fillipon v. Albion Vein Slate Co., 250 U.S. 76, 39 S.Ct. 435, 63 L.Ed. 853, and United States v. River Rouge Imp. Co., 269 U.S. 411, 46 S.Ct. 144, 70 L.Ed. 339; Majestic v. Louisville & N.R. Co., 6 Cir., 147 F.2d 621.

The measure of quantum adopted and established by the Federal courts in cases arising under the Jones Act (which criteria is binding upon state courts hearing such cases) has on numerous occasions been stated and made clear. In Michigan Cent. R. Co. v. Vreeland, 227 U.S. 59, 33 S.Ct. 192, 195, 57 L.Ed. 417, the United States Supreme Court declared:

'* * * essentially identical with the first act which ever provided for a cause of action arising out of the death of a human being * * *, known as Lord Campbell's act.

'The distinguishing features of that act are identical with * * * (FELA): First, it is grounded upon the original wrongful injury of the person; second, it is for the exclusive benefit of certain specified relatives; third, the damages are such as flow from the deprivation of the pecuniary benefits which the beneficiaries might have reasonably received if the deceased had not died from his injuries.

'The pecuniary loss is not dependent upon any legal liability of the injured person to the beneficiary. * * * There must, however, appear some reasonable expectation of pecuniary assistance or support of which they have been deprived. Compensation for such loss manifestly does not include damages by way of recompense for grief or wounded feelings. * * *

'The word 'pecuniary' did not appear in Lord Campbell's act, nor does it appear in our act * * *. But the former act and all those which follow it have been continuously interpreted as providing only for compensation for pecuniary loss or...