Taylor v. Crain

• Decision Date: 15 July 1954
• Docket Number: 205.,181,No. 165,165
• Parties: Otto S. TAYLOR, Libellant, v. Max P. CRAIN and Mason W. Crain, now amended to Max P. Crain and Jacqueline B. Crain, Administratrix of the Estate of Mason W. Crain, deceased, Respondents.
• Court: U.S. District Court — Eastern District of Pennsylvania

125 F. Supp. 314

Otto S. TAYLOR, Libellant, v. Max P. CRAIN and Mason W. Crain, now amended to Max P. Crain and Jacqueline B. Crain, Administratrix of the Estate of Mason W. Crain, deceased, Respondents.

Nos. 165, 181, 205.

United States District Court W. D. Pennsylvania.

March 5, 1954.

On motions for new trial or in alternative to open the judgment July 15, 1954.

Hymen Schlesinger, Pittsburgh, Pa., for Otto S. Taylor.

H. A. Robinson, Dickie, McCamey, Chilcote, Reif & Robinson, Pittsburgh, Pa., for Max P. Crain and Mason W. Crain (now deceased).

Harland I. Casteel, Campbell, Houck & Thomas, Pittsburgh, Pa., for Crain Bros., Inc. and Jacqueline B. Crain, Adm'x.

MARSH, District Judge.

The libellant filed his libel on January 30, 1950, in Admiralty No. 165, against Crain Brothers, Inc. This action was discontinued at the trial. On August 15, 1950, he filed his libel against Max P. Crain and Mason W. Crain¹ at No. 181 in Admiralty, alleging that while he was employed as a deckhand by the respondents, he was injured on May 28, 1945, because of the unseaworthiness of the vessel on which he was working and because of negligence for which respondents are liable.

On October 3, 1951, he filed his libel for maintenance and cure in Admiralty No. 205.

Mason W. Crain died on November 6, 1951. His death was suggested by counsel for respondents on March 4, 1952. On December 3, 1953, a few days before trial, the libellant moved to substitute the administratrix of the estate of the decedent as a party respondent.

Counsel for the administratrix objected to the substitution, averring as his sole reason in opposition that more than two years had elapsed since the death of Crain and citing Rule 25(a) (1) of the Rules of Civil Procedure, 28 U.S. C.A.² This objection was overruled and the substitution allowed prior to the trial because the court thought that the action for unseaworthiness survived and that the Federal Rules of Civil Procedure "do not apply to proceedings in admiralty", Rule 81(a)(1). In addition, no prejudice to the estate was shown likely to result by allowing the delayed substitution, whereas a refusal conceivably might result in serious prejudice to libellant.

Pursuant to the mandate of the Court of Appeals in Taylor v. Crain, 3 Cir., 1952, 195 F.2d 163, reversing, D.C., 98 F.Supp. 149, and our practice in Slepski v. Dravo Corp., D.C.W.D.Pa.1951, 104 F.Supp. 89, and Crumrine v. Jones & Laughlin Steel Corp., D.C.W.D.Pa.1951, 104 F.Supp. 92, testimony was taken on the issue of laches, on which issue the court makes the following

Findings of Fact

1. Libellant filed his libel on August 15, 1950, alleging that injuries suffered on May 28, 1945, were caused by unseaworthiness and negligence.

2. At the time of the accident Max P. Crain, one of the respondents, was the captain of the vessel on which the injury occurred. This captain did not, as alleged in the libel, promise employment to libellant if he did not make a claim on account of his injuries, nor did he threaten to black-list him if he did file a claim.

3. The other respondent, Mason W. Crain, who died November 21, 1951, did not in his lifetime, promise libellant steady employment or state that he would prevent libellant from obtaining employment with other firms if a claim were filed. The evidence offered to prove that this decedent made such a statement to this libellant on May 29th or 30th, 1945, is incredible.

4. Respondents had prompt notice of libellant's injuries and libellant made a claim with respondents' insurance carrier, New Amsterdam Casualty Company, on July 6, 1945, and entered into an agreement for compensation at the rate of $18 per week under the Workmen's Compensation Laws of Pennsylvania, approved July 20, 1945, by the Bureau of Workmen's Compensation.³

5. The delay of over five years in filing the suit for unseaworthiness in admiralty is inexcusable.

6. The respondents were not prejudiced by the failure of libellant to file his libel for unseaworthiness for this period.

Discussion

Libellant attempted to prove by Alda Mae Wright that the delay in filing his libel over five years after the accident was excusable. Mrs. Wright testified that she was present in libellant's room shortly after the accident over eight years ago, and overheard a conversation between libellant and Mason W. Crain, the deceased respondent. She testified that Mr. Crain said to libellant, "If you do not bring suit I will see you have a job as long as you live, but if you do bring suit I will have you black-balled off the river."

Mrs. Wright was illiterate. She cleaned the rooms in the rooming house where libellant lived. She was unable to describe Mr. Crain correctly. She said she never saw him with his hat off. She said she observed him talking to libellant three times subsequent to the conversation mentioned, but on those occasions, it appears, she was not permitted to overhear the conversations.

In view of the fact that respondents were insured and the insurance company promptly took up with libellant the matter of his injuries, and entered into a compensation agreement on July 6, 1945 (albeit erroneously) to pay him compensation in accordance with the Pennsylvania Workmen's Compensation laws, we find it too difficult to believe that Mason Crain, without any proved benefit to his firm, tried to intimidate libellant. It is equally difficult to give credence to Mrs. Wright's testimony that she, the cleaning woman, was on hand and permitted by Crain to overhear the stultifying part of his conversation with libellant.

Further, within eight months after the accident, libellant, voluntarily so far as is appears, left respondents' employment and went to work for another company, and since then, for several other companies. His willingness, without protest, to so quickly disregard the alleged promise of lifetime employment is another circumstance tending to brand it and the threat as fabrications.

However, libellant has proved that respondents were on notice of his fall and injuries on the day of the event and, through their insurance company, had timely opportunity to investigate the accident, review the details, and ascertain the names of witnesses. Moreover, there has been hardly more than a suggestion on behalf of respondents that they have been prejudiced by the delay. The trial demonstrated that the eyewitnesses and the employment records were available. With respect to the element of prejudice, we think libellant has sustained his burden of proof. Accordingly, the motion for dismissal on the ground of laches will be denied. Cf. Loverich v. Warner Co., 3 Cir., 1941, 118 F.2d 690, 693, citing United States v. Alex Dussel Iron Works Inc., 5 Cir., 1929, 31 F.2d 535, 536.

Conclusions of Law

1. The libellant's suit predicated on negligence under the Jones Act, 46 U.S.C.A. § 688, is barred by the three-year limitation period, 45 U.S.CA. § 56, Taylor v. Crain, 3 Cir., 195 F.2d 163, at page 164, supra.

2. The libellant's case at No. 181 in Admiralty predicated on unseaworthiness in admiralty is not barred by analogy to the Pennsylvania two-year statute of limitations, 12 P.S.Pa. § 34, because the respondent was not prejudiced by the delay.

3. Respondents' motion to dismiss on the ground of laches will be denied.

On the merits of Nos. 181 and 205 in Admiralty, the court makes the following

Findings of Fact

1. Libellant at the time of filing his libel on August 15, 1950, was a citizen of Pennsylvania and resided in the City of Pittsburgh. At the time of trial he resided at Wadestown, West Virginia.

2. The respondents, Max P. Crain and Mason W. Crain, were, at the time of filing the libel, citizens of Pennsylvania, having their principal place of business in Pittsburgh.

At all times pertinent to these suits prior to November 6, 1951, they were partners engaged in river transportation. Mason W. Crain died November 6, 1951, and Jacqueline B. Crain, administratrix of the estate of Mason W. Crain, was substituted as a respondent over her objection.

3. On May 28, 1945, the respondent, Max P. Crain, was the captain of the steamer "Allegheny," a towboat in navigation on the Ohio River and its tributaries, and libellant was employed by the respondents on that date as a deckhand.

4. Part of the coupling apparatus on this vessel consisted of two steel knees situate on each side of the main deck near the bow.

5. The port knee is a triangular structure. One side rises at right angles to the main deck and is about 7 or 8 feet high; the base is fastened to the deck; 8 to 10 steps form the hypotenuse and lead from the deck to the top of the knee. The steps are about 18 inches wide. The platform at the top of the knee is about 18 inches by 12 inches.

6. A hand railing constructed of 1 inch or 1¼ inch pipe extended up the right side of the steps at the uniform height of approximately 30 inches to the top of the knee. The pipe was continuously welded and was fastened to the steps by steel rods.

7. Over the main deck is the boiler deck; the forward edge of the boiler deck is about four feet from the top of the port knee and substantially on the same plane with it.

8. On the morning of May 28, 1945, shortly after 6:00 o'clock, the "Allegheny" was on the Ohio River in the vicinity of Conway, Pennsylvania, for the purpose of picking up empty coal barges belonging to the Hillman Coal Company, which barges were among the fleet of barges moored at this landing. The captain, Max P. Crain, was operating the vessel and brought it into the fleet of barges broadside on the port side. At this time the libellant was standing at the top of the port knee, which position he took probably for the purpose of assisting the captain to identify, if possible, the numbers on the barges, and from this position to board a barge, if feasible.

9. At the time of the accident Charles C. McConnell, the watchman, was stationed on the main deck forward in view of the captain, who was in...