Sanders v. Richmond

• Decision Date: 13 March 1979
• Docket Number: No. 39019,39019
• Citation: 579 S.W.2d 401
• Parties: Esther SANDERS, Plaintiff-Appellant, v. Robert J. RICHMOND, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 401

579 S.W.2d 401

1980 A.M.C. 240

Esther SANDERS, Plaintiff-Appellant, v. Robert J. RICHMOND, Defendant-Respondent.

No. 39019.

Missouri Court of Appeals, Eastern District, Division Three.

March 13, 1979.

David O. Danis, Whalen, O'Connor, Danis & Tobben, St. Louis, for plaintiff-appellant.

Donald L. James, Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, Lawrence B. Grebel, Michael R. Noakes, St. Louis, for defendant-respondent.

KELLY, Judge.

This appeal presents the question whether a widow's claim for the death of her husband caused by injuries sustained when two motor boats collided on the Mississippi River is barred by the decedent's contributory negligence. We hold that it is not, reverse the judgment entered in the trial court for the defendant, and remand the cause for a new trial.

Charles L. Sanders, the decedent, was, on July 12, 1975, the owner of a 16 foot long john-boat which was powered by a 20 horsepower motor mounted on the stern of the john-boat. The john-boat was not equipped with running lights as required by law.

Sometime between the hours of 10:00 p. m. and 11:00 p. m. on that date, decedent and his brother-in-law, Edward A. Dillon, got under way from a boat dock on the Missouri bank of the Mississippi River near an area known as Lake Shore for the purpose of checking some trot lines on Two Branch Island. Decedent, who was seated on a swivel-type chair on the thwart just forward of the stern, and who was operating the outboard motor from that position, was wearing a camouflage jacket. He also had a lighted reflector lamp attached to his head. Mr. Dillon was seated on a thwart somewhat forward of the decedent and facing aft. He was wearing a reddish-orange life jacket.

Two Branch Island is located approximately in the middle of the river at this point and almost directly northward across the river from whence decedent and his brother-in-law took departure. To reach the island it was necessary for decedent to proceed across the main channel of the Mississippi River which at this point runs in an approximately east-west direction.

The weather was clear and the waters calm.

As the john-boat with decedent and Mr. Dillon in it was proceeding northwardly across the Mississippi River heading for Two Branch Island at a speed of approximately 12 to 15 miles per hour, Mr. Dillon, who was looking at decedent's clubhouse astern, which was situated near the dock they had left, heard a thump and was knocked unconscious. At no time prior to feeling the thump did he see any approaching lights or hear the sound of an engine. He was uncertain from what direction the john-boat he was in was collided with by the other vessel. When he regained consciousness Mr. Dillon observed the decedent lying in the stern of the john-boat, apparently unconscious.

According to Mr. Dillon, when decedent left the dock and got underway to go to Two Branch Island, the light he had on his head, which "looked like a miner's light," was turned on and shed some illumination. On cross-examination he admitted that he did not know whether this light on decedent's head was still on when the collision occurred, and that even if it were, it would have been directed where decedent was looking at any given time.

Robert J. Richmond, the respondent, was operating a 19 foot Sidewinder run-about, powered by a 455 jet engine, proceeding upstream at an estimated speed of 18 to 20 miles per hour enroute from a restaurant where he and a lady passenger had dined. The run-about was equipped with the running lights required by law for motor boats of this class. The dashboard lights on the craft were turned off. He was traveling in the main channel of the river, and was looking dead ahead. At the speed he was traveling the boat he was operating planed; and at the time of the collision the boat was planing and this was the basis of his estimate of the speed of his motorboat when the collision occurred. According to the evidence, this boat was owned by Julia Richmond, respondent's mother.

The passenger in the boat being operated by respondent was seated on the port side of said boat, across from the respondent as he steered the boat from the starboard side. She was facing him but she was not turned from side to side, she was more or less looking out across the water.

Immediately prior to the collision, the respondent saw a shadow to his left; but he saw no lights. He never saw the decedent or the john-boat until after the collision. His passenger's first notice of the collision was the bump, which caused her to be "bumped up into the air."

The points of collision, as evidenced by photographs of damage to the two craft were the bow of the runabout at the water-line, and the starboard side of the john-boat just forward of the thwart on which decedent was sitting as he was operating the outboard motor on the john-boat.

The jury returned a verdict for the respondent and the trial court entered judgment accordingly. The appellant's timely motion for new trial was overruled and this appeal followed.

On appeal five points are relied on as grounds for reversing the judgment of the trial court and the remanding of the cause for a new trial. Each is directed to whether the respondent was entitled to submit the contributory negligence of the decedent to the jury as a bar to his widow's claim for wrongful death. As we have said hereinabove, we hold that contributory negligence was not a complete bar to appellant's claim and the trial court erred in submitting the contributory negligence of the decedent to defeat his widow's claim.

The injuries from which the decedent came to his death were incurred as the result of a collision between two motorboats on the Mississippi River. The Mississippi River at the point where the collision occurred, approximately one-half the distance between the Missouri bank of the river and Two Branch Island, and between miles 230 and 229, is a navigable stream and motorboats operated thereon at this location are subject to the rules of navigation applicable to the Mississippi River and its tributaries, the Atchafalaya River and the Red River of the North. 33 U.S.C. § 301 (1970). The Federal Boat Safety Act of 1971, 46 U.S.C. § 1459, with one exception, preempts any state law or regulation which establishes "any boat or associated equipment performance or other safety standard, or which imposes any requirement for associated equipment" except where state boating safety programs are directed at implementing and supplementing the Act. (The exception has no application to the issues in this case.)

Appellant contends that her claim is one brought under the law of admiralty and that her late husband's contributory negligence does not bar recovery because under Federal Maritime Law contributory negligence of her decedent may be considered only in mitigation of damages as justice requires.

Respondent, on the other hand, contends that the appellant did not plead the non-statutory federal maritime wrongful death cause of action established in Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970) which would have been cognizable in federal court on its admiralty side, but, that she brought her action in a state court under the Missouri Wrongful Death Statute, § 537.080 RSMo.1969, and therefore her husband's contributory negligence is a complete bar to her claim. Sec. 537.085 RSMo.1969. We conclude, and we also believe respondent concluded, that the appellant pled the federal maritime cause of action for wrongful death recognized by the Supreme Court of the United States when it decided Moragne v. States Marine Lines, Inc., Supra.

To fully understand the reason for this conclusion it is essential that we review the pleadings in this cause in chronological order as they appear in the transcript on appeal. Appellant filed her petition for damages on the 13th day of August, 1975. In this petition she joined Julia Richmond, as the owner of the runabout, and Robert J. Richmond, as its operator. The petition as it appears in the record is as follows:

"PETITION

Comes now plaintiff and for her petition against defendants, states as follows:

1. Plaintiff and defendants are residents of St. Charles County, Missouri.

2. On and prior to July 12, 1975, Charles L. Sanders was plaintiff's lawful husband, and plaintiff brings this action as the surviving spouse of said Charles L. Sanders, deceased, as provided by Section 537.070 and 537.090, R.S.Mo.1959, (sic) as amended.

3. Defendant Julia Richmond was the owner of a 1973 Sidewinder boat # 29VJ113 and defendant Robert J. Richmond was the operator of said boat on July 12, 1975, at the time of the collision herein referred to.

4. Charles L. Sanders met his death on July 12, 1975, as the direct result of the negligence and carelessness of defendants in the following respects to-wit:

(a) Defendants operated said boat in a careless and wreckless (sic) manner.

(b) Defendants operated said boat at an excessive speed too fast for the conditions as they existed.

(c) Defendants failed to keep a lookout while operating said boat.

(d) Defendants failed to warn of their approach.

(e) Defendants failed to properly light their boat after dark.

All of the aforementioned acts of carelessness and negligence resulted in defendants' boat colliding with the person of Charles L. Sanders and causing wounds to the said Charles L. Sanders from which he expired on July 12, 1975.

5. Said collision occurred on the Mississippi River, a navigable stream in the State of Missouri.

6. The plaintiff was dependant (sic) upon her said husband for her support.

7. As a direct and proximate result of the foregoing negligence and carelessness of defendants, plaintiff has been deprived of the support, aid, society, companionship and consortium of her aforesaid husband and has been caused to incur the necessary burial expense in the approximate sum of Two Thousand and...