St. Hilaire Moye v. Henderson, LR-73-C-51.

• Decision Date: 17 October 1973
• Docket Number: No LR-73-C-51.,LR-73-C-51.
• Citation: 364 F. Supp. 1286
• Parties: Joyce ST. HILAIRE MOYE, Plaintiff, v. Emmett HENDERSON et al., Defendants.
• Court: U.S. District Court — Eastern District of Arkansas

364 F. Supp. 1286

Joyce ST. HILAIRE MOYE, Plaintiff, v. Emmett HENDERSON et al., Defendants.

No LR-73-C-51.

United States District Court, E. D. Arkansas, W. D.

October 17, 1973.

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Henry Woods, of McMath, Leatherman & Woods, Little Rock, Ark., for plaintiff.

James D. Storey, of Wright, Lindsey & Jennings, Little Rock, Ark., for defendant Emmett Henderson.

George Pike, Jr., of Smith, Williams, Friday, Eldredge & Clark, Little Rock, Ark., for defendants Basil Henderson, Doris Collins and Bill Hobson.

MEMORANDUM OPINION

HENLEY, Chief Judge.

This is a suit in admiralty brought by Joyce St. Hilaire Moye against Emmett Henderson, Basil Henderson, Doris Collins, and Bill Hobson; the suit arises out of a boating accident that took place on the afternoon of June 6, 1971, on the Arkansas River, an admittedly navigable stream, near the City of Little Rock, Arkansas. As a result of the accident plaintiff sustained serious and permanent personal injuries, and in this action she seeks compensation for those injuries. She also seeks punitive damages. Jurisdiction is predicated upon 28 U.S. C.A. § 1333(1).¹

The complaint alleges in substance that plaintiff's injuries were proximately caused by negligence on the part of all of the defendants, and that all of them are liable for the damages that plaintiff sustained; it is further contended that the alleged negligence of the defendant, Doris Collins, who was actually operating the boat at the time of the accident, is imputed to Emmett Henderson as "master" of the boat and to his father, Basil Henderson, as owner of the boat.

The complaint was filed on February 20, 1973. On March 6, 1973, defendants, Basil Henderson, Doris Collins, and Bill Hobson, filed their answer denying liability and also filed a cross claim against Emmett Henderson seeking indemnity or contribution from him should they or any of them be held liable to the plaintiff.

On March 28, 1973, Emmett Henderson filed a motion to dismiss the complaint on the ground that the case was not within the admiralty jurisdiction of the Court. The other defendants later joined in that motion. On June 8, 1973, the Court filed a Memorandum and Order overruling the motion, and thereafter, Emmett Henderson filed his separate answer denying liability and praying that the complaint be dismissed.

On the merits, the defendants deny that plaintiff's injuries were proximately caused by negligence on the part of any of the defendants, and they take issue with plaintiff on the issue of damages. Affirmatively, they contend that plaintiff was guilty of contributory negligence, and that she voluntarily assumed the risk of injury by sitting on the rear deck of the boat rather than in the rear seat.

The defendants also contend that in any event plaintiff cannot recover because she was a guest in the boat, and that recovery is precluded by Section 15 of Arkansas Act 453 of 1959, Ark.Stats. Ann., § 21-235, which provides that no person transported or riding as a guest on Arkansas waters shall have a cause of action against the owner or operator of such vessel for damages on account of any injury, death, or loss occasioned by the operation of such vessel "unless such vessel was wilfully and wantonly operated in disregard of the rights of others."²

The case has been tried to the Court, and this opinion incorporates the Court's findings of fact and conclusions of law.

Basil Henderson, one of the defendants herein, is the father of the defendant, Emmett Henderson. Pat Henderson is a nephew of Basil Henderson and a first cousin of Emmett Henderson. Defendant, Bill Hobson, is a close friend of the Henderson family.

At the time of the accident plaintiff's name was Joyce St. Hilaire; she was a divorcee who has remarried since the accident. She and the defendant, Doris Collins, were acquainted. Another party to be mentioned is Carolyn McRae, who was well acquainted with Pat Henderson's brother, Mike, who does not figure in the case. Doris Collins is substantially older than Emmett and Pat Henderson and Bill Hobson; however, in June, 1971, all of those individuals were adults.

Shorlty prior to the date of the accident Basil Henderson had purchased an eighteen-foot motor boat powered by a 225 horsepower inboard engine. This boat had a front seat and a rear seat; immediately behind the rear seat was a space referred to as a "deck". The boat's rudder and propeller were at the extreme rear of the boat and were underneath this deck. The deck was sufficiently large for rear seat passengers to sit upon it.

In the front of the boat there were a dashboard and a steering wheel, which was located on the right side of the vessel; on the right side of the vessel and at the right hand of the operator there was a single lever which controlled both gears and throttle. There were three gear positions, neutral, forward, and reverse.

On June 6, 1971, Basil Henderson turned the boat over to Emmett Henderson for use on a pleasure cruise on the Arkansas River. The cruise party consisted of Emmett Henderson, Pat Henderson, Bill Hobson, Doris Collins, Carolyn McRae, and plaintiff. The evidence reflects that on the night of June 5-6 plaintiff and Doris Collins had visited two or three nightclubs in Pulaski County, Arkansas, and had done a considerable amount of drinking; they returned to the Collins apartment about 2:00 a. m. on June 6, and accepted the invitation to join the cruise later in the day. While they may well have been suffering somewhat from their experience of the night before, there is no evidence that either one of them was intoxicated at the commencement of the voyage.

The boat was launched about 12:30 p. m. at the Burns Park launching ramp on the north side of the river. The male members of the party had one or two cases of beer in an ice chest and also had some whiskey, but there is no evidence that any whiskey was consumed prior to the accident. Plaintiff and Doris Collins brought along with them half a bottle of a type of wine known as "Cold Duck".

The boat was put into motion, and the party cruised up and down the river for some thirty to forty-five minutes, after which the boat was beached temporarily at a sandbar. During this phase of the journey, the three men were in the front seat of the boat and the three women were in the back seat.

Before stopping at the sandbar, the Henderson boat engaged in something of a race with another motor boat, and the Henderson party engaged in a degree of horseplay in that a hat would be thrown or blown into the river and then retrieved while the boat was in motion.

When the party left the sandbar, the seating arrangements were revised. There is a slight conflict as to just how the occupants of the boat were seated. While the conflict is not really material, the Court finds from a preponderance of the evidence that when the journey was resumed, Bill Hobson was at the controls and was sitting on the right of the front seat; Doris Collins and Carolyn McRae were also in the front seat, with the former occupying the middle position. The back seat passengers, plaintiff, Emmett Henderson, and Pat Henderson were not sitting in the back seat. Emmett Henderson was seated on the engine cover between the two seats. Plaintiff and Pat Henderson were sitting on the rear deck with their feet on the back seat; plaintiff was on the right-hand side of the boat, and Pat Henderson was on the left-hand side.

When the boat left the sandbar, it was headed downstream toward the series of bridges which cross the river and connect the cities of Little Rock and North Little Rock. As of that time the male members of the party had consumed a beer or two apiece, and the females had finished the Cold Duck, which involved each of them drinking two small glasses of it. The Court does not find that any of the occupants of the boat other than Doris Collins was affected by his or her consumption of alcohol to any substantial degree. As to Doris Collins, the Court finds that she was feeling and manifesting the effects of the Cold Duck to the extent that she was exhilarated or somewhat "high", as it is sometimes called.

As the boat proceeded downstream, Doris Collins asked to be permitted to operate the boat, and she represented falsely that she had had experience in the operation of boats of the type involved here. In point of fact, her only experience in operating a boat involved an outboard motor boat with a sixty horsepower engine, and she had never operated that except in the company of her former husband.

Carolyn McRae objected to Mrs. Collins being permitted to operate the boat, being of the opinion that she was too much under the influence of alcohol. Bill Hobson, who was operating the boat at the time, was not willing to permit Mrs. Collins to assume control without the consent of Emmett Henderson, but he suggested to Henderson that permission be given to Mrs. Collins to take over the wheel, and permission was granted. Mrs. Collins and Hobson changed positions, and the former took the wheel. This change of arrangement did not involve any significant alteration of the boat's speed or direction.

Mrs. Collins had no immediate problem with operating the boat, which, at the moment, involved nothing but steering it, and the accident presently to be described would in all probability not have occurred had not Pat Henderson decided that he wanted to water ski. He called on Mrs. Collins to stop the boat so that he could make his preparations and get into the water; Mrs. Collins apparently did not hear, and certainly she did not heed Henderson's first request that the boat be stopped. He repeated his request, by then a demand, in a loud and rough tone of voice, and Mrs. Collins reacted violently.

Instead of simply pulling the throttle-gear lever back into the neutral position, she pulled it completely through that position and thus threw the boat, which was moving about...