Roth v. McAllister Bros., Inc.
| Decision Date | 18 April 1963 |
| Docket Number | Docket 27983.,No. 289,289 |
| Citation | 316 F.2d 143 |
| Parties | Esther ROTH, as Administratrix of the Estate of Gustav Roth, deceased, Plaintiff-Appellee, v. McALLISTER BROS., INC., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Vincent A. Catoggio, of Purdy, Lamb & Catoggio, New York City, for defendant-appellant.
Morton J. Heckerling, of Standard, Weisberg & Harolds, New York City (Scheinberg, Wolf, Lapham & DePetris, Riverhead, N. Y., on the brief), for plaintiff-appellee.
Before LUMBARD, Chief Judge, and CLARK and MARSHALL, Circuit Judges.
Defendant appeals from a judgment awarding plaintiff, as administratrix of the estate of her husband, Gustav Roth, the sum of $6,000, plus interest, or a total of $7,980, due him for maintenance and cure. Roth himself originally brought the action as a seaman, claiming damages for a personal injury under the Jones Act, 46 U.S.C. § 688, and, in a separate count, an award for maintenance and cure. Roth died, and the action was amended to continue in the name of his wife as administratrix. The claims under the Jones Act were tried to a jury which disagreed, and they have not yet been retried. The court reserved to itself decision upon the count for maintenance and cure and made the award here appealed from; it included in its judgment the finding under F.R. 54(b) that there was no just reason for delay in entering final judgment upon this issue, thus making it appealable at once. This appeal followed.
Defendant, in its claim of error, attacks Judge Palmieri's ruling that it was estopped from denying that it was Roth's employer when he sustained the injuries in question. McAllister Bros., Inc., defendant-appellant, is a tugboat operator which maintains a close interrelationship with Tug and Barge Supply Co., Inc., a shipyard operator that services, apparently exclusively, McAllister's boats. Roth was a marine engineer who seems to have done work for both concerns without a careful distinction ever being made as to which was his employer at any given time.
The basis upon which the district court held McAllister estopped was the position taken by it at a hearing before the New Jersey Department of Labor and Industry, Division of Workmen's Compensation, where plaintiff had presented a claim. The Compensation Court, on motion of the defendant and of Tug and Barge Supply Co., Inc. (both companies being represented by the same attorney), dismissed the claim for lack of jurisdiction. It found that at the time of Roth's injury he was a crew member on a vessel...
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Harney v. William M. Moore Building Corporation
...of a state proceeding or an award, Harney was not shown to be estopped from claiming seaman status. Compare Roth v. McAllister Bros., Inc., 316 F.2d 143 (2 Cir.1963).3 More relevant for this case are those cases holding that filing a claim or accepting voluntary benefits does not prevent a ......
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Winters v. Lavine
...433 F.2d 665, 668-69 (2d Cir. 1970) (no reference by court to requirement of "full and fair opportunity"); Roth v. McAllister Bros., Inc., 316 F.2d 143, 145 (2d Cir. 1963) (same); United States v. Grinnell Corp., 307 F.Supp. 1097, 1097-98 (S.D.N.Y.1969) (same)), the New York courts have app......
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Long Island Lighting Co. v. Transamerica Delaval
...(including administrative proceedings) from assuming a contrary position in a subsequent proceeding. See Roth v. McAllister Bros., Inc., 316 F.2d 143, 145 (2d Cir.1963); Ronson Corp. v. Liquifin Aktiengesellschaft, Liquigas, S.p.A., 375 F.Supp. 628, 630 5 We express no opinion at this time ......
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Sperling v. U.S.
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