Shannon v. Massachusetts Bonding & Ins. Co.

• Decision Date: 20 September 1945
• Docket Number: Civil Action No. 1014.
• Citation: 62 F. Supp. 532
• Parties: SHANNON (SEISMIC EXPLORATIONS, Inc., Third-Party Plaintiff) v. MASSACHUSETTS BONDING & INS. CO. et al. (WILLIAMS, Third-Party Defendant).
• Court: U.S. District Court — Western District of Louisiana

62 F. Supp. 532

SHANNON (SEISMIC EXPLORATIONS, Inc., Third-Party Plaintiff) v. MASSACHUSETTS BONDING & INS. CO. et al. (WILLIAMS, Third-Party Defendant).

Civil Action No. 1014.

District Court, W. D. Louisiana, Opelousas Division.

September 20, 1945.

Voorhies & Labbe, of Lafayette, for Seismic Explorations, Inc., and Union Oil Co. of California.

St. Clair Adams, Jr., of New Orleans, for George Williams and Massachusetts Bonding & Ins. Co.

Edward F. LeBlanc, of Abbeville, for Hugh L. Shannon.

PORTERIE, District Judge.

Shannon, the plaintiff, seeks, first, a judgment in solido against the Massachusetts Bonding and Insurance Company, the Seismic Explorations, Inc., of Delaware, and the Union Oil Company of California, or, alternatively, seeks a judgment against any one of the three.

We quote the following from the petition, Article Three:

"That the cause of action and injuries herein complained of occurred in the Western District of the state of Louisiana, on the boat `Barbette', a vessel engaged in interstate commerce and navigation over its navigable waters; that said defendant corporations named are respectively corporations of the states of Massachusetts, Delaware and California and that plaintiff is a citizen of the state of Louisiana and resides in the Eastern District of the state of Louisiana; that the matter in controversy exceeds, exclusive of interest and costs, the sum of Three Thousand & 00/100 ($3,000.00) Dollars".

George Williams was included in the original suit by the plaintiff, but, by amendment (hearing had thereon and the Court permitting same), making use of Act 55 of 1930 (direct-action statute), George Williams was eliminated, and his insurer, Massachusetts Bonding and Insurance Company, was retained. Then, a previous motion to dismiss, filed by the defendants, based on the want of jurisdiction, because Shannon and Williams, plaintiff and defendant, respectively, were residents of the same district, was overruled and denied.

This established the necessary diversity of citizenship, and there has been tacit admission that the amount involved is over $3,000 exclusive of interest and costs.

Next we quote all of Articles Five, Six, and Seven of the petition:

"Five. That said accident was caused by the negligence and negligent operations of the operator and/or captain of said vessel, one Robert Lemaire, who was then and there the agent, acting under the instructions, supervision and control of all of said defendants; plaintiff alleges, alternatively, that said Robert Lemaire was the employee and agent of and/or acting as such under the instructions, supervision and control of defendant Seismic Explorations, Inc., of Delaware, or, alternatively, of defendant Union Oil Company of California, or, alternatively, of defendant George Williams.

"Six. Plaintiff alleges negligence causing said accident upon the part of all of said defendants, its said operator and/or captain, agent and employee, and, alternatively, negligence upon the part and as such of said Seismic Explorations, Inc., of Delaware, or, Union Oil Company of California, or, George Williams; that as a result of said negligence he sustained the injuries and damages herein complained of.

"Seven. Plaintiff alleges further the unseaworthiness of said vessel at said time in addition to the negligence herein complained of as causing said accident and injuries."

In order to have all the facts of the case, as they are controlling, we must quote Articles Nine, Ten, Eleven, and Twelve of the petition:

"Nine. Plaintiff alleges that the motor vessel `Barbette' was owned by defendant George Williams, who in turn had leased same to defendant Seismic Explorations, Inc., of Delaware and/or defendant Union Oil Company of California; that defendant Seismic Explorations, Inc., of Delaware was at the time doing certain seismograph and other exploratory work for defendant Union Oil Company of California, and/or, alternatively was the agent acting as such for said last named defendant who was in turn engaged in the exploration, discovery and production of oil and gas in competition with producers of other states and for the intended as well as actual sale and transportation of said oil and gas in interstate commerce.

"Ten. Plaintiff alleges that at the time of as well as before said accident he was employed by the United States Government as an `Inspector of Permit Work', War Department, Engineers, New Orleans District, Inspection Division, Permit Section, and was assigned for such purposes to the operations for said defendant companies, or either of them, which operations were then being conducted on White Lake, the point which the said vessel `Barbette' was about to depart for when the accident herein alleged occurred; plaintiff further alleges that he was properly aboard said vessel, had a legal right to be on the same and/or was a licensee thereon and was assigned to said operations for said purposes with the full knowledge, consent and agreement therefor by said defendant corporations, or either of them.

"Eleven. Plaintiff alleges further that the said accident occurred in the following manner: That on the morning of June 21st, 1943, plaintiff together with the members of the crews of said defendant corporations, all assigned to operations on White Lake in Vermilion Parish, Louisiana, for the aforesaid purposes, were aboard the vessel `Barbette' preparatory to travel there from a point known as `Forked Island Ferry' thence via Intra-Coastal Canal waterway to operations on said White Lake, when the hereinbefore mentioned captain and/or operator of said vessel, Robert Lemaire, negligently started the engine without first removing from the bilge the gasoline leakage which he had negligently allowed to accumulate there and without first allowing to escape the negligently accumulated gasoline vapours beneath the deck and in the cabins; that upon so doing, either a spark from a defective switch or starter wires or motor and/or by reason of the engine defectively backfiring, caused these accumulated gases and gasoline instantly to ignite causing explosion and fire which immediately enveloped the vessel, consuming it with fire and totally destroying same in a short time; that plaintiff was aboard and inside the cabin of said vessel housing the motor and was likewise surrounded and enveloped by flame, as were the others in said boat at that time.

"Twelve. Plaintiff alleges that said Robert Lemaire negligently started the engine of said vessel `Barbette' and that said vessel, further, was unseaworthy and unsafe."

The Seismic Explorations, Inc., then filed a third-party complaint, seeking to make George Williams, and, in turn, the Massachusetts Bonding and Insurance Company, third-party defendants. Service by regular summons has been made on Williams; a copy of the complaint has been mailed to the attorney of record for Massachusetts Bonding and Insurance Company.

The content of the third-party complaint is that George Williams, a resident of the state of Louisiana, was the owner of the Barbette and was the partner or the employer of Robert Lemaire; that the Seismic Explorations, Inc., had, by verbal contract with Williams, rented or hired the Barbette, which was to be kept in a good, safe, and running condition, and also was to be furnished with a boat operator at Williams' expense (hence, Lemaire). The third-party complaint also states what was the monthly payment to be made to Williams; who was to furnish the necessary fuel to operate the boat; where the boat was to be kept; that the boat was to be at the disposal of third-party plaintiff for the transportation of its employees, and working instruments, and for the carrying of the messages of the company to and from the work location at which third-party plaintiff's crew was operating, at such time as third-party plaintiff might direct; that Williams had hired and employed Lemaire personally and paid him an amount unknown to third-party plaintiff; and other added items of relative unimportance. And paragraph 6 is:

"That the only control which third-party plaintiff had over the boat and its operator was to indicate the time when the boat should travel and the destination of such travel."

The third-party complaint further develops the relations between the parties involved in the original complaint. It tends to expand and develop the facts of the case. It does bring George Williams back into the case as a party, left out under Act 55 of 1930.

George Williams, and the Massachusetts Bonding and Insurance Company, moved to dismiss the third-party complaint, because: (a) It fails to state a claim against third-party defendants upon which relief can be granted; because (b) it attempts to make of the Massachusetts Bonding and Insurance Company, already a defendant, a third-party defendant; and because (c) Shannon and Williams are both residents of the state of Louisiana, the diversity of citizenship is wanting.

On this last point (c), the law is that such may exist under the theory of ancillary jurisdiction. Cases previous to the Rules: Phelps v. Oaks, 117 U.S. 236, 6 S.Ct. 714, 29 L.Ed. 888; Hardenbergh v. Ray, 151 U.S. 112, 14 S.Ct. 305, 38 L.Ed. 93; Moore v. New York Cotton Exchange, 2 Cir., 296 F. 61, affirmed 270 U.S. 593, 46 S.Ct. 367, 70 L.Ed. 750, 45 A.L.R. 1370; Alexander v. Hillman, 296 U.S. 222, 56 S. Ct. 204, 80 L.Ed. 192. Cases subsequent to the Rules: Crim v. Lumbermen's Mut. Casualty Co., D.C., 26 F.Supp. 715, 718; Bossard v. McGwinn, D.C., 27 F.Supp. 412; Kravas et al. v. Great Atlantic & Pacific Tea Co. Peoples-Pittsburgh Trust Co. v. Davis, D.C., 28 F.Supp. 66; Satink v. Township of Holland, D.C., 28 F.Supp. 67; Crum v. Appalachian Electric Power Co., D.C., 29 F.Supp. 90; Lewis v. United Air Lines Transport Corporation, D.C., 29 F. Supp. 112; Morrell v. United States Air Lines Transport Corporation, 29 F.Supp. 757; Schram v. Roney, 30 F.Supp. 458; Barkeij v. Don Lee, Inc.,...