Semon v. Royal Indemnity Company, Civ. A. No. 7395.
Decision Date | 23 December 1959 |
Docket Number | Civ. A. No. 7395. |
Citation | 179 F. Supp. 403 |
Parties | Mary Hicks SEMON, Gloria Semon Sheerer, and the Minor, Carolyn Semon Jones, through her Tutor, The Commercial National Bank in Shreveport, v. ROYAL INDEMNITY COMPANY. |
Court | U.S. District Court — Western District of Louisiana |
Harry V. Booth, Booth, Lockard, Jack, Pleasant & LeSage, Shreveport, La., for plaintiffs.
Richard H. Switzer, Lunn, Irion, Switzer, Trichel & Johnson, Shreveport, La., for defendant.
This is a suit for certain benefits claimed to be due under a policy of accident insurance issued by defendant on August 9, 1939, to Lewin N. Semon, late of Shreveport, Louisiana.
The principal sum of the policy was in the amount of $20,000, payable upon the occurrence of the insured's death through accidental means. The policy further provided that "Any amount payable under * * * this Policy shall be doubled if such injuries are sustained by the Insured (1) while a passenger in or upon a public conveyance provided by a common carrier for passenger service * * *".
On May 30, 1958, Semon accidentally drowned when he fell from the motorboat Sportsman into the waters of Mississippi Sound at a point approximately 400 yards north-northeast of Beacon B, Pass Aux Heron, Alabama. His widow and children, as his heirs, plaintiffs here, made claim under the policy for the principal sum of $20,000, which defendant paid, and for an additional $20,000 under the "Double Indemnity" proviso above quoted, for which defendant declined liability on the ground that the Sportsman was not a "common carrier".
Thereafter, suit was filed by plaintiffs in the State Court, claiming twice the amount of the double indemnity sum, plus an attorney's fee of $7,500, or a total of $47,500, under the provisions of LSA-R.S. 22:657. Defendant timely removed the case here, on grounds of diverse citizenship, and then filed a motion for summary judgment, supported by the affidavit of Captain Earl Bryant, owner and master of the Sportsman. The facts related in the affidavit are not disputed by plaintiffs, and, coincidentally, were already well known to the Court, who for many years had fished from the vessel as a member of charter parties engaging it for that purpose.
The M/B Sportsman is a Class III passenger motorboat, approximately 60 feet in length, owned and operated by Captain Bryant out of Bayou La Battre, Alabama, near the coast of the Gulf of Mexico. It is used exclusively by charter parties, usually of eight to ten people, for fishing and pleasure trips, for which reservations are made months in advance. A flat daily rate is charged, regardless of the number of passengers aboard. The Captain had the right to, and does, refuse to charter for any reason. Only white people are carried; and the Captain often has refused to let persons other than members of his charter parties come aboard. He operates on no fixed schedules and is not regulated, except as to safety by the Coast Guard, by any governmental agency; neither does he have to report to any one the kind or number of passengers he takes on trips. In his own words, the situation is as follows:
In the face of these facts, can it be said that Captain Bryant operated the Sportsman as a "common carrier", so as to afford plaintiffs the coverage under the policy they here claim? We think not.
13 C.J.S. verbo Carriers §§ 530, 538, p. 1034 et seq., describes "common carriers" of passengers as follows:
9 Am.Jur. 430 et seq., verbo "Carriers", §§ 4, 10, puts it this way:
The Courts of Louisiana, where this contract of insurance was entered into, likewise have made this "right to refuse transportation" the critical criterion as to whether a carrier of passengers is "private" or "public". In Higginbotham v. Public Belt Railroad Commission, La.App., Orleans 1938, 181 So. 65, 69, a common carrier was defined as "* * * a carrier which `undertakes to carry for all people indifferently'." The same definition was followed in Brown v. Homer-Doyline Bus Lines, La.App., 2nd Cir., 1945, 23 So. 2d 348, 350, and that Court, in Bordelon v. State, La.App.1952, 59 So.2d 231, 239, found that the ferry boat there involved was not a common carrier because "* * * the defendant had the right to...
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...in the operation of a public vessel as a common carrier of passengers. The District Court on summary judgment gave a negative answer. 179 F.Supp. 403. We The issue arises under an insurance policy issued by the Insurer to Semon, the decedent. The principal sum of $20,000 was payable upon th......