Smith v. Clark Sherwood Oil Field Contractors, 71-1570. Summary Calendar.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtPER CURIAM
Citation457 F.2d 1339
PartiesRodney SMITH et al., Plaintiffs, Irene Hanks Smith, surviving widow of John B. Smith, deceased, etc., et al., Intervenors-Appellants, v. CLARK SHERWOOD OIL FIELD CONTRACTORS, et al., Defendants-Appellees.
Docket NumberNo. 71-1570. Summary Calendar.,71-1570. Summary Calendar.
Decision Date17 April 1972

457 F.2d 1339 (1972)

Rodney SMITH et al., Plaintiffs, Irene Hanks Smith, surviving widow of John B. Smith, deceased, etc., et al., Intervenors-Appellants,
v.
CLARK SHERWOOD OIL FIELD CONTRACTORS, et al., Defendants-Appellees.

No. 71-1570. Summary Calendar.*

United States Court of Appeals, Fifth Circuit.

February 9, 1972.

Rehearing and Rehearing Denied April 17, 1972.


John Gano, Houston, Tex., D. Mark Bienvenu, Lafayette, La., for Rodney Smith; Joseph D. Jamail, Jr., Jamail & Gano, Houston, Tex., of counsel.

Timothy McNamara, Lafayette, La., for Clark Sherwood Oil Field Contractors & Employers Mutual Liability Ins. Co. of Wisconsin; Davidson, Meaux, Onebane & Donohoe, Lafayette, La., of counsel.

W. Gerald Gaudet, Lafayette, La., for Quintana Petroleum Corp.; Voorhies, Labbe, Fontenot, Leonard & McGlasson, Lafayette, La., of counsel.

Before THORNBERRY, MORGAN and CLARK, Circuit Judges.

Rehearing and Rehearing En Banc Denied April 17, 1972.

457 F.2d 1340

LEWIS R. MORGAN, Circuit Judge:

In this suit under the Jones Act, 46 U.S.C. § 688, the personal representative of a deceased seaman seeks to recover death benefits on behalf of the lawful wife and children and also for a child alleged to be the illegitimate daughter of the deceased. The district court granted recovery by adopting stipulations signed by the personal representative and the defendant companies. On the same day the court dismissed the petition for intervention previously granted to the lawful wife and children. Having determined that this case involves two classes of beneficiaries with competing and adverse interests, we reverse the judgment of the district court and the order dismissing intervention.

John B. Smith was employed as roustabout by Clark Sherwood Oil Field Contractors. On April 11, 1967, at the age of 35, Smith drowned while performing work for his employer on a ship owned by Quintana Petroleum Corporation. At the time of his death, Smith was cohabiting in Louisiana with Carol Carpenter and her two-month old daughter, Cheryl Ann Smith, who was allegedly fathered by John Smith. For two years prior to his death, Smith's lawful wife and four legitimate children had been living apart from him in Houston, Texas.

Thirteen days after the fatality, John Smith's brother, Rodney Smith, petitioned the state court in Louisiana to have himself appointed as administrator of the estate. The court granted the petition, and on May 11, 1967, Rodney filed suit in federal district court in Louisiana demanding recovery under the Jones Act, supra, in his capacity as personal representative for the decedent's beneficiaries. In his federal complaint, Rodney stated that Cheryl Ann Smith was in fact the minor child of the deceased and therefore entitled to compensation along with the wife and the four legitimate minor children. Named as defendants in the suit were Clark Sherwood Oil Field Contractors and its insurance carrier, Employers Mutual Liability Insurance Company of Wisconsin, and the Quintana Petroleum Corporation (hereinafter referred to collectively as defendants).

Some five months later the widow, Irene Smith, filed suit in Louisiana state court to replace Rodney Smith as administrator, claiming she was entitled to administer her husband's estate. Although noting that the "widow makes extremely equitable arguments", the Court of Appeal of Louisiana rejected her contentions and upheld Rodney's appointment. Succession of Smith (Ct. of Appeal of Louisiana, Third Circuit, 1969) 219 So.2d 291, 292.1

Failing in this attempt, the widow had herself appointed administratrix of the decedent's estate in Texas and there filed a Jones Act suit in an attempt to recover for the death of her husband.

457 F.2d 1341

However, the Texas suit was apparently abandoned when the widow filed a petition to intervene in the Louisiana federal suit contending that Rodney Smith was not adequately representing the interest of herself and her four children. Specifically, Irene Smith claimed that Cheryl Ann Smith was not the natural child of the deceased, and, consequently, Cheryl was not entitled to any compensation as a beneficiary. Initially the district judge allowed Irene Smith to intervene even though her petition for intervention was at all times opposed by Rodney Smith and the defendants.

In the meantime, Rodney Smith began negotiations with the defendants in an attempt to reach a settlement of all claims arising from the death of John Smith. Finally the parties signed stipulations in which it was agreed that Cheryl Ann Smith was the natural child of the decedent. The defendants admitted liability in the amount of $50,000.002 to be distributed to the beneficiaries as follows:

Irene Hanks Smith . .(widow) ............... $12,000.00
                Linda Faye Smith . .(legitimate child) ...... 2,500.00
                John Smith .....(legitimate child) .......... 3,500.00
                Jenell Smith ....(legitimate child) ......... 5,000.00
                James Smith ....(legitimate child) ......... 6,000.003
                Cheryl Ann Smith . .(allegedly illegitimate
                 child) ........... 21,000.00
                

These stipulations were presented to the court together with two affidavits which alleged that the deceased had publicly acknowledged Cheryl Ann Smith to be his child, and that the deceased was supporting the child up until the date of his death.4 One of the affidavits was signed by Rodney Smith, the personal representative in this lawsuit.

After considering the stipulations and the attached affidavits the district court entered an order which dismissed the intervention previously granted to Irene Smith. Apparently concluding that the question of Cheryl Ann Smith's paternity was no longer a litigable issue and that all conflict between the personal representative and the widow was resolved, the court stated as follows:

"Based upon the unopposed affidavits in the record, the Court finds that the child, Cheryl Ann Smith, is a child of the deceased, John D. Smith, who was duly acknowledged by him tacitly, and as such, is entitled and has status as a surviving beneficiary of the deceased, John B. Smith, under the Federal Employer\'s Liability Act." (Emphasis supplied).

Subsequently, the district court entered judgment in favor of Rodney Smith and against the defendants. The court made findings of fact which adopted the factual allegations contained in the stipulations, and in its conclusions of law, the court followed the stipulations and

457 F.2d 1342
awarded recovery in the amount of $50,000.00 to be distributed to each beneficiary in the same amounts as were agreed upon by Rodney Smith and the defendants. (See page 1340 of opinion, supra)

On the same day judgment was rendered, the court entered a formal order which again stated that the intervention of Irene Smith was dismissed, and that Cheryl Ann Smith was the natural child of the decedent.

In summary, the result of the judgment entered by the district court was that Irene Smith was effectively ousted from the lawsuit and Cheryl Ann Smith was held to be the deceased's child and allowed to participate in the recovery with the five other undisputed beneficiaries. For the reasons that follow we hold that the court erred in its decision.

I.

At the outset we turn to the district court's holding, based upon "unopposed affidavits in the record", that Cheryl Ann Smith was the child of the deceased. Although not contained in the printed appendix nor cited by either party to this appeal, there was evidence in the record before the district court which clearly controverted what was alleged in the affidavits. When questioned by defendants' counsel on deposition, Irene Smith had the following to say concerning the paternity of Cheryl Ann Smith:

Q. Now, Mrs. (Irene) Smith were you aware at some of this time since 1964, that he (John Smith) was living with another woman in Louisiana?
A. Yes, sir.
Q. All right. Did you realize or have any indication that they also had a child?
A. Well, that I couldn\'t tell you, sir.
Q. Well, have you heard? I realize you might not know for sure, but had you heard anything to indicate to you that had happened?
A. I\'ll put it to you this way, they said it was, but I don\'t believe my husband could have any more kids.
Q. All right. What is your reason for believing he could not?
A. Because my baby was, let\'s see, he was six and I didn\'t have any more after that. And I was always getting pregnant, because as you can see, my kids are real close.
(Emphasis supplied).

Obviously, these statements, combined with the affidavits, created a factual issue which the intervenor was entitled to have adjudicated in open court rather than disposed of summarily by the district judge.5 The holding that Cheryl Ann Smith is the child of John Smith is reversed.

II.

Next, we come to the more difficult question of whether Rodney Smith, or any other single representative, could adequately represent all the alleged beneficiaries under the circumstances of this case.

The Jones Act, supra, gives the personal representative of a deceased seaman the right to maintain an action for damages against the decedent's employer when the fatal injury occurred in the course of the decedent's employment. By its terms the statute incorporates the provisions of the Federal Employers' Liability Act, 45 U.S.C. §§ 51-59, which makes common carriers, and therefore shipowners, liable to the deceased employee's personal representative "for the benefit of the surviving widow . . . and children of such employee". 45 U.S.C. § 51. The word "children" as used in this statute includes illegitimate children

457 F.2d 1343
as well as legitimate children so that Cheryl Ann Smith, if she is indeed the child of John Smith has a cause of action for damages under the Jones Act, supra. See Levy v. Louisiana, 1968, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436, and Hebert v. Petroleum Pipe Inspectors, Inc., 5 Cir. 1968, 396 F.2d 237

The district court seemed to be of the opinion that Cheryl's alleged right of...

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12 practice notes
  • Tulsa Indus. Auth. v. City of Tulsa, No. 105,460.
    • United States
    • Supreme Court of Oklahoma
    • February 6, 2012
    ...1106 (10th Cir.1976), cert. denied, 429 U.S. 1121, 97 S.Ct. 1157, 51 L.Ed.2d 572 (1978); Smith v. Clark Sherwood Oil Field Contractors, 457 F.2d 1339 (5th Cir.1972). FN67. Nuesse v. Camp, 385 F.2d 694, 703 (D.C.Cir.1967) (“interests need not be wholly ‘adverse’ before there is a basis for c......
  • Neal v. Barisich, Inc., Civil A. No. 88-3119.
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • February 28, 1989
    ...beneficiaries exists. Calton v. Zapata Lexington, 811 F.2d 919, 921 (5th Cir.1987) (citing Smith v. Clark Sherwood Oil Field Contractors, 457 F.2d 1339, 1343-45 (5th Cir.), cert. denied, 409 U.S. 980, 93 S.Ct. 308, 34 L.Ed.2d 243 (1972)). Because no parties have objected at this time to Ste......
  • Ivy v. Security Barge Lines, Inc., No. 76-4130
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 4, 1978
    ...among the beneficiaries requiring multiple representation, See, e. g., Smith v. Clark Sherwood Oil Field Contractors, 5 Cir. 1972, 457 F.2d 1339, Cert. denied, 1972, 409 U.S. 980, 93 S.Ct. 308, 34 L.Ed.2d 243; Civil v. Waterman Steamship Corp., 2 Cir. 1954, 217 F.2d Page 735 The Supreme Cou......
  • Purnell v. City of Akron, No. 89-3969
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • February 13, 1991
    ...is proved, and though appearing neutral, he could be considered their opponent. Cf. Smith v. Clark Sherwood Oil Field Contractors, 457 F.2d 1339, 1344 (5th Cir.1972) (the court failed to see how one representative could adequately pursue and settle claims, on behalf of both legitimate and i......
  • Request a trial to view additional results
12 cases
  • Tulsa Indus. Auth. v. City of Tulsa, No. 105,460.
    • United States
    • Supreme Court of Oklahoma
    • February 6, 2012
    ...1106 (10th Cir.1976), cert. denied, 429 U.S. 1121, 97 S.Ct. 1157, 51 L.Ed.2d 572 (1978); Smith v. Clark Sherwood Oil Field Contractors, 457 F.2d 1339 (5th Cir.1972). FN67. Nuesse v. Camp, 385 F.2d 694, 703 (D.C.Cir.1967) (“interests need not be wholly ‘adverse’ before there is a basis for c......
  • Neal v. Barisich, Inc., Civil A. No. 88-3119.
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • February 28, 1989
    ...beneficiaries exists. Calton v. Zapata Lexington, 811 F.2d 919, 921 (5th Cir.1987) (citing Smith v. Clark Sherwood Oil Field Contractors, 457 F.2d 1339, 1343-45 (5th Cir.), cert. denied, 409 U.S. 980, 93 S.Ct. 308, 34 L.Ed.2d 243 (1972)). Because no parties have objected at this time to Ste......
  • Ivy v. Security Barge Lines, Inc., No. 76-4130
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 4, 1978
    ...among the beneficiaries requiring multiple representation, See, e. g., Smith v. Clark Sherwood Oil Field Contractors, 5 Cir. 1972, 457 F.2d 1339, Cert. denied, 1972, 409 U.S. 980, 93 S.Ct. 308, 34 L.Ed.2d 243; Civil v. Waterman Steamship Corp., 2 Cir. 1954, 217 F.2d Page 735 The Supreme Cou......
  • Purnell v. City of Akron, No. 89-3969
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • February 13, 1991
    ...is proved, and though appearing neutral, he could be considered their opponent. Cf. Smith v. Clark Sherwood Oil Field Contractors, 457 F.2d 1339, 1344 (5th Cir.1972) (the court failed to see how one representative could adequately pursue and settle claims, on behalf of both legitimate and i......
  • Request a trial to view additional results

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