Spiller v. THOMAS M. LOWE AND ASSOCIATES INC.

• Decision Date: 11 June 1971
• Docket Number: Civ. A. No. T-70-C-2.
• Citation: 328 F. Supp. 54
• Parties: Mrs. Catherine SPILLER, a Widow, as Administratrix of the Estate of L. Roy Spiller, Deceased, et al., Plaintiffs, v. THOMAS M. LOWE, Jr. and ASSOCIATES INC., Defendant, Mrs. Dorothy Norman Davis, Intervenor.
• Court: U.S. District Court — Western District of Arkansas

328 F. Supp. 54

Mrs. Catherine SPILLER, a Widow, as Administratrix of the Estate of L. Roy Spiller, Deceased, et al., Plaintiffs, v. THOMAS M. LOWE, Jr. and ASSOCIATES INC., Defendant Mrs. Dorothy Norman Davis, Intervenor.

Civ. A. No. T-70-C-2.

United States District Court, W. D. Arkansas, Texarkana Division.

June 11, 1971.

COPYRIGHT MATERIAL OMITTED

Tackett, Young, Patton & Harrelson, Texarkana, Ark., John K. Dunlap, Atlanta, Ga., for defendants.

Arnold & Arnold, Texarkana, Ark., Newman & Smith, Harkness, Friedman & Kusin, Texarkana, Tex., for plaintiffs.

AMENDED AND CORRECTED MEMORANDUM OPINION

PAUL X WILLIAMS, District Judge.

On May 8, 1969, the Defendant, Lowe and Associates, was engaged in engineering, mapping and surveying activities on the Red River within the Western District of Arkansas, Texarkana Division, pursuant to a Contract entered into on or about May 22, 1968, with the United States Army, Corps of Engineers, New Orleans District. The Defendant is a Georgia Corporation, with its principal office in Atlanta, Georgia, whose corporate purposes include the mapping and surveying of navigable bodies of water within the continental United States. The Contract called for the work to be performed from mile 230 to mile 436 of Red River. The Defendant had previously completed a similar contract calling for such work below mile 230.

The completed work product of the Defendant consists of a volume of maps which was introduced in evidence. The maps show the location of the River and provide data regarding its depth, and the elevations and locations of its banks. In order to obtain the information needed, it was necessary for the Defendant to hire numerous employees, including the Plaintiffs' decedents, L. Roy Spiller, age 20, John Winston Smith, age 19, James Louis Dollarhide, age 23, and William H. Davis, age 24, all of whom were Negroes. The defendant divided its employees into three types of crews, with each to perform a part of the work.

Mr. Fred Schmid was designated by the Defendant as its field supervisor and was in charge of the crews. One of Mr. Schmid's functions was to set out pipes on the riverbank at intervals in order that the crews would be able to locate themselves in the performance of their work. There were three types of crews: one for setting out stakes on the river bank at 500 foot intervals, these locations being referred to as ranges; one for the taking of soundings to determine the depth of the River; and overbank crews, whose function was to determine elevations at 50 foot intervals along the range lines away from the banks.

The individual employees of the Defendant were assigned to a specific crew and each crew had its own party chief, boat and equipment.

John Winston Smith and William Davis were regularly assigned to the sounding crew, whose party chief was Charles Crockett. L. Roy Spiller and James Louis Dollarhide were regularly assigned to the stake crew, whose party chief was Lamar "Skip" Blalock.

The boats were used by each crew for transportation from one work site to another, as well as being used for transportation to and from the point of departure. The sounding crew utilized a device for the purpose of measuring the depth of the water, and it was necessary for this work to be done primarily on the water. In the case of the staking crew and overbank crew, the boat was further utilized in transferring equipment and men from one bank of the River to the other, as required. A substantial part of the work of members of overbank section crews was also done on the water or was related to the maintenance and operation of the boat assigned to those crews. The use of the boats was required in the performance of each crew's work, and constituted an integral part thereof.

The Defendant had six boats which were used on the River. The one involved in this case was a 16 foot aluminum flat bottom boat manufactured by Ouachita Boat & Marine, Incorporated, being model number 16 SDW. This particular boat was purchased in the Summer of 1967, together with a sister boat. These two boats were similar to the remaining four boats utilized by Defendant, except they did not have flotation material underneath the front deck.

The manufacturer's rating for the boat in question was as follows:

"This boat is built to accommodate under normal conditions an outboard motor of not more than 35 OBC certified horsepower and 5 persons at 150 pounds per person or a properly located maximum weight of 1,080 pounds for persons, motor and gear. This boat meets all State flotation requirements. Arkadelphia, Ark."

On the morning of May 8, 1969, the Defendant maintained its field office in Texarkana, Miller County, Arkansas. The work had progressed on Red River to a point near Fulton and above. The party chiefs were to arrive at the field office at 7:30 A.M., in order to receive instructions from Schmid, and the men were to arrive at 8:00 A.M. Since Charles Crockett had reported in ill, Schmid assigned his crew members, John Winston Smith and William Davis, to Blalock's crew. Blalock's crew normally consisted of L. Roy Spiller, James Louis Dollarhide, and William Warren. His crew now consisted of six men.

At this time, Schmid was unaware that the River was on a rise and that the water was swift and dangerous. The evidence shows that the River had risen from 13.2 on May 7, 1969, to 16.6 feet on May 8, 1969, at 8:00 A.M.

After the crew had left, at about 9:00 A.M., Schmid left Texarkana by truck for Montgomery, Alabama, without having appointed anyone to be in charge during his absence. In passing over the bridge at Garland, Arkansas, he observed the condition of the River. He stated it was as high as he had ever seen it. Nevertheless he proceeded on to Montgomery. The River continued to rise throughout the day of May 8, 1969.

Blalock took his five crew members to a point near mile 410 on the South bank of Red River on the Harper farm. At this time, the River was swift and extremely dangerous. The boat in question had been left on the river bank at this point the night before, tied to an iron stake with a rope approximately 200 feet long. Upon arrival, the water had risen and the bank had caved in on top of the boat. The boat was submerged and full of mud and debris. It was necessary for the six men to obtain assistance from another crew, whose party chief was T. R. Bradley, to retrieve the boat from the water. The front of the boat was dented from the cave-in. All of the mud and debris could not be removed from under the deck of the boat. Under Blalock's direction, his crew loaded the boat with their equipment, including six life jackets furnished by Defendant, and all of them got in the boat and proceeded into the River and downstream. Three of the men, including Warren, were let out of the boat to perform overbank work and the remainder went to another point on the River to perform work. The River continued to rise during the day, and at 4:00 P.M., the stage at Fulton was 18 feet. At about this time, Blalock returned with his two men to pick up the three remaining men. Blalock then proceeded upriver to return to the truck. The evidence shows that at this time the River was very swift and was full of debris, whirlpools, floating logs, and underlogs. The underlogs are described as trees which were below the surface of the water, ranging in size to large trees, and which would frequently shoot out of the water with great force.

The evidence is conflicting as to exactly what occurred but the evidence is clear that the boat capsized and all the men were thrown into the water. The boat turned over, the front end was submerged, and only the stern and propeller of the motor could be seen above the surface of the water. Warren, a white man, managed to swim ashore. While in the water, he last saw Blalock, the only other white man, hanging on to the stern of the boat, and Smith, who was wearing a life jacket, hanging on to Blalock's neck and crying for help. Warren testified that Dollarhide, who was also wearing a life jacket, went underwater and did not come up, and that he last saw Spiller and Davis trying to hang on to the side of the boat. Warren swam, or was carried by the current, to the North bank of the River. He heard the men yelling and in a state of panic, while he was in the water, but when he reached shore and looked back, he could not see the men, boat or any gear. He estimated that it required him five minutes to get to shore.

Although extensive rescue operations were later conducted, the body of Smith was not found for several days and the body of Davis was not found until 28 days later. The bodies of Spiller, Dollarhide and Blalock were never found. Neither of the bodies recovered was found with life jackets. The bodies were found far downstream. Other equipment, presumably from the boat, was found about 5:00 P.M. by John Cunningham, Jr., a commercial fisherman, approximately 4 miles South of Fulton. This included a gas tank, water can, and range pole.

Since this action is in admiralty, the first thing to be determined is whether Red River at the area in question was and is a navigable stream. If it is not, then this case can not be maintained.

The Court finds that it was and is a navigable stream under the evidence and the applicable law. The parties to this action have developed the facts thoroughly and point out that Red River at the point in question has been considered a navigable stream from the earliest times. In the case of Oklahoma v. Texas, 258 U.S. 574, 42 S.Ct. 406, 66 L. Ed. 771 the United States Supreme Court held:

"the Red river was known to be navigable from its mouth to near the Eastern boundary of Oklahoma." 258 U.S. 586, 42 S.Ct. 411, 66 L.Ed. at 776, and that "Lanesport, Ark., which is near the Oklahoma boundary, has been the usual head of navigation." 258 U.S. at 589, 42 S.Ct. 412, 66 L.Ed. at 778.

Lanesport is a community in Little River County, Arkansas,...