Rowe v. Brooks

Decision Date16 March 1964
Docket NumberNo. 9206.,9206.
Citation329 F.2d 35
PartiesJohn H. ROWE, Jr., individually and as Administrator of the Estate of Larry Mitchell Rowe, deceased, Jerry Rowe, and Lloyd G. Rowe, Appellants and Cross-Appellees, and Appellees, v. Miles S. BROOKS and Frank Carr, trading as Williamsburg Sporting Goods and Hobby Shop, Appellees and Cross-Appellants, and Dallas Eugene Hodge, an infant, and William E. Hodge, individually and trading as Powhatan Marina, Appellants.
CourtU.S. Court of Appeals — Fourth Circuit

Sidney H. Kelsey, Norfolk, Va., for appellants and cross-appellees, and appellees.

Guilford D. Ware, Norfolk, Va., for Frank Carr.

David Nelson Sutton, West Point, Va., for Miles S. Brooks (Walkley E. Johnson, Jr., Baird, Crenshaw & Ware, Norfolk, Va., and Sutton & Causey, West Point, Va., on brief), for appellees and cross appellants.

Leonard B. Sachs and H. Lee Kanter, Norfolk, Va. (Kanter, Kanter & Sachs, Norfolk, Va., on brief), for appellants.

Before SOBELOFF, Chief Judge. BRYAN, Circuit Judge, and BARKSDALE, District Judge.

BARKSDALE, District Judge.

John H. Rowe, Jr., Administrator of the estate of Larry M. Rowe, deceased, and in his own right, Jerry Rowe, an infant who sued through his father and next friend, John H. Rowe, Jr., and Lloyd G. Rowe, filed their libel in admiralty against Dallas E. Hodge, an infant, William E. Hodge, individually and trading as Powhatan Marina, Miles S. Brooks and Frank Carr, trading as Williamsburg Sporting Goods and Hobby Shop, and Ellen C. Burkhardt (now Mrs. Charles G. Rosson), and Charles G. Rosson, alleging damages for personal injuries and death as the result of a collision of two motorboats, in one of which the Rowes were passengers, on July 3, 1960, in the waters of Powhatan Creek which empties into the James River near Williamsburg, Virginia. The libel alleged that the Rowes were passengers in a sixteen-foot Glaspar fiberglass boat operated by Dallas Hodge, fourteen years of age at the time, and that the Glaspar boat was owned by Brooks and Carr, trading as Williamsburg Sporting Goods and Hobby Shop, who had placed it at the Powhatan Marina for demonstration and sale in furtherance of the interests of Brooks, Carr and Hodge, unrestricted use and operation of the boat at the Marina being allowed by Brooks and Carr. The libel further stated that Mrs. Burkhardt, now Rosson, was the operator of the other boat involved in the collision, which was owned by her now husband, Rosson, who was in the boat with her at the time of the collision. It was further alleged that the death of Larry Rowe, a child of seven years, the serious injury to Jerry Rowe, eleven years of age, and the serious injuries to Lloyd Rowe, were caused solely by the joint and several negligence and wrongdoing of the owners and operators of the two motorboats.

The libel was brought pursuant to the General Admiralty Law of the United States and as applying the Virginia Death by Wrongful Act Statute in the case of the deceased child Larry Rowe. The Rossons filed their answer to the libel, denying liability, as did William and Dallas Hodge. Brooks and Carr did not answer the libel, but filed their petition for exoneration from, or limitation of, liability under 46 U.S.C.A. § 183. The Rowes filed their claims in the limitations proceedings, as well as answers and exceptions. The District Court consolidated for trial the exoneration from or limitation of liability proceedings with the suit for personal injuries and death, heard the evidence ore tenus, made findings of fact and conclusions of law, and rendered separate judgments in favor of the Rowes, against Dallas E. Hodge, William E. Hodge, Mr. and Mrs. Charles G. Rosson, Brooks, and Carr, aggregating $93,250.00, refused to exonerate Brooks and Carr, owners of the Glaspar motorboat, but granted them limitation of their liability to $600.00, the stipulated value of their wrecked motorboat.

The Rowes have prosecuted this appeal solely from the action of the District Court in limiting the liability of Brooks and Carr. Mr. and Mrs. Charles G. Rosson have not appealed. Brooks, Carr, William E. Hodge, and Dallas Hodge, have appealed from the rendition of judgments against them.

The evidence and admissions establish that Brooks and Carr, trading as the Williamsburg Sporting Goods and Hobby Shop, owned, and had for sale, the Glaspar fiberglass motorboat, two and one-half inches less than sixteen feet long, equipped with a seventy-five horsepower outboard motor. Brooks and Carr, pursuant to an oral agreement with William E. Hodge, owner of the Powhatan Marina, placed this boat at the Marina about two weeks prior to the accident, for demonstration and sale. It was understood between them that Hodge was to use the boat as if it were his own, and there was no limitation on its use. Brooks and Carr knew that Dallas Hodge would operate their Glaspar boat. In fact, Brooks saw him operating the Glaspar boat the afternoon before the accident. It was agreed that Hodge would receive a commission on the sale of this boat, as well as on other equipment placed by them at his Marina, and Brooks and Carr would profit also. Brooks and Carr could have removed the Glaspar boat at any time. Neither Mr. Hodge, nor his son Dallas Hodge, then fourteen years of age, had a license to operate a motorboat. However, Dallas Hodge had been operating motorboats similar to the Glaspar boat for about three years prior to the accident, and other boats when even younger. John Rowe kept his own boat at the Powhatan Marina, and, with his brother Lloyd, was interested in buying the Glaspar boat, which interest he had on previous occasions expressed to Mr. Hodge. On July 3, 1960, between 6:00 and 6:30 o'clock, P.M., John Rowe, who was at the Marina with his brother Lloyd and other members of his family, being interested in a demonstration of the boat and having the channel marked for him, requested William Hodge to take him out in the boat to mark the channel of the river. William Hodge directed his son Dallas to take the Rowes out in the Glaspar boat, and accordingly Dallas took Lloyd Rowe, John Rowe, Larry Rowe and Jerry Rowe aboard the Glaspar boat. John Rowe sat in front with Hodge, and the other three sat in the back seat. The purpose of the trip was to mark the channel of the creek for John Rowe and to demonstrate the boat in the hope of selling it to him. It was the intention of John Rowe to make up his mind that very day after the demonstration whether to buy the boat or not. Before the accident he inquired of Dallas Hodge about the price and performance of the boat.

About the same time, an unnamed, unmarked plyboard motorboat was coming up Powhatan Creek toward the Marina. Mrs. C. G. Rosson (then Mrs. Burkhardt), was operating that boat with the owner Charles G. Rosson aboard. Powhatan Creek flows on a winding course into the James River about a mile from the Marina. The creek varies in width from 100 to 200 feet. At the place of collision it was between 100 and 125 feet wide, and the channel was about 90 feet in width, with a depth of 4 to 6 feet at high tide. The accident occurred approximately one-fourth of a mile from the Marina in the direction of James River in a straight stretch of the creek between two bends. The area was marshy with trees and high swamp grass on both sides of the creek which interfered with visibility around the bends.

Dallas Hodge left the Marina, heading toward the James. After traveling a distance of 100 feet from the Marina, he accelerated to a speed of from 15 to 20 miles an hour. At this speed the boat planed. He reduced throttle in order to navigate the bends but increased throttle on the straightaways. Dallas reduced throttle in rounding the fourth bend, which was to him a left hand bend. While he was coming around this bend, he noticed the Rosson boat rounding the next bend about 400 feet away, heading in his direction on his side of the creek. When Dallas completed the bend, he increased throttle even though the Rosson boat continued on his side of the creek heading directly toward him. His speed at this time was between 15 and 20 miles per hour and the boat was planing. He moved further to his right, but the Rosson boat also moved to its left, continuing to head toward the Hodge boat. Dallas moved to within five feet of the right bank, but did not decrease his speed. He did not believe he was in danger until the two boats were about 50 to 75 feet apart. At that point Dallas turned diagonally to his left without giving any signal. At the same time Mrs. Rosson turned to her right without giving any signal. The Rosson boat struck the right side and sliced into the Hodge boat at a 45-degree angle at a point just behind the front seat of the Hodge boat. The Rosson boat then slid back and struck the three occupants in the back seat, Larry Mitchell Rowe, Jerry Rowe and Lloyd G. Rowe. The collision occurred in midstream approximately equidistant between the two bends. Mrs. Rosson had operated the Rosson boat for more than a year, but on the day in question, while not intoxicated, she had been drinking alcoholic beverages.

As the direct result of the collision, Larry Mitchell Rowe, seven years of age, was killed, and Lloyd G. Rowe and Jerry Rowe sustained serious and permanent injuries. No exception has been taken by any party to the amount of damages awarded to the libellants.

Upon the facts found, the District Court concluded that Dallas Hodge was negligent in running at a high speed notwithstanding that another boat was heading directly toward his boat and that a collision was impending, and that such negligence was a proximate cause of the accident. Since Dallas Hodge was an employee of his father, and acting within the scope of his employment at the time of the collision, the District Court concluded that William Hodge was also liable. The District Court also concluded that Mrs. Rosson was negligent in...

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