Warner v. Goltra

• Decision Date: 20 December 1933
• Citation: Warner v. Goltra, 67 S.W.2d 47, 334 Mo. 396 (Mo. 1933)
• Parties: Claire A. Warner, Administratrix of Estate of John M. Warner, Appellant, v. Edward F. Goltra, Doing Business Under the Style and Name of the Goltra Barge Line
• Court: Missouri Supreme Court

67 S.W.2d 47

334 Mo. 396

Claire A. Warner, Administratrix of Estate of John M. Warner, Appellant, v. Edward F. Goltra, Doing Business Under the Style and Name of the Goltra Barge Line

Supreme Court of Missouri

December 20, 1933

Appeal from Circuit Court of City of St. Louis; Hon. Claude O Pearcy, Judge.

Affirmed.

Fordyce Holliday & White and Wilson, Kyser, Armstrong & Allen for appellant.

(1) The history and purpose of Section 33 of the Jones Act show that Congress did not intend to exclude masters of vessels and their personal representatives from the remedial effects thereof.Sec. 33, Jones Act, sec. 688(ch. 18, U.S.C.A Title 46, ch. 250, sec. 33,41 Stat. 1007);Panama Railroad Co. v. Johnson,264 U.S. 389, 68 L.Ed. 754;O'Hara v. Steamship Co.,269 U.S. 367, 70 L.Ed. 315;La Follette Seaman's Act, 38 Stat. 1185, ch. 153, sec. 20;Chelentis v. Steamship Co.,247 U.S. 385, 62 L.Ed. 1177;U.S. Senate Hearings on Establishment of a Merchant Marine, pp. 1628, 1709, 1712;46 U.S.C. A., 861, ch. 250, sec. 1, 41 Stat. 988;Lindgren v. United States,281 U.S. 43, 74 L.Ed. 691;Kuhlman v. W. & A. Fletcher Co.,20 F.2d 467;International Stevedoring Co. v. Haverty,272 U.S. 52, 71 L.Ed. 160;In re Scott,250 F. 648;Clayton v. The E. B. Emory,4 F. 344;Lombard S. S. Co. v. Anderson,134 F. 569.(2) The authorities which define the word "seaman" show that Congress did not intend to exclude masters of vessels and their personal representatives from the remedial effects of Section 33 of the Jones Act.Sec. 713, ch. 18,Title 46, U.S.C. A. (R. S. 4612, Dec. 21, 1898, ch. 28, sec. 23, 30 Stat. 762, Mar. 4, 1915, ch. 153, sec. 10,38 Stat. 1168;Piedmont & N. Ry. Co. v. United States,30 F.2d 431;Sutherland on Statutory Construction, sec. 328;Hopkins v. United States,235 F. 98;Railroad Co. v. United States,178 F. 11;The Burns Bros., 29 F.2d 855;28 U.S.C. A. 837(June 12, 1917, ch. 27, sec. 1, 40 Stat. 157, July 1, 1918, ch. 113, sec. 1,40 Stat. 683);In re Scott,250 F. 647;The Balsa, 10 F.2d 408;The E. H. Russell, 42 F.2d 568;The Herdis, 22 F.2d 304;Jones Act, sec. 33, 46 U.S.C. A. 688;Longshoremen's & Harbor Workers' Compensation Act ofMarch 4, 1927, ch. 509, 44 Stat. 1424, 33 U.S.C. A., secs. 901-950;33 U.S.C. A. 903, art. 1, ch. 509, sec. 3,44 Stat. 1426;Nogueira v. Railroad Co.,32 F.2d 181, affd.281 U.S. 128, 74 L.Ed. 754;Obrecht-Lynch Corp. v. Clark,30 F.2d 144;In re Eastern Transport,37 F.2d 355;Petition of the Clyde Steamship Co., 16 F.2d 930, affd.18 F.2d 1015, cert. den.275 U.S. 529, 72 L.Ed. 409;Petition of Crosby Fisheries, Inc., 31 F.2d 1004;Doughton v. Van Deaver,5 Del. Ch. 73;United States v. Lindgren,28 F.2d 728;The Z-R 3, 18 F.2d 123;The Buena Ventura, 243 F. 799;The Sea Lark, 14 F.2d 201;Hoof v. Pacific-American Fisheries,284 F. 174, affd.291 F. 306;Cassil v. U. S. E. F. Corp.,289 F. 776;United States v. A. Transport Co.,188 F. 43;The Falco, 20 F.2d 363;United States v. Nelson,100 F. 126;The Mary Elizabeth, 24 F. 397;7 Words and Phrases, First Series, p. 6374; Webster's New International Dictionary, 1915; Zell's Cyclopedia Dictionary;Meyer v. Dollar Steamship Line,43 F.2d 426;Allen v. Hallet,1 F. 473;The North America, 18 F. 339;Saylor v. Taylor,77 F. 476;Kuhlman v. W. & A. Fletcher Co.,20 F.2d 465;De Gaetano v. Merritt Chapman D. & W. Co.,203 A.D. 259, 196 N.Y.S. 573;Los Angeles v. United Dredging Co.,14 F.2d 365;Grimberg v. Admiral Oriental Steamship Line,300 F. 619;United States v. Thompson,28 F. 102;Martin v. Acker,16 F. 884;Homer Ramsdell Transportation Co. v. Companie Generale Transatlantique,63 F. 847;24 R. C. L., secs. 255, 256;Ralli v. Troop,157 U.S. 402, 39 L.Ed. 749;Atlee v. Northwest Union Packet Co.,21 Wall. 397, 22 L.Ed. 622;Cooley v. The Board of Wardens,12 How. 316, 13 L.Ed. 1003;The Oregon, 158 U.S. 194, 39 L.Ed. 948;Guy v. Donald, 157 F. 530.

Joseph T. Davis for respondent.

(1)Plaintiff's second amended petition does not state a cause of action under the Federal Employers' Liability Act, as same is made applicable to "Seamen" under the Jones Amendment, June 5, 1920, to the Merchant Marine Act, and plaintiff is not entitled to recover thereunder.Whittlesey v. Seattle,163 P. 193, L. R. A. 1917D, 1084;Bates v. Sylvester,205 Mo. 506;Troll v. Gas Light Co.,182 Mo.App. 604;Skouitchi v. Chic Cloak & Suit Co.,230 N.Y. 295, 130 N.E. 299, 15 A. L. R. 1285;The Pawnee, 205 F. 334;Sec. 33, Jones Act, sec. 688, ch. 18, U.S.C.A., Title 46,ch. 250;Sec. 713, ch. 18, U.S.C. A., Title 46;The Arina, 12 P. & D. 123;Connor v. Flora,6 Can. Exch. 132;Corbett v. Pearce, 2 K. B. L. T. Rep. (N. S.) 781, 20 T. L. R. 473;California Civil Code 1903, sec. 2049; Century Dictionary; Black's Law Dictionary;35 Cyc., pp. 1178, 1181;The M. Vandercook, 24 F. 475;The Marie, 49 F. 287;Gonzales v. U.S. Shipping Board,3 F.2d 168;The Atlantic, 53 F. 608;McGrory v. Ultima Thule A. & M. R. Co.,118 S.W. 710, 23 L. R. A. (N. S.) 303;36 Cyc. 132;Union Ins. Co. v. Dexter,52 F. 155;The Oregon, 158 U.S. 186, 39 L.Ed. 943;In re Batavier, 1 Spinks' Eccl.383;The John A. Morgan, 28 F. 896;Dorrell v. Schwerman,111 F. 209;Sec. 222,Title 46, Mason's U.S. Code.(2) The demurrer was properly sustained on the ground that plaintiff, in her petition, does not allege that the deceased was engaged in interstate commerce at the time of the alleged accident and death.Thornhill v. Davis, etc.,113 S.E. 370, 24 A. L. R. 625;Elliott v. Payne, 239 S.W. 851, 23 A. L. R. 706.

OPINION

Tipton, J.

This is an action for damages for the wrongful death of John M. Warner.The appellant's second amended petition states that the appellant, who was the administratrix and widow of John M. Warner, deceased, brought this suit in her own behalf and in behalf of her infant daughter to recover $ 50,000 damages for the death of her husband against the respondent, Edward F. Goltra, doing business under the style and name of the Goltra Barge Line.Warner was an employee of the respondent and acted as captain or master of the towboat Iowa at the time of his death on May 11, 1926.On that day the Iowa was proceeding in interstate commerce with several barges of freight down the Ohio River.Warner was on board the Iowa in the course of his employment and the scope of his duties and was engaged in interstate commerce but, as he had no license to act as a pilot on this river, the vessel was navigated by a duly licensed pilot.Appellant's petition alleges that due to the negligence of this pilot the barges towed or pushed by the Iowa became grounded.In attempting to unground them, so that the voyage might continue, the pilot so negligently handled and navigated the Iowa that he caused it to collide forcibly with the barges and the bank of the river.As a result of the collision Warner was thrown from the Iowa into the river and was drowned.This action is brought under Section 33 of the Merchant Marine Act of June 5, 1920(popularly known as the Jones Act), which gives seamen the same rights that railway employees have under the said Employers' Liability Act.

A general demurrer was filed to the appellant's second amended petition, which was sustained by the trial court.Thereafter judgment was entered in favor of the respondent.From this judgment the appellant has appealed to this court.

The appellant in her brief states that the sole issue for this court to decide may be stated as follows: "Did Congress intend to exclude the masters of vessels and their personal representatives from the remedial effects of Section 33 of the Jones Act?"

In other words the question is, does the word "seaman," as used in the Jones Amendment(June 5, 1920) to the Merchant Seamen, Chapter 18, making the "Federal Employers' Liability Act" applicable to seamen as it applies to employees of railroads, include the captain or master of a ship or vessel?

Section 33 of the Jones Act(which is Sec. 688, U.S.C. A., Title 46) is as follows:

"Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable.Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.[Mar. 4, 1915, ch. 153, sec. 20, 38

Stat. 1185;June 5, 1920, ch. 250, sec. 33, 41 Stat. 1007.]"

To determine whether or not the word "seaman" includes the word "master" it is necessary for us to determine what Congress had in mind when it enacted Section 713 of this chapter.In this sectionCongress defined certain words that are used in this chapter.It reads as follows:

"In the construction of this chapter, every person having command of any vessel belonging to any citizen of the United States shall be deemed to be the 'master' thereof; and every person (apprentices accepted) who shall be employed or engaged to serve in any capacity on board the same shall be deemed and taken to be a 'seaman;' and the term 'vessel' shall be understood to comprehend every description of vessel navigating on any sea or channel, lake or river, to which the provisions of this chapter may be applicable, and the term 'owner' shall be taken and...