Petitioners Brief — De Bardeleben Coal Co. v. Macomber

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SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1942

No. 312

DE BARDELEBEN COAL COMPANY, INC.,

Petitioner,

vs.

MRS. LOLA MACOMBER, Apmrnistratrix oF THE Estate

oF JoHN B. Macomser.

BRIEF IN SUPPORT OF FOREGOING WRIT OF

CERTIORARI.

The decree of the Court of Appeals for the Parish of

Orleans is found at R. 95 and is not yet reported.

The decree of the Supreme Court, dated April 27, 1942, is

shown at R. 123 and is reported in 8 So. (2d) 624.

The jurisdiction of this case is based upon U.S. C. A.

Title 28, Section 344 B.

Dates of Decree and of Denial of Petition for Rehearing

in the Supreme Court of Louisiana.

The date of the decree to bereviewed is April 27, 1942

(R. 123).

The petition for rehearing duly filed was denied on May

25, 1942 ((R. 135).

PEERING AT STEEL Hc EN

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Statement of Case.

For brevity, we adopt the statement made in the begin-

ning of this petition. Whatever other evidence may be

appropriate we will add under the points presented to which

it may be specially pertinent.

Specification of Errors.

1. The Court erred in holding that there was any evidence

of negligence whatsoever on the part of Edgecomble, the

deckhand, in not throwing a life-preserver, upon which a

judgment could be rendered in favor of the plaintiff.

2. The Court erred in holding that there was any evidence

showing that the failure to throw a life-preserver in any

way contributed to the death of Macomber and that, as a

matter of law, there should be a judgment or verdict for

the defendant.

3. The Court erred in applying the law to the evidence in

such a way as to hold that a jury could speculate as to

whether a life-preserver could have saved the deceased.

4. The Court erred in holding that there was sufficient

evidence upon which to base a judgment that the failure to

throw a life-preserver was the proximate cause of the

accident.

May IT PLEASE THE Court:

It is very important that this Honorable Court take juris-

diction over this case, for the reason that the Supreme

Court of La. has definitely, in the case at bar and in the case

of Fegan v. Lykes Bros. S. 8. Co., 3 So. (2d) 632, enunciated

doctrines of law contrary to the general rule of law as set

forth in the Federal Courts, under the Jones Act, and has

allowed recoveries in cases where a directed verdict, as a

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11

matter of law, would have been granted in favor of the

defendant.

This Honorable Court said in the case of Erie v. Tomp-

kins, 58 S. Ct. 817, 304 U. S. 364, that it was essential that

the law of the Federal Courts, in matters where jurisdiction

was conferred on the Federal Court by diversitive citizen-

ship, should not be different from the law of the State. The

Court said:

‘On the other hand, the mischievous results of the

doctrine had become apparent. Diversity of citizenship

jurisdiction was conferred in order to prevent appre-

hended discrimination in state courts against those not

citizens of the state. Swift v. Tyson introduced grave

discrimination by non citizens against citizens. It made

rights enjoyed under the unwritten ‘general law’ vary

according to whether enforcement was sought in the

state or in the federal court; and the privilege of select-

ing the court in which the right should be determined

was conferred upon the noncitizen. Thus, the doctrine

rendered impossible equal protection of the law. In

attempting to promote uniformity of law throughout

the United States, the doctrine had prevented uniform-

ity in the administration of the law of the state.

‘«The discrimination resulting became in practice far-

reaching. This resulted in part from the broad pro-

vince accorded to the so-called ‘general law’ as to

which federal courts exercised an independent judg-

ment. In addition to questions of purely commercial

law, ‘general law’ was held to include the obligations

under contracts entered into and to be performed within

the state, the extent to which a carrier operating within

a state may stipulate for exemption from liability for

his own negligence or that of his employee; the liability

for torts committed within the state upon persons resi-

dent or property located there, even where the ques-

tion of liability depended upon the scope of a property

right conferred hy the state; and the right to exemplary

or punitive damages. Furthermore, state decisions

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construing local deeds, mineral conveyances, and even

devises of real estate, were disregarded.

‘‘In part the discrimination resulted from the wide

range of persons held entitled to avail themselves of

the federal rule by resort to the diversity of citizenship

jurisdiction. Through this jurisdiction individual citi-

zens willing to remove from their own state and be-

come citizens of another might avail themselves of the

federal rule. And, without even change of residence,

a corporate citizen of the state could avail itself of the

federal rule by reincorporating under the laws of an-

other state, as was done in the Taxicab Case.

‘*The injustice and confusion incident to the doctrine

of Swift v. Tyson have been repeatedly urged as rea-

sons for abolishing or limiting diversity of citizenship

jurisdiction. Other legislative relief has been pro-

posed. If only a question of statutory construction

were involved, we should not be prepared to abandon a

doctrine so widely applied throughout nearly a century.

But the unconstitutionality of the course pursued has

now been made clear, and compels us to do so.’’

It is respectfully submitted that the same logical and

equitable reasons apply to the case at bar. Under the

Jones’ Act the plaintiff was given the right to select his

forum and if the law as administered by the State Court

under a United States Statute is going to be different from

the law as administered in the Federal Court, the same

injustice and discrimination will occur as was occurring

under the doctrine of Swift v. Tyson, 16 Pet. 1, 18, 10 L. Ed.

865. In view of the fact that the plaintiff has the right to

select a forum and in view of the fact that this action arises

under a law of the United States, and further, in view of

the fact that it involves questions of interstate commerce

and admiralty, the law should be uniform and a plaintiff

should not be able to recover in a State Court when he

could not recover in the Federal Court. It is upon this

basis and this basis alone that this Honorable Court is

Ba ce ee en ne ne ae

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asked to take jurisdiction of this case. A reading of the

testimony will definitely show that this case would have

never gone to the jury either on the question of negligence

or on the question of whether, if there was negligence, the

negligence was the proximate cause of the death, in a

Federal court.

It is most important that this Court take jurisdiction,

because the decision is definitely contrary to the decision

in the ease of New York Central Railroad Co. v. Grimstad,

964 Fed. 334. Furthermore, it is contrary to the decisions

of Ilarris v. Pennsylvania Railroad Co., 50 F. (2d) 866

and Kirincich v. Standard Dredging Company, 112 F.

(2d) 163. It is contrary to the general and accepted com-

mon law of negligence and proximate cause and to all of

the eases decided by the Federal Courts under the Federal

Employers’ Liability Acts.

Furthermore, this Honorable Court has held over and

over again that it would take jurisdiction where the ques-

tion involved was whether there was any substantial evi-

dence of negligence upon which a judgment could be based.

Union Pacific R. Co. v. Hucoll, 245 U. 8. 535; 38 8. Ct. 187;

N. O. and N. E. R. Railroad Co. v. Harris, 247 U.S. 367;

88 S. Ct. 535. This Court has also held that questions,

arising under the General Admiralty Law and involving

the question of whether there is sufficient evidence upon

which to base a judgment under said General Admiralty

Law, will be reviewed and are Federal questions. Cornell

Steamboat Co. v. Phoenix Construction Co., 34 8. Ct. 701;

233 U. S. 593.

In the case of Gulf M. & N. R. Co. v. Wells, 48 8. Ct. 151;

275 U. S. 455, the Court said: (Page 52)

‘‘It is unquestioned that Wells was at the time em-

ployed in interstate commerce, and that the case is

controlled by the federal Employers’ Liability Act.

Hence, if it appears from the record that under the

oe SaamreumenanceemareetaeT

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applicable principles of law as interpreted by the

Federal courts, the evidence was not sufficient, in kind

or amount, to warrant a finding that the negligence

of the engineer was the cause of the injury, the judg-

ment must be reversed. Seaboard Air Line v. Pad-

gett, 236 U. S. 668, 673, 35 S. Ct. 481, 59 L. Ed. 777;

Chicago, M. & P. Railroad v. Coogan, 271 U. S. 472,

46 S. Ct. 564, 70 L. Ed. 1041.’’

14

Another case to the same effect is Chicago & Great West-

ern R. Co. v. Rambo, 56 8. Ct. 693; 298 U. S. 99, wherein

the Court held:

‘‘On certiorari to review State Supreme Court’s

judgment, affirming judgment on jury’s verdict for

plaintiff in death action as supported by sufficient evi-

dence of defendant’s negligence, Federal Supreme

Court must examine record and determine for itself

whether as a matter of law there is enough evidence

to sustain finding of negligence.’’ (Federal Employ-

ers’ Act, 45 U.S. C. A. See. 51-59.)

Before discussing the testimony, we wish to again call

the Court’s attention to the fact that the majority opinion

of the Court of Appeals for the Parish of Orleans specifie-

ally stated that:

‘In our opinion this case, if it had been tried in the

Federal Court, would not have gone to the jury but

would have been disposed of by a directed verdict pur-

suant to the procedure prevailing in that court.”

(R. 101-102).

Attention is also called to the fact that Chief Justice O'Neill

dissented from the majority opinion of the Supreme Court

of Louisiana.

The testimony of Edgecombe (R. 19) in this case as to

what happened is as follows:

Q. What was Macomber doing at the time that this

accident happened?

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A. He was coming down from swooging the smoke-

stack, coming down the ladder.

(). What do you mean by swooging?

A. You take soap and water or sal soda and water

and wet a piece of waste and scrub the stack until the

white shows up and then you swab it up with clear

water, same procedure, and wipe the swoogy off, which

leaves you a clean surface.

Q. You say he was coming down the ladder?

A. Yes, sir.

(). Where was this ladder situated on the boat?

A. The top of it was leaning against the smokestack

and the bottom of it on top of the engine room hatch,

or it was leading from the smokestack to the deck, it

was situated right alongside.

(). You say he was coming down the ladder?

A. Yes, sir.

. What happened?

A. To the best of my knowledge the man was coming

down and as he was coming down he put his foot

through one of the rungs of the ladder, and he had

one hand, his left hand I would say, on the stay to

hold himself coming down, because I was at the bottom

of the ladder to keep it from falling, and he put his

foot through the rung of the ladder and for some

unknown cause, I don’t know what, he fell and hit the

deck on his buttocks.

Q. Did the ladder fall?

A. No, not until after I turned it loose to grab him

after he fell.

(). In other words you held on to the ladder until

he hit the deck?

A. Yes, sir.

(). About how far was this stay which was leading

from the deck to the smokestack, away from the ladder?

A. I would say not far, in fact we used it to come

up and down the ladder, used it as a guide rail like

you have alongside of a ladder.

Q. Will you state whether or not there was any jar

or motion of the vessel that happened at that time

when he put his foot through the rungs of the ladder?

PRL TG IO DEEN HE ETAL LG ON LIN TM OPM SN APRONS

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A. No, it was running just as smooth as anything,

just like glass, no rough seas or anything like that at

all.

Q. What kind of a ladder was this?

A. It was a regular ladder, it had rungs in it, it was

just a regular ladder, you know.

Q. About how tall was it?

A. I don’t know exactly, it was high enough to reach

up the smokestack, I would say it was about as high

as that book case over there; (referring to bookcase

in room where the testimony was being taken) about

ten feet.

Q. How high was he washing on the smokestack from

the deck?

A. I don’t know, I couldn’t give you the exact meas-

urement, I am a very poor — at measuring to tell you

the truth.

Q. What kind of a vessel is the Clara?

A. It has been engaged in towing cargo barges, and

it also carries cargo in its hold between Houston and

New Orleans in the freight business.

Q. Was the ladder resting on the deck or on the en-

gine room hatch?

A. It was resting on the engine room hatch.

Q. How far is this hatch from the deck, how high?

A. I would say about so high (witness indicating)

about two feet.

Q. At the time he was coming down the ladder and

put his foot through the rungs of the ladder, did the

ladder slip or move?

A. No, I had a very good secure hold on the ladder.

Q. How did you all happen to be swoogying the

smokestack ?

A. I will tell you, to begin the story Macomber and

I had been ship mates for a long time since he came

over, and we were sitting down talking when he came

on watch at noon, and we were looking at the stack

and he said ‘‘damn it is dirty’’ and I said ‘‘yes it sure

looks dirty’’ and he said ‘‘what do you say we clean

it, we swoogy it’’ and I said ‘‘the Skipper didn’t tell

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us, but we don’t have to wait’’ so we decided to go ahead

and clean it.

Q. Who selected the ladder to use?

A. We both took it out at the same time, we carried

it together, both of us.

(. Was the ladder in good shape and condition or in

bad condition?

A. It was in good shape, because I don’t believe in

using anything that will get somebody hurt.

(). How about the railing of the vessel?

A. It was in A-1 condition as far as I know, clean, no

defects or anything like that, in A-1 condition.

Q. How did he go overboard after he fell off the

ladder?

A. He hit on his buttocks and he went through the

railing and hit the water. My first thought was that

the wheel would hit him and I called out to the wheel-

house there was a man overboard, and we proceeded

at once to lower the life boat and go after him.

Q. What was done after you yelled ‘‘man over-

board’’?

A. Of course the man on watch which was A. A.

Smith, at the time, pilot, he ordered the life boat over-

board at once, and I proceeded to take the cover off and

the rest of the crew helped to put it overboard, and we

went back to the spot to watch the spot and pulled

around there, and after we didn’t find him we called

to a fisherman to come over and see what he could do,

and he went back and got some hooks on a line, there

were about 600 hooks if I am not mistaken, and we

suggested to put it across the channel where we

thought, approximately, where he was, and we dragged

for him.

(. What was done with the engines at the time you

yelled ‘‘man overboard’’?

A. They were stopped and put full astern to the best

of my knowledge, of course I was not in the wheelhouse,

but knowing boats like I do——

Objection: Mr. Dowling: I object to your testifying to

anything except what you know.

A, —the engine was put full astern.

NCR eects pet or

. . ss SPIE TY ES NAP OP R) hv

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Q. Was there any life ring on the boat?

A. Yes sir.

Q. Did you throw it out to him?

A. No, I didn’t throw it to him because he didn’t

come up, and another thing I wanted to get the engines

stopped as quickly as possible so the wheel wouldn’t

hit.

Mr. Wuertz, the engineer, was of the same opinion. He

said that the wind was blowing broadside of the boat. (R.

73) ;

A. Well, what I heard the way things went, he fell

just along side of the boat. He is supposed to fall off

the ladder and hit the deck of the boat and fell right

alongside the boat. Well, that was pretty close to

the churn of the wheel. I imagine if I had done it

myself, I would have to try to stop the engine before I

even thought of a life ring because he was in water

shallow enough and as quick as he could have got the

life ring after he got out from the churn of the wheel,

it would not have done him any good.

Captain Smith, the pilot, who holds a Master’s License

for Lakes, Bays and Sounds and the Great Lakes, and who

has been on boats for twelve years, testified as follows (R.

77):

A. No, it was not thrown overboard. In other words

there was only one man on watch, Edgecombe, and that

man was holding the ladder, and when he fell over-

board, if that man had thrown that life preserver over-

board, the space between that life preserver and where

he was standing and him going to it and getting it and

throwing it overboard the man couldn’t have reached it

anyhow, if he could have stayed on top of the water.

Q. About how fast was the Clara going at that time?

A. Between seven and nine miles an hour.

The attorney for the appellee made much of Macomber’s

being seen on top of the water. As a matter of fact, it is

°

DPER LOR RE PENI Be NS Ve RN at a mn +93

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clear from the testimony of Angelo and Smith that the man

was on top of the water for a very few seconds at the most.

Smith says (R. 76):

A. I would say approximately, it takes a man to stay

on top of the water from 25 feet to 50 feet so I couldn’t

say positively just how long.

Q. By that you mean, in other words he swam

A. He swam approximately 25 feet.

Q. How wide is that canal at that point?

A. T wouldn’t give it over 80 feet.

Q How far was he from shore?

A. About 25 or 50 feet.

The testimony of the master of the vessel, Captain An-

gelo, was as follows (R. 54):

Q. How far would he have had to swim to reach shal-

low water from where you saw him?

A. About 35 or 40 feet.

Q. Will you state whether or not there were any

beacons he could have swum to?

A. Yes, sir. They had beacons out there. Beacon

32 is where he fell overboard. He could have swum

there and grabbed onto this beacon.

Q. How far was that from where he went overboard?

A. The beacon is on the edge of the channel and the

channel there is 100 feet wide, and we were coming

down the center of the channel and the boat is 21 feet

wide itself.

Q. That is 30 or 40 feet at the most he would have to

swim?

A. At the most, yes sir.

At R. 60 he said that it was too late to throw a life

ring and then he said:

A. You haven’t time. By the time we check the boat

we couldn’t throw a life ring that far. Even when the

man first went overboard it would not do any good

unless he could throw it around his neck.

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Q. How far can you throw a life ring—the average

man?

A. I would say about 35 feet, something like that, the

furtherest I can throw.

Again on Page 61:

A. ‘‘Cap.’’, my opinion of the thing, I am telling

you what I know, what I know about life rings; I am

telling you it wouldn’t have saved the boy, if you

had seven dozen life rings.

Again on Page 61, he said:

A. In one way it would and in another way you look

at it, it would not have done the boy any good.

Q. Life rings are put on these boats to save people?

A. I don’t think this boy knew how to swim.

Q. But he was still struggling 300 feet away?

A. Yes.

Q. What was the distance of the nearest life ring

to where Edgecombe was?

A. About 7 or 8 feet. You see by the time the boy

grabbed for this boy to try to save him where he went

over the side, it took a couple of minutes to get the

life ring off the rail and get it over to him and by that

time the boat would have been a good distance away.

When you fall overboard from the stern of a boat, you

stay down there a little while before you come up with

that suction.

These were the only four witnesses that testified in the

case. The testimony also shows that Macomber had a pair

of heavy army shoes on (R. 77) and it is to be noted that

Captain Angelo says that he could not swim.

Let us compare this case with the leading Federal Court

case to show how much in conflict it is. In the case of New

York Central Railroad Company v. Grimstad, 264 Fed. 334,

there was an absence of life preservers. The Court held

that there should have been a judgment as a matter of law

7"

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unless there was testimony showing that the lack of a life

preserver would have saved the deceased. The Court said:

‘Obviously the proximate cause of the decedent’s

death was his falling into the water, and in the absence

of any testimony whatever on the point, we will as-

sume that this happened without negligence on his part

or on the part of the defendant. On the second ques-

tion, whether a life buoy would have saved the decedent

from drowning, we think the jury were left to pure con-

jecture and speculation. A jury might well conclude

that a light near an open hatch or a rail on the side

of a vessel’s deck would have prevented a person’s

falling into the hatch or into the water, in the dark.

But there is nothing whatever to show that the de-

cedent was not drowned because he did not know how

to swim, nor anything to show that, if there had been

a life buoy on board, the decedent’s wife would have

got it in time, that is, sooner than she got the small

line, or if she had, that she would have thrown it so

that her husband could have seized it, or, if she did,

that he would have seized it, or that, if he did, it would

have prevented him from drowning.’’

Clearly the decision of the Supreme Court of Louisiana

is in conflict with the doctrine.

The decision is also in conflict with the case of Harris v.

Pennsylvania Railroad Co., 50 F. (2d) 866. In that case

the court below directed a verdict for the defendant. The

Court of Appeals decided that there was sufficient evidence

to go to the jury, but let us examine the facts.

‘‘We think also that the evidence was sufficient to

justify the submission to the Jury of the issue of negli-

gence. The Jury might well have concluded that a

greater degree of diligence should have been exercised

by the mate in charge of the vessel and by the fireman

on the deck at the time. The deceased was an expert

swimmer, and, when he came to the surface of the

water, he was swimming or treading water. He called

out several times for the men on the barge to throw

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him a line. At this moment or shortly thereafter,

the mate arrived at the side of the ship in close proxim-

ity to a life ring, but made no effort to throw it into the

water because he could not see the man overboard. The

mate knew that the man had just gone overboard, and

it should have been obvious to him that the very

occasion existed for which life rings are made and used,

The fireman also, although making an effort in his ex.

citement to throw overboard a 6-inch hawser which

one man could not readily handle, failed to make any

effort to use the heaving line nearby which he could

easily have managed. It is true that the heaving line

was only about 50 feet long and when the hawser was

thrown, Harris was already 50 feet from the stern of

the vessel which was then slowly going ahead. But it

is not easy to understand, notwithstanding the testi-

mony of Sparrow to the contrary, why he could not

have reached the stern of the vessel before it passed the

man in the water. The vessel was only moving at the

pace of an ordinary pedestrian, and an able-bodied

seaman should have had no difficulty in reaching the

stern before the vessel passed the man struggling in

the water. The Jury was not obliged to accept his

opinion that he went aft as soon or as fast as he could.

‘‘These obvious facts lead us to conclude that there

was evidence of neglect on the part of the crew, and

further that it was for the Jury to decide whether the

man could have been saved if due diligence had been

used. The deceased, even when last seen, was within

200 feet of the point at which a life ring, if promptly

thrown, would have rested on the surface of the water.

He was evidently making every possible effort to save

himself. Whether in any event he would have suc-

ceeded is not a certainty, but in our view there was

enough testimony tending to show a reasonable proba-

bility of rescue, had a life ring or heaving line been

used, to justify the submission of the question to the

Jury.”’

Compare these facts to the facts in our case. In the

Harris case, Harris was an expert swimmer. In the

ae EPA teh OS Bee eT) See RE RE, PE

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Macomber case, the only evidence is that he was not. In

the Harris case, the deceased called out for the deckhand to

throw him a line. Nothing like that happened in the

Macomber case. The mate, in the Harris case, knew the

man had gone overboard and it should have been obvious

to him that this was the occasion for which life preservers

existed. The decedent was treading water within fifty

feet from the stern of the vessel, which was moving at

the pace of an ordinary pedestrian. In the Macomber case,

before the mate of the vessel knew about it, the deceased

was some three hundred yards to one-half of a mile from

the stern of the vessel. The vessel was moving between

seven and nine miles an hour. In the Harris case, the fire-

man had an opportunity to throw over a 6-inch hawser.

The deceased, when last seen, was within two hundred feet

from the point where a life ring, if promptly thrown, would

have rested on the water. The vessel was in the harbor. The

fireman picked up a hawser instead of a heaving line and

threw it into the water. The court in this case said that

it could be distinguished from the Grimstad case (supra)

because there was sufficient evidence to go to the jury under

these facts, but in the Macomber case, the evidence, instead

of pointing to the probability of rescue, all pointed away

from the probability of reseue. Edgecombe had only a mo-

ment to make up his mind as to what to do. The Chief Engi-

neer testified that he would have done the same thing that

Edgecombe did.

Now if we compare the facts of this case to the Kirincich

case, 112 (IF. (2d) 163, we again find that the decision is

in direct conflict. In the Kirincich case, the court definitely

laid down the rule of law that there must be proximate

cause. We quote from the case:

“The variable evidence raises an issue only dimly

sensed by counsel. We say only dimly because we

gather it from their citations rather than from their

MOR SERRE RUIN REI MET ISIN METI Ne FAL YN UY

BREE LI TBS SST He

24

argument. Before we reach the complexities of ‘proxi-

mate cause’, we encounter the requirement of causation

in its logical sense. This requirement finds one ex.

pression in the ‘But-for’ or ‘Would have happened

anyway’ rule. Professor Beale phrases it in this wise:

‘Where the act is the failure merely of a legal duty,

causation is established only when the doing of the act

would have prevented the result; if the result would

have happened just as it did whether the alleged actor

had done his duty or not the failure to perform the

duty was not a fac or in the result, or, in other words

did not cause it.’ Beale, The Proximate Consequences

of an Act, 33 Harvard Law Review, 633, 637. See, also,

Smith, Legal Cause in Actions of Tort, 25 Harvard

Law Review 103, 109; McLaughlin, Proximate cause,

39 Harvard Law Review 149, 153, 154; Hirschberg, The

Proximate Cause in the Legal Doctrine of the United

States and Germany, 2 Southern California Law Re-

view 207, 211, 212, 217; ef. vs. Liszt-Schmidt Lehrbuch

des Strafrechts; Max Ludwig Mueller, Die Bedeutung

des Kausalzusammenhanges.

‘‘The stock illustrations of the writer are: the child

running in front of the horses whose reins were care-

lessly out of the driver’s hands, Regina v. Dalloway,

2 Cox C. C. 273; and the runaway horses going through

an obligatory fence not strong enough to stop them

anyway, Sowles vs. Moore, 65 Vt. 322, 26 A. 629, 21

L. R. A. 723. Nearer to our own facts, Professor Beale

cites a case where the mate fell from the defendants

vessel, never arose to the surface and the ship’s boat

was negligently lashed to the deck, Ford v. Trident

Fisheries Co., 232 Mass. 400, 122 N. E.389 * * *”

What were the facts of the Kirincich case? Quoting from

the court:

‘* As the tow slowed up in the calm water between the

piers, cries for help were heard and the seaman was

seen to be in the water twenty yards from the end of

the derrick barge. At this ery deckhands threw heav-

ing lines and repeated their casts three times and came

RP Ps i A a i a

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25

once within two feet of the spot where he was strug-

gling.’’

In that case, the proof was definitely to the effect that the

deceased would have been saved if a life preserver had

been thrown, because, with the seaman crying for help and

with a heaving line coming within two feet, a life preserver

would have saved him. On the basis of this case, a directed

verdict would have been rendered for the defendant in the

Macomber case.

Other cases which are contrary to the decision of the Su-

preme Court are Russell v. Merchants & Miners Transpor-

tation Co., 19 Fed. Supp. 349, and Martin v. Lower Coast

Construction Company, 16 F. (2d) 835, cited by the Court

of Appeals for the Fifth Circuit.

In the latter case, the superintendent of a quarter boat

fell overboard as the boat was being towed to a new loca-

tion. The boat had no search-light on it and the accident

happened at night. There were no railings at the ends or

sides of the quarter boat. The court said:

‘“‘It is far from certain that Martin was alive when

the search for him was begun; but, if he was still above

the surface of the water, it is consistent with the testi-

mony that he was out of reach of assistance, as the tug

and tow were proceeding up the river and a swift cur-

rent was carrying him down stream.’’

The Supreme Court of Louisiana lays great stress upon

the current carrying the life preserver to him and overlooks

the fact that if the current was swift enough to carry a life

preserver to Macomber, it was also strong enough to carry

him away from the tug. The court goes on to say:

‘‘It is mere conjecture to say that, if a search-light

had been used, Martin’s position in the river would

have been located, or, if it had been, that he could have

been saved from drowning.”’

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26

The case of Young v. N. O. Coal & Bisso Towing Com-

pany, 8 F. (2d) 310, and The America, 35 F. (2d) 413, both

hold that the failure to use equipment does not make the

owner of the vessel liable unless there is a fair preponder-

ance of credible evidence showing that it could have been

used successfully.

The decision is also clearly contrary, insofar as proximate

cause is concerned, to the cases decided under the Federal

Employers’ Liability Act. For instance, this Honorable

Court has said in the case of Atchison T. & S. F. Ry. Co. v.

Toops, 281 U. 8. 351, 74 L. Ed. 896, 50 S. Ct. 281:

‘‘The proof of negligence alone does not entitle the

plaintiff to recovery under the Federal Employers’

Liability Act. The negligence complained of must be

the cause of the injury. The jury may not be permitted

to speculate as to its cause and the case must be with-

drawn from its consideration unless there is evidence

from which the inference may reasonably be drawn that

the injury suffered was caused by the negligent act of

the employee.’’

The Federal Courts have consistently held that recovery

for the wrongful death of an employee cannot be based

upon pure surmise or mere guess. Colonna v. Merchants

and Miners Transp. Co., 112 F. (2d) 612.

To the same effect are the cases of Black Gull, 82 F. (2d)

758; Field v. Waterman S. S. Corp., 104 F. (2d) 849.

To show how much speculation there was in this case,

the Supreme Court of Louisiana suggested that if a life

preserver had been thrown, it would have floated back to

the deceased. The evidence shows that there was a current

running toward the deceased, but it is to be remembered

that this current would also take the man away from the

vessel and the life preserver. The testimony shows that

there was a strong wind blowing across the channel. There

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is no way to prove that this life preserver, under the cir-

cumstances in this case, would have floated to within twenty-

five feet of Macomber. In fact, the probability, in view

of the wind’s blowing broadside to the tug, the wake that

the tug would make, the suction caused by the churn of the

wheel, is that the life preserver would have floated much

farther away than shallow water was from Macomber.

And finally, before closing, we wish to call the attention

of the Court to the fact that the majority opinion of the

court lays great stress upon the testimony of Smith, Edge-

combe and Wuertz taken before the United States Local

Inspectors on February 11, 1939. The record says that the

jury could disbelieve the witnesses, although not impeached

during the actual trial, on the basis of statements they made

before the said United States Local Inspectors. The record

will show conclusively that the lower court excluded this evi-

dence upon proper objection, on the basis of the case of

Fegan v. Lykes Bros. S. S. Co., 199 So. 635, 196 La. 450,

and that at no time did the attorney for the plaintiff in

either of the appellate courts argue that the exclusion was

improper. The court, however, for some reason, proceeded

to discuss this testimony and use it in reaching its decision

as if it were in the record. There can be no doubt that

this is a material error of law, as the testimony taken be-

fore the United States Local Inspectors is purely hearsay

and cannot be used except for the purpose of impeaching

witnesses by asking them if they had not made prior incon-

sistent statements. This testimony would have never been

considered if the case had been tried in a United States

District Court, and it was a violation of the laws of evidence

to consider this without passing on the submissibility, and

is ground for a reversal by itself.

It is respectfully submitted that the opinion of the Court

of Appeals for the Parish of Orleans is correct and that

the opinion of the Louisiana Supreme Court should be

a FORA ESL RES REI PLATE RS AIRE SM oR HIE 2 RAT NN RN NE RIESE 8

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set aside. Otherwise, recovery will be had in the Louisiana

courts, where there would have been a directed verdict.

as a matter of law in a Federal court, in favor of the de-

fendant. It is respectfully submitted that the Supreme

Court of Louisiana has enunciated a doctrine of law which, |

as a matter of fact, does away with the requirement that |

the plaintiff must prove negligence and that the negligence.

was the proximate cause of the accident, in order to re-

cover under the Employers’ Liability Act and the Jones

Act.

Respectfully submitted,

Ricuarp B. Montcomery,

Attorney for Petitioner.

(1558)

oT NEERING RTE? ALR MAEM IESE