Petition for Writ of Certiorari — Chicot Land Co. v. Kelly

Supreme Court brief1974

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In the Supreme Court of the United States

OCTOBER TERM. 1973

CHICOT LAND COMPANY. INC.,

Petitioner,

VS.

ALLEN EUGENE KELLY, SR. and

GARLAND WAYNE KELLY,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JAMES L. ROBERTSON

LAWRENCE D. WADE

Ciaupe L. Stuart, III

923 Washington Avenue

Greenville, Mississippi 38701

Attorneys for Chicot Land Com-

pany, Inc., Petitioner

FE. LL. Mewpenxarr. Inc.. 926 Cherry street. Kansas Citv. Mo. 64108, 421-3030

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ~.-....-......:-2.---.---------

OPINIONS BELOW ........

JURISDICTION

. QUESTIONS PRESENTS? ...............

. STATEMENT OF THE CASE

A. Summary of the Facts

B. Proceedings Below

REASONS WHY CERTIORARI SHOULD BE

GRANTED

A. General Context and Background

B. The Importance and Necessity for a Prompt,

Definitive Resolution of the Questions Pre-

i RRR oR aT PI ERROR SAB ete ee RRR eee ONT

C. The Court of Appeals Has Decided an Important

Question of Federal Jurisdiction in a Way in

Conflict with the Applicable Decision of This

RRS AL RE ARE aT eke ete Sa UREA

[| oe ee

2. An Executive Jet-Controlled Approach to

Traditional Concepts of the Role of Ad-

miralty Law Fails to Support Admiralty Ju-

risdiction in These Cases .....-_.......-....-----------+----

a. The “Conceptual Expertise” Role of Ad-

I RN eae ecasetrnicosenion

b. The Fifth Circuit Has Confused the Com-

merce Clause with Admiralty Jurisdic-

tion

3. Executive Jet Holds That Admiralty Tort Ju-

risdiction Will Not Be Expanded to Cases

Where No Federal Maritime Interest in Uni-

foray of Lae Sats 2...

et re SII es

b. The Federal Maritime Interests ................

Executive Jet Has Left Unsettled an Important

Question of Federal Jurisdiction Which Has Led

to a Direct Conflict Between the Circuits ........

1. The Fifth Circuit vs. the Fourth Circuit ........

2. The Ninth Circuit The United States Dis-

trict Court for the District of Montana ........

3. The Second Circuit The United States Dis-

trict Court for the Western District of New

I Ba

4. The Eighth Circuit/ The United States Dis-

trict Court for the Eastern District of Arkan-

5. This Court Should Decide Whether a Poten-

tial or an Actual Effect on Maritime Com-

merce Is Necessary to Support Jurisdiction

The Factual Context of Executive Jet Has Led

to Uncertainty Regarding the Applicability of

Pre-Executive Jet, Non-Aviation, Admiraity

Tort Jurisdiction Precedents, Concerning Which

the Circuits Have Been in Sharp Conflict ........

1. Some Courts Have Restricted Executive Jet

RN RON Soca tpesecuneanesnanrerettes

2. “Strict Locality” in Non-Aviation Tort Cases

Has Not Been Finally Interred ....................

Be ERAS acd ne IM _

(als. “REA REREAD en te BREE IE La SET

III

APPENDICES—

APPENDIX A—Opinion of the United States Court

of Appeals for the Fifth Circuit, rendered August

28, 1973, reported at 485 F.2d 520 2... Al

APPENDIX B—Opinion of the United States Court

of Appeals for the Fifth Circuit denying rehearing,

rendered November 19, 1973 __............... Al6

APPENDIX C—Opinion of the United States District

Court for the Northern District of Mississippi on

the issues of jurisdiction, laches, and liability, ren-

ee Gr EN Be, te or cee ee Al7

APPENDIX D—Opinion of the United States Dis-

trict Court for the Northern District of Mississippi

on the issue of damages, rendered June 27, 1972,

reported at 346 F. Supp. 20 (N.D. Miss. 1972) ........ A33

Judgment (GC 71-5-S and GC 71-19-S) 0000... A39

Tem, CO Tan A40

Table of Authorities

CASES:

Adams v. Montana Power Co.. 354 F. Supp. 1111 (D.

Mont. 1973), appeal docketed, No. 73-1371, 9th Cir.,

We rae Cen nae 6, 18, 20

Askew v. American Waterways Operators, 411 U.S. 325

I rca I ee a 23

Berwind-White Coal Mining Co. v. City of New York,

con eae ae Cae oe ee) on 7,23

Boudoin v. Lykes Bros. S.S. Co., 348 U.S. 336 (1955) _ 12,13

Campbell v. Hackfield & Co., 125 F. 696 (9th Cir. 1903) 23

Chapman v. City of Grosse Pointe Farms, 385 F.2d

Davis v. City of Jacksonville Beach, 251 F. Supp. 327

Ce Ts ID kisincsniseceensseneisn a oseponsainsoiinctnatetiotoena 11,21

Executive Jet Aviation, Inc. v. City of Cleveland, 409

ik Be MS: | eee aA eet Pon eco en ee 5-15, 17-24

Fireman's Fund American Ins. Co. v. Boston Harbor

Marina, Inc., 406 F.2d 917 (1st Cir. 1969) 0. 23

Free v. Sample, 324 F. Supp. 1362 (W.D. Ark. 1971) ....7, 21

Gebhard v. S.S. Hawaiian Legislator, 425 F.2d 1303 (9th

| IRL ed Ae MR SL Tec RS OAORE CeO RO RE 23

Gowdy v. United States, 412 F.2d 525 (6th Cir. 1969) .... 24

Green v. Ross, 481 F.2d 102 (Sth Cir. 1973) -.0.0000..... 18

Hark v. Antilles Airboats, Inc., 355 F. Supp. 683 (D. V.I.

TER Cixi cdsu anon aakai red easieaiginecainenstemsn abt nbigetis 22

Healy v. Ratta, 292 U.S. 263 (1934) -..02.. eee: 14

Higginbotham v. Mobil Oil Corp., 357 F. Supp. 1164

NEE NN NED. SacniicSscicdcodnasinugecociaiotaatelestodbiutenkarmeanenees 22

Howser, In Re, 227 F. Supp. 81 (W.D. N.C. 1964) ........ 7

Johnson v. Wurthman, 227 F. Supp. 135 (D. Ore. 1964) 7

Kelly v. Smith, 346 F. Supp. 20 (N.D. Miss. 1972), aff'd

458 F.2d 520 (5th Cir. 1973) .................. 1, 2, 10, 11, 13, 16

King v. Testerman, 214 F. Supp. 335 (E.D. Tenn.

BS itn amsisnaaedimmmnmatacen 11, 18, 21

Leather’s Best, Inc. v. S.S. Marmaclynx, 451 F.2d 800

CE MED esses cicada sideanpecsiinsinlninaeatianeindasinaniccemadsiatns 23

Luna v. Star of India, 356 F. Supp. 59 (S.D. Calif.

TPM: eccinstennessinshiepcaibiaieinsclaapesi Dagens tededbdantiinalsnaiiieniisibiad 6, 23

McGuire v. City of New York, 192 F. Supp. 866 (S.D.

Es TEN eecisscianianucsteesiee an telasanemaaaahel 23

Madole v. Johnson, 241 F. Supp. 379 (W.D. La. 1965) ..7, 21

Moragne v. States Marine Lines, 398 U.S. 375 (1970) .... 16

Peytavin v. Government Employees Ins. Co., 453 F.2d

oe ae: | en ene 18

Plymouth, The, 70 U.S. (3 Wall.) 20 (1866) ................ 9

Rubin v. Power Authority of New York, 356 F. Supp.

Soe Ce EPP, eee ea 6, 20

St. Hilaire Moye v. Henderson, 364 F. anak 1286 (E.D.

Ark. 1973) (appeal pending) 2c. sccscsecccecceee: 6,18

Shogry v. Lewis, 225 F. Supp. 741 (W.D. Pa. 1964) ... 7

Teachy v. United States, 363 F. Supp. 1197 (M.D. Fla.

BREE ceca aceite ae ee 22

United States v. Matson Nav. Co., 201 F.2d 610 (9th Cir.

a EERE RAL I AERP RA RN IR 7, 23

Victory Carriers, Inc. v. Law, 404 U.S. 202 (1971) 14, 23

Watson v. D S’A Idaho, 359 F. Supp. 496 (E.D. Pa.

OED cnt aiduseminaen eae Oe 6, 22-23

Watz v. Zapata Off-Shore Co.. 431 F.2d 100 (5th Cir.

DP tiaiaca tease ee ae ee ee 17, 18

STATUTES:

Oe Shen SOULE coc ee 2

TF Tre Se oe ee 16

OD Se NE ree cg ee ene 16

Oe Ae I a ee en eee eee 16

46 U.S.C. $1486 (e)

OTHER AUTHORITIES:

Annot., 99 L.Ed. 359 (1954) ono. coccccccecceccccccscssssececoscosees 13

Auten, Federal and State Regulations of Boating, 37

Temple L.Q. 446 (1964) occ. 7

Note, 44 Miss. L.J. 1013 (1973) .ooeeecccccccccccccccccoceccecoecces.. 20

Stolz, Pleasure Boating and Admiralty, 51 Cal. L. Rev.

singh ce, Ee ae ee RRL NORIO See AOE CNIS ESN 7

U. S. Coast Guard, Boating Statistics, 7 (1971) 7

Waite, Pleasure Boating in a Federal Union. 10 Buf-

foto L. Rev. 437 (1081) 7

In the Supreme Court of the United States

OCTOBER TERM, 1973

CHICOT LAND COMPANY, INC.,

Petitioner,

VS.

ALLEN EUGENE KELLY, SR. and

GARLAND WAYNE KELLY,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Chicot Land Company, Inc., Petitioner, respectfully

prays that a writ of certiorari issue to review the judgment

of the United States Court of Appeals for the Fifth Circuit

entered in these proceedings on August 28, 1973, on which

rehearing was denied on November 19, 1973.

I. OPINIONS BELOW

The opinion of the Court of Appeals, rendered August

28, 1973, reported at 485 F.2d 520 (5th Cir. 1973), is at-

tached hereto as Appendix “A”.

The opinion of the Court cf Appeals denying rehear-

ing, rendered November 19, 1973, is attached hereto as

Appendix “B”.

The opinion of the District Court on the issues of

jurisdiction, laches, and liability, not reported, rendered on

April 13, 1972, is attached hereto as Appendix “C”.

The opinion of the District Court on the issue of dam-

ages rendered June 27, 1972, reported at 346 F. Supp. 20

(N.D. Miss. 1972), is attached hereto as Appendix “D”.

II. JURISDICTION

The judgment of the Court of Appeals was entered on

August 28, 1973. Timely petitions for rehearing and, or for

rehearing en banc were filed and said petitions were denied

on November 19, 1973. This petition for a writ of certiorari

has been filed within ninety (90) days of that date. Juris-

diction is invoked under 28 U.S.C. $1254(1).

III. QUESTIONS PRESENTED

(1) Whether or not admiralty tort jurisdiction en-

compasses civil actions for assault and battery arising out

of a shooting incident between members of a private hunt-

ing club. standing on drv land, and fleeing deer poachers

in an outboard motorboat on navigable waters in a chute

leading out to the Mississippi River?’

1. The Court of Appeals correctly noted that:

The issue of jurisdiction is crucial. If jurisdiction was sus-

tainable only on diversity grounds the Kellys’ Erie-bound

claim was barred by the Mississippi one-year statute of

limitations for assault and battery cases. 485 F.2d at 523.

The two other states potentially involved, Arkansas and Louisiana,

likewise have one year limitations periods for assault and battery

cases. See footnote 14, infra.

(2) Whether or not a tort accruing on navigable

waters, having no actual effect on maritime commerce and

activities, but rather having only a remote or potential

effect thereon, lies within admiralty jurisdiction?

(3) Whether or not, and or to what extent, tort ac-

tions involving pleasure craft and other recreational ves-

sels, accruing on navigable waters, but having no signifi-

cant relationship to maritime commerce or traditional

maritime activities, lie within admiralty jurisdiction?

IV. STATEMENT OF THE CASE

A. Summary of the Facts

On the afternoon of November 27, 1965, Allen Eugene

Kelly, Sr. and his three sons, Allen Eugene Kelly, Jr., Gar-

land Wayne Kelly, and Joseph Dale Kelly, poachers and

trespassers all, went to Woodstock Island, Mississippi, to

hunt.* Having entered the island without authority, the

Kellys’ presence was detected by J. C. Smith and Billie H.

Bledsoe, the caretaker and a member, respectively, of a pri-

vate hunting club which held an exclusive license to the

hunting rights on Woodstock. As they reached a point near

the eastern edge of Woodstock Island, Smith and Bledsoe

noticed the Kellys launching their 15 foot outboard motor-

boat in a navigable chute leading out to the Mississippi

River.

In a few moments, the Kellys were in their boat in the

water fleeing southward making their exit from Woodstock

Island. J.C. Smith, standing on the high bank, fired a shot

toward the boat, indicating that he wanted the Kellys to

stop. Then he motioned for the Kellys to come back into

2. The area in question is a chute lying on the extreme

western edge of Mile 539, Lower Mississippi River.

ON BEAN MG. 3 Dee wha |

the land. When the Kellys did nc‘ stop, Smith fired

another shot into the water next to the boat. Allen Eugene

Kelly, Sr. stood up and indicated to Smith and Bledsoe

that they, the Kellys, were not going to come back in to the

bank. The Kellys then proceeded full ahead and began

to leave the premises. Smith and Bledsoe fired again. One

of the shots hit Allen Eugene Kelly, Sr. in the right ankle.

Allen Eugene Kelly, Jr. returned the fire. Garland

Wayne Kelly was then hit by gunfire from Smith and

Bledsoe. Thereafter, the firing ceased and the Kellys pro-

ceeded across the Mississippi River to Warfield Point. Mis-

sissippi, and from there they were taken to the hospital.

B. Proceedings Below

In early 1971, more than five years after the shooting

incident took place, the Kellys filed three suits in the

United States District Court for the Northern District of

Mississippi, naming J. C. Smith, Billie H. Bledsoe, Chicot

Land Company, Inc., Anderson-Tully Company. and the

members of the Woodstock Hunting Club as Defendants.

The initial complaint alleged diversity of citizenship juris-

diction. A month later, two new complaints were filed,

asserting admiralty jurisdiction.* All complaints recited

3. On February 3, 1971, Allen Eugene Kelly. Sr. filed Civil

Action No. GC 71-5-S in the District Court naming J. C. Smith,

Billie H. Bledsoe, Chicot Land Company, Inc. and Anderson-Tully

Company as Defendants. The basis for jurisdiction was diversity

of citizenship.

On March 3, 1971, Garland Wayne Kelly filed in the same

court Civil Action No. GC 71-18-S, naming, as Defendants, J. C.

Smith, Billie H. Bledsoe, Chicot Land Company, Inc., Anderson-

Tully Company, and the members of the Woodstock Hunting

club, an unincorporated association. Two jurisdictional bases were

asserted: diversity of citizenship and admiralty.

On March 3, 1971, Allen Eugene Kelly, Sr., filed in the same

court Civil Action No. GC 71-19-S, naming as Defendants. J. C.

Smith, Billie H. Bledsoe, Chicot Land Company, Inc., Anderson-

Tully Company and the members of the Woodstock Hunting Club.

Plaintiff alleged admiralty jurisdiction.

traditional common law assault and battery causes of

action.

Petitioner, Chicot Land Company, Inc., answered all

three Complaints, affirmatively alleging, inter alia, (1)

that, insofar as these actions were predicated upon diver-

sity of citizenship jurisdiction, they were barred by the one

year Mississippi statute of limitations for assault and bat-

tery cases, and (2) that these cases did not fall within

admiralty jurisdiction.

On April 10, 1972, these consolidated cases went to

trial before United States District Judge Orma R. Smith

sitting in admiralty without a jury. At the conclusion of

the trial, judgment was entered in favor of Plaintiff, Allen

Eugene Kelly, Sr. and against the Defendants J. C. Smith,

Billie H. Bledsoe and Chicot Land Company, Inc. in the

amount of $69,772.40. Further, judgment was entered in

favor of the Plaintiff Garland Wayne Kelly and against the

Defendants J. C. Smith and Chicot Land Company, Inc. in

the amount of $2,593.96. In all cases. judgment was en-

tered in favor of Anderson-Tully Company and that De-

fendant was finally dismissed.

Thereafter, Petitioner. Chicot Land Company, Inc.,

perfected its appeal to the United States Court of Appeals

for the Fifth Circuit. On August 28, 1973 the District Court

judgments were affirmed, one judge dissenting.

The panel majority found that these civil actions were

cognizable within admiralty tort jurisdiction. The dissent-

ing judge would have held that these cases bore no signifi-

cant relationship to traditional maritime activity and, there-

fore, lay outside the scope of admiralty tort jurisdiction as

defined in Executive Jet Aviation, Inc. v. City of Cleve-

land, 409 U.S. 249 (1972).

ma |

ODLTREE DIMER

V. REASONS WHY CERTIORARI SHOULD

BE GRANTED

A. General Context and Background

These cases present the questions, whether or not,

and/or to what extent, the mere fact that litigants are in

a non-commercial, pleasure craft on navigable waters at

the time a tort action accrues is sufficient to confer admi-

ralty jurisdiction. These questions are presented against

the background of

(1) the failure of the Court of Appeals to follow the

definitive decision of this Court in Executive Jet, an ad-

miralty tort jurisdiction case having an aviation context;

(2) a head-on conflict between the Fourth Circuit in

Crosson v. Vance, 484 F.2d 840 (4th Cir. 1973) and Fifth

Circuit in the cases at bar concerning the application of

Executive Jet in a non-commercial, pleasure craft context;

(3) widely varying post-Executive Jet district court

decisions within the Second, Eighth and Ninth Circuits,

pregnant with potential for further inter-circuit conflict;*

(4) post-Executive-Jet district court decisions which

suggest that the admiralty jurisdictional test in Executive

Jet has no application to non-aviation cases;°

(5) a broad and pervasive pre-Executive Jet conflict

among the circuits regarding the proper definition of ad-

4. Second Circuit: Rubin v. Power Authority of New York,

356 F. Supp. 1169 (W.D. N.Y. 1973); Eighth Circuit: St. Hilaire

Moye v. Henderson, 364 F. Supp. 1286 (E.D. Ark. 1973) (appeal

pending): Ninth Circuit: Adams v. Montana Power Co., 354 F.

Supp. 1111 (D. Mont. 1973), appeal docketed, No. 73-1371, 9th Cir.

July 25, 1973. These cases are discussed at pages 20-21, infra.

5. Watson v. D/S/A Idaho, 359 F. Supp. 496, 499 (E.D. Pa.

1973); Luna v. Star of India, 356 F. Supp. 59 (S.D. Calif. 1973).

ee eae |

miralty tort jurisdiction in a non-aviation context, which

conflict by reason of the factual setting in which it arose,

Executive Jet has failed to inter;"

(6) a substantial body of pre-Executive Jet pleasure

craft litigation in which the jurisdictional issues have been

considered and differently resolved;’

(7) a substantial body of scholarly commentary re-

garding the jurisdictional standards applicable in pleasure

boat accident litigation.*

B. The Importance and Necessity for a Prompt, De-

finitive Resolution of the Questions Presented

Recent Coast Guard figures show that over 5,500,000

small boats are now being operated on the waters of the

United States. In 1971, there were almost 4000 boating

accidents, resulting in over 1500 fatalities. These figures

can only be expected to increase, particularly in the Fifth

6. Compare cases cited in footnote 6 in Executive Jet, 409

U.S. at 256-257, with United States v. Matson Nar. Co., 201 F.2d

610, 613 (9th Cir. 1953); and Berwind-White Coal Mining Co. v.

City of New York, 135 F.2d 443, 446 (2d Cir. 1943).

7. Compare Madole v. Johnson, 241 F. Supp. 379 (W.D. La.

1965), and Free v. Sample, 324 F. Supp. 1362 (W.D. Ark. 1971),

with Shogry v. Lewis, 225 F. Supp. 741 (W.D. Pa. 1964), and

Johnson v. Wurthman, 227 F. Supp. 135 (D. Ore. 1964), and In Re

Howser, 227 F. Supp. 81 (W.D. N.C. 1964).

8. See, Stolz, Pleasure Boating and Admiralty. 51 Cal. L.

Rev. 661 (1963); Waite, Pleasure Boating in a Federal Union, 10

Buffalo L. Rev. 427 (1961); Auten, Federal and State Regulations

of Boating, 37 Temple L.Q. 446 (1964).

9. The United States Coast Guard is required to keep these

Statistics, 46 U.S.C. §1486 (e). The Coast Guard has reported

that:

There were 3909 boating accidents reported for calendar year

1971 involving some 4915 vessels. 1257 of these vessels were

involved in 1219 boating accidents which resulted in 1582

fatalities. 757 vessels were involved in 574 accidents resulting

in 897 personal injuries. And, 2901 vessels were involved in

2116 accidents accounting for $9,022,000 in property damage.

U.S. Coast Guard, Boating Statistics (1971) 7.

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Circuit. It is likely that the vast majority of these injuries

and deaths which result in lawsuits will wend their way

into the courts, which, without a specific jurisdictional

yardstick, predictably will reach varying results. More

realistically, if the questions presented here are not resolved

by this Court, these suits will be brought in the federal

courts of the Fifth and probably the Eighth Circuits but in

the state courts of the Fourth and probably the Second and

Ninth Circuits.

But knowing which courthouse to file his suit in is only

a small part of the dilemma now facing the motorboat acci-

dent litigant. Executive Jet correctly notes that admiralty

jurisdiction carries with it “the full panoply of the sub-

stantive admiralty law.” 409 U.S. at 255. That there are

major differences between substantive admiralty tort law

and state tort law may be illustrated by the following,

necessarily abbreviated, comparative table:

State and

Common Law Admiralty Law

Effect of Plaintiff's

negligence

Status of Visitors

Defendant’s violation

of statutory duty

of care

Collisions where

both parties

at fault

Damages in

wrongful death

cases

Contributory negligence

a bar in many states

Trespassers, licensees in-

vitees, and other

fixed categories

Plaintiff has burden of

proving violation

proximately caused

his damages

Damages apportioned

according to degrees

of fault

General damages;

economic value of

life; etc.

Comparative

negligence rule

Reasonable care

standard for all

classes of visitors

Defendant has burden

of proving violation

could not have caused

the plaintiff's damages

Damages divided equally

“crespective of degrees

of fault

Damages limited to

Dependents pecuniary

loss

Several more practical, but often extremely important,

distinctions between state and admiralty practice are:

State practice Admiralty practice

Jury trials No jury trials

Statute of limitations Laches ‘

In personam suits only In rem actions allowed

Discovery often Liberal discovery

restricted

Third party practice Liberal third

often restricted party practice

The list could be made much longer. Suffice it to say that

the answer to the questions presented here will have an

enormous impact on thousands of potential litigants.

That the jurisdictional inquiry is truly outcome deter-

minative is made starkly apparent by the case at bar,

where, without admiralty jurisdiction, Plaintiffs’ suits

would have been barred by the statute of limitations.

Against this background, Petitioner respectfully sub-

mits that the questions presented are ripe for consideration

and definitive resolution by this Court.

C. The Court of Appeals Has Decided an Important

Question of Federal Jurisdiction in a Way in Con-

flict with the Applicable Decision of This Court

1. General Statement

In Executive Jet, this Court held that. as a prerequisite

to the existence of admiralty tort jurisdiction, “the wrong”

must “bear a significant relationship to traditional mari-

time activity”. 409 U.S. at 268. Executive Jet expressly

rejected the traditional “strict locality” test for admiralty

tort jurisdiction, which had evolved through The Plymouth,

70 U.S. (3 Wall.) 20, 35-36 (1866) and other cases.

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More specifically, Executive Jet rejects the notion that

all accidents occurring on navigable waters are subjects of

admiralty jurisdiction. Nevertheless, the Fifth Circuit an-

nounced its own four-pronged test requiring a case by case

analysis of

[1] the functions and roles of the parties; [2] the

types of vehicles and instrumentalities involved; [3]

the causation and the type of injury; and [4] tradi-

tional concepts of the role of admiralty law. 485 F.2d

at 525-526.

That test brings within admiralty jurisdiction every pleas-

ure boat accident case occurring on navigable waters re-

gardless of the nature of the wrong or its relation to tradi-

tional maritime activities. An analysis of the functions

and roles of the parties,’ suggested below. will always

produce a “pilot”. Consideration of ‘the types and vehicles

and instrumentalities involved” will always yield a “ves-

sel”. A study of “the causation and the type of injury” will

always give rise to a potential interference with maritime

commerce. “Strict locality”, in the Fifth Circuit, at least,

has been replaced by “locality plus a boat”.

In the opinion below, the Fifth Circuit holds that

the tortious conduct of Smith and Bledsoe “presents suf-

ficient danger to maritime commerce” to invoke admiralty

10. An analysis of the functions and roles of the parties in

this case wholly fails to support a finding of admiralty jurisdic-

tion. Here Plaintiffs (a) are not seamen, either Jones Act or

Sieracki variety, (b) are nct passengers for fare, (c) are not

persons who might have reasonably anticipated that their rights

and remedies would be governed by maritime law, and (e) are

not persons deserving of the protection and shelter traditionally

afforded the wards of the admiralty. Defendants (a) are not

seamen, (b) are not owners or operators of vessels, (c) were

standing on dry land, (d) are not persons who might have rea-

sonably expected their liabilities to be judged by maritime law.

Finally, there is no vessel in these cases which may be subjected to

in rem jurisdiction.

aleriiaie _)

tort jurisdiction. 485 F.2d at 526. The Fifth Circuit has

thus held that a potential interference with maritime com-

merce is sufficient to support jurisdiction. In Executive

Jet, however, the Court held that actual interference was

required. Herein lies the fundamental problem with the

opinion below. In Executive Jet the aircraft coming to rest

in Lake Erie certainly had a potential effect on commerce.

But because of the absence of an actual effect on maritime

commerce, this Court found no admiralty jurisdiction.

This Court’s rejection of the potential effect theory was

further expressed by the disapproval of a surfboard acci-

dent case, Davis v. City of Jacksonville Beach," 251 F. Supp.

327 (M.D. Fla. 1965) in footnote 5 in Executive Jet, 409

USS. at 256.

Executive Jet likewise disapproved the jurisdictional

holding in King v. Testerman, 214 F. Supp. 335 (E.D. Tenn.

1963). In King, plaintiff, while water skiing, was injured

as a result of the negligence of the operator of the boat by

which plaintiff was being towed. The district court found

admiralty jurisdiction. Executive Jet's rejection of King

and the opinion of the panel majority below cannot logi-

cally co-exist.

Executive Jet holds that it is the wrong, not the

parties, not the vessel. which must bear a significant rela-

tionship to traditional maritime activities. The Fifth Cir-

cuit’s “causation and type of injuries” test, 485 F.2d at 525-

526, is the only one of the four tests employed below, which

11. In upholding admiralty jurisdiction, the Davis Court had

reasoned that

Of course, the present accident produced no direct or indirect

influence on shipping and commerce. But a surfboard, by

its very nature, operates almost exclusively on the high seas

and navigable waters, and, just like a small canoe or raft,

potentially can interfere with trade and commerce. 251 F.

Supp. at 328.

PRET PLE PLN LL OR kV LO WARE IO SN RE Re

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comes close to compliance with the commands of Executive

Jet. The causes of this accident, from the general] to the

specific, were (a) a dispute over hunting rights, (b) an

attempt to apprehend fleeing poachers and trespassers and

were gunshot wounds—no different than if the Kellys had

been shot on dry land. Where is the significant relation-

ship with traditional maritime activity?

2. An Executive Jet-Controlled Approach to Tra-

ditional Concepts of the Role of Admiralty Law

Fails to Support Admiralty Jurisdiction in

These Cases

a. The “Conceptual Expertise’? Role of Ad-

miralty Law

Executive Jet places major emphasis, not on the mere

furnishing of a remedy to one being transported in a boat,

but on the “conceptual expertise of the [remedial] law to

be applied.” 409 U.S. at 269. Admiralty law evolved

gradually over the centuries to handle specific and

uniquely maritime problems, e.g., collisions, navigational

rules, seaworthiness, maintenance and cure, liens, general

average, captures and prizes, limitation of liability, cargo

damage, claims for salvage. True enough, each provided

a remedy, as does all law, but a peculiar maritime remedy.

These Plaintiffs, by way of contrast, were afforded the

same substantive remedy any landlocked assaultee would

have had. The district court here adjudicated fault, causa-

tion, respondeat superior and damages according to com-

mon law principles.

A genuine maritime assault and battery case differs

significantly from the localized common law actions in-

volved here. In Boudoin v. Lykes Bros. S.S. Co., 348 U.S.

336 (1955), this Court recognized what has subsequently

become the dominant theory of maritime assault and bat-

teries, viz., unseaworthiness of the vessel created by em-

ploying “a seaman with a proclivity for assaulting people.”

348 U.S. at 339." This species of liability without fault as

applied to intentional torts demands “the conceptual ex-

pertise of law” so peculiarly maritime as suggested in

Executive Jet. This conceptual expertise, however, is

Wholly superfluous and irrelevant in common law assault

and battery actions, such as those here before the Court.

b. The Fifth Circuit Has Confused the Com-

merce Clause with Admiralty Jurisdiction

A further error in the panel majority’s analysis of the

role of admiralty law derives from its statement that

the federal interest in protecting navigation on the

Mississippi River overrides any considerations of fed-

eral-state comity or conflicts of interest. 485 F.2d at

526.

Here the panel has confused the power of the Congress to

regulate interstate commerce with the power of the federal

judiciary to adjudicate matters maritime.

Executive Jet speaks instructively to this point:

It may be, as the petitioners argue, that aviation tort

cases should be governed by uniform substantive and

procedural laws, and that such actions should be heard

in the federal courts so as to avoid divergent results

and duplicitous litigation in multi-party cases. But for

this Court to uphold federal admiralty jurisdiction in

a few wholly fortuitous aircraft cases would be a most

12. Or, as observed by commentators: “But apart from such

common-law principles, a seaman may be entitled to recover in

this situation if he can establish that the assault resulted from

the shipowner’s breach of the warranty of seaworthiness.” Annot.,

99 L.Ed. 359, 360-61 (1954).

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quixotic way of approaching that goal. If federal uni-

formity is the desired goal with respect to claims

arising from aviation accidents, Congress is free under

the Commerce Clause to enact legislation applicable to

all such accidents, whether occurring on land or water,

and adapted to the specific characteristics of air com-

merce. 409 U.S. at 273-274.

Federal courts sitting in admiralty may not hear and

adjudicate tort actions in which the wrong bears no signifi-

cant relationship to traditional maritime activity. The

Fifth Circuit to the contrary notwithstanding, Executive

Jet holds that no matter how great or important the na-

tional interests here may be, they may not serve to extend

the admiralty jurisdiction of the federal courts beyond that

granted by the Constitution.

3. Executive Jet Holds That Admiralty Tort Ju-

risdiction Will Not Be Expanded to Cases Where

No Federal Maritime Interest in Uniformity of

Law Exists

The exercise of admiralty jurisdiction over localized,

common law assault and battery actions serves no sub-

stantial federal maritime interests and frustrates legitimate

State interests. In Executive Jet this Court emphasized

that Ohio courts were competent to exercise jurisdiction

over the tort where maritime interests would not be af-

fected. 409 U.S. at 273. The fact that admiralty juris-

diction does not invade powers reserved the states was

noted in Executive Jet:

“Just last Term, in Victory Carriers, Inc. vy. Law, 404

U.S. at 212, we observed that in determining whether

to expand admiralty jurisdiction, ‘we should proceed

with caution... .’ Quoting from Healy v. Ratta, 292

U.S. 263, 270 (1934), we stated:

The power reserved to the states, under the Consti-

tution, to provide for the determination of contro-

Versies in their courts may be restricted only by the

action of Congress in conformity to the judiciary sec-

tions of the Constitution .... Due regard for the

rightful independence of state governments, which

should actuate federal courts, requires that they

scrupulously confine their own jurisdiction to the

precise limits which [a federal] statute has defined.”

409 U.S. at 272-273.

Executive Jet, therefore, has weighed and evaluated

the state and federal maritime interests in an aviation con-

text, 409 U.S. at 253-261, and the answer given is equally

applicable in the context of common law torts involving

small, non-commercial boats.

a. The State Interests

The interests of the State of Mississippi in this matter

are evidenced by the criminal prosecutions undertaken in

Mississippi Courts." Likewise, the State of Mississippi has

a demonstrable interest in providing a civil remedy for its

citizens, shot and wounded under circumstances involving

Mississippi soil and water. Mississippi’s interest in re-

quiring that such actions be brought within one year is

likewise paramount. In fact, in no civil jurisdiction,

state or federal, may an action for the tort of assault

and battery be brought more than three years after the

13. On June 10, 1966, the Washington County, Mississippi

Grand Jury indicted Smith and Bledsoe on a charge of assault and

battery with a firearm, a felony. Later, on January 23, 1968

Smith and Bledsoe were brought to trial in the Circuit Court of

Washington County, Mississippi. State of Mississippi v. J. C.

Smith, et al., Criminal Docket No. 14.515. After several witnesses

testified, Smith and Bledsoe entered pleas of guilty to the lesser

charge of assault and battery, a misdemeanor, and each was fined

$175 plus costs.

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cause of action accrues!‘ More specifically, there is

no federal maritime interest which requires an overruling

of Mississippi's judgment that this assault and battery ac-

tion should have been extinguished one year after it ac-

crued. Yet, the Court of Appeals permitted these suits to

be instituted more than five years after the shooting inci-

dent occurred.

b. The Federal Maritime Interests

In addition to expertise in a unique field, federal ad-

miralty jurisdiction has traditionally advanced one funda-

mental interest, uniformity of the general maritime law.

Moragne v. States Marine Lines, 398 U.S. 375 (1970).

In dissent below, Judge Morgan correctly noted that

“Uniformity is hindered, not advanced. by the majority’s

decision in this case.” 485 F.2d at 528.

The correctness of Judge Morgan’s statement is

brought home by a reversal of the facts in this case. As-

sume another shootout wherein the poacher firing from a

boat wounded the caretaker. Could the caretaker bring a

suit in admiralty against the poacher? Does it make any

14. A survey of the states and their statutes of limitations

reveals: Seventeen (17) states [Alabama, Arkansas, California.

Colorado, Kansas, Kentucky, Louisiana, Maryland, Mississippi, Ne-

braska, New York, North Carolina, Ohio, Oklahoma. Tennessee,

Utah, and Wyoming] and the District of Columbia have one year

statutes of limitations: twenty-nine (29) states [Alaska. Arizona.

Delaware, Florida, Georgia, Hawaii. Idaho, Illinois, Indiana, Iowa.

Maine, Massachusetts, Michigan, Minnesota, Missouri. Montana,

Nevada, New Hampshire, New Jersey, North Dakota. Oregon,

Pennsylvania, South Carolina, South Dakota, Texas, Virginia,

Washington, West Virginia, and Wisconsin] have two year statutes:

and only four (4) states [Connecticut, New Mexico, Rhode Island,

and Vermont] permit such an action to be brought as late as three

years after the event. Also of importance for comparison pur-

Poses are the Death On the High Seas Act. which contains a two

year statute of limitations, 46 U.S.C. §763, and the Jones Act,

which has adopted the three year FELA limitations period. 46

U.S.C. §688; 45 U.S.C. §56.

sense in either case to have jurisdiction turn on which gun-

man is the most accurate shot?" Suppose the caretaker had

attempted to bring an action five years after the date of

wounding. It makes no sense to permit the poacher to

have his cause of action while the caretaker’s suit under

the above hypothesis would be barred. Do not the anoma-

lies created by the above situation originate in a single

source—the supposition that admiralty jurisdiction ob-

tains over cases of this nature? If admiralty jurisdic-

tion does not lie, there would be a single, uniform set

of rules governing the rights and responsibilities of all

concerned, caretaker and poacher. Yet, ironically,

admiralty, the body of law that most strongly pro-

claims the need for uniformity, is the vehicle for a de-

cision which, if allowed to stand, would create a bram-

ble bush for courts, future litigants and their counsel.

D. Executive Jet Has Left Unsettled an Important

Question of Federal Jurisdiction Which Has Led

to a Direct Conflict Between the Circuits

There is a conflict among the circuits which, when cou-

pled with a growing number of inconsistent district court

opinions and a recognition of the importance of the juris-

dictional question at issue. supports the granting of cer-

tiorari here. Five recent post-Executive Jet cases have

reached varying jurisdictional results based on disparate

reasoning. These inconsistent results are a direct result of

the failure of Executive Jet to delineate in a non-aviation

context the meaning of “traditional maritime activity.”

15. For jurisdictional Purposes, the courts look to the place

where the injury was inflicted on plaintiff, not where the tort was

committed by defendant. Watz vy. Zapata Off-Shore Company,

431 F.2d 100, 109 (5th Cir. 1970).

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1. The Fifth Circuit vs. the Fourth Circuit

The confusion in the Fifth Circuit cases'* and the pres-

ence of a conflict between the circuits is made clear by

Crosson v. Vance, supra, a recent Fourth Circuit decision.”

There suit was brought for negligent towage of a water

skier in a tributary of the Chesapeake Bay. The Court of

Appeals found no apparent federal maritime interest in pro-

viding a forum or a uniform body of law for the adjudica-

tion of claims growing solely out of the operation of pleas-

ure craft.

The Fourth Circuit based its decision on footnote 5, in

which the Executive Jet rejected King v. Testerman, itself

a negligent skiing case. Still, the Court noted in all candor.

that without this footnote it would remain “an open ques-

tion” what, in the context of the operation of small boats

and injuries to water skiers, would be a traditional mari-

time activity.

16. The Fifth Circuit's most prominent pre-Exrecutire Jet

foray into this area was Peytavin v. Government Employees In-

surance Company, 453 F.2d 1121 (5th Cir. 1972). The confusion

existing within the Fifth Circuit becomes apparent when Peytavin

is read alongside the panel decision below and with Watz v.

Zapata Off-Shore Co., 431 F.2d 100 (5th Cir. 1970). Further,

exacerbating this confusion and the conflict between the Fourth

and Fifth Circuits is Green v. Ross, 481 F.2d 102 (5th Cir. 1973),

a post-Erecutive Jet decision, in which the Fifth Circuit assumes

sub silentio admiralty jurisdiction over a motorboat/skin diver

accident in the Atlantic Ocean two miles off the Florida coast.

There is no way these cases may be logically reconciled, either

among themselves or with Executive Jet.

17. Assume a pleasure boating accident occurring on the

navigable waters of the Savannah River. Not only does the

Savannah divide Georgia and South Carolina, but. more im-

portantly, it is the boundary between the Fourth and Fifth Cir-

cuits. By reason of the conflict between the opinion below and

Crosson, the potential for capricious results is unlimited. Sim-

ilarly, if the Eighth Circuit should affirm Moye and if the Ninth

Circuit should affirm Adams, opposite rules of admiralty tort ju-

risdiction would apply on the navigable waters of the Missouri

River as they flow from Montana into South Dakota.

10.

The Crosson opinion consists primarily of the Fourth

Circuit’s effort to do what this Court would have it do. Fol-

lowing Executive Jet, the Fourth Circuit held that a mere

potential, as distinguished from actual, effect upon mari-

time commerce is not sufficient to bring a particular civil]

action within the scope of federal admiralty jurisdiction.

The Fourth Circuit has thus placed itself squarely in con-

flict with the Fifth Circuit on a fundamental jurisdictional

question: Must the “significant relationship”, which Ex-

ecutive Jet demands that “the wrong” bear to traditional

maritime activities, be actual, or may it merely be poten-

tial?

This conflict becomes glaringly apparent in the face of

a factorial comparison and analysis of the cases in each cir-

cuit.

Factors Kelly Crosson

Functions and roles of

Parties

Types of vehicles and

functions

(Fifth Circuit)

pilot and

Passengers

outboard motorboat

(Fourth Circuit)

pilot and passengers

outboard motorboat

Type of instrumen- firearms waterskiis

tality

Causation of injury, gunshot negligent towing

i.e., the wrong

Type of injury

Role of admiralty

tort law

personal injuries

none

Personal injuries

none

Waters on which tort Chute off Tributary of

consummated Mississippi Chesapeake Bay

Effect upon maritime _ potential only potential only

navigation and com-

merce

Relationship of wrong Insignificant Insignificant

to traditional mari-

time activity

Holding of the Court Admiralty No admiralty

jurisdiction jurisdiction

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2. The Ninth Circuit The United States District

Court for the District of Montana

Three recent district court opinions illustrate an equally

confused interpretation of Executive Jet in the specific con-

text of what “traditional maritime activity” means when

applied to non-commercial, recreational craft. In Adams v.

Montana Power Company, 354 F. Supp. 1111 (D. Mont.

1973), appeal docketed, No. 73-1371, 9th Cir.. July 25, 1973,

the district court refused to find admiralty jurisdiction over

an action involving a deceased plaintiff whose boat was

capsized in the discharge from a dam in the navigable

waters of the Missouri River.'* Relying on Executive Jet,

the Court found that there was nothing resembling tradi-

tional maritime activity on this particular stretch of the

Missouri River. It found further that the activities of

swimmers, boaters, water skiers and fishermen on these

waters should be regulated by local law. Unfortunately,

the clear implication of the case is that if this particular

section of the Missouri River had been open to commercial

vessels despite the fact that a small boat was involved in

a non-commercial context, the district court would have

found admiralty jurisdiction.

3. The Second Circuit ‘The United States District

Court for the Western District of New York

A second District Court decision is Rubin v. Power Au-

thority of State of New York, 356 F. Supp. 1169 (W.D. N.Y.,

1973). There a diver was drawn into the water intakes of

defendant’s generating plant and drowned. Suit was

brought in admiralty. The court refused to find admiralty

jurisdiction because the complaint bore no significant rela-

tion to traditional maritime activity. Unfortunately, the

Court in a footnote intimated that admiralty jurisdiction

18. Note, 44 Miss. L.J. 1013 (1973).

might have properly lain in Davis y. City of Jacksonville

Beach, supra, and King v. Testerman, supra, because “they

arguably arose out of the operation of vessels.” These

cases, however, were expressly rejected by Executive Jet

in footnote 5.

4. The Eighth Circuit ‘The United States District

Court for the Eastern District of Arkansas

In St. Hilaire Moye vy. Henderson, 364 F. Supp. 1286

(E.D. Ark. 1973), decided more than ten months after

Executive Jet, the District Court reached a result in direct

conflict with the Fourth Circuit’s Crosson decision. Moye

was an action by a motorboat Passenger against three de-

fendants, the owner of the boat, the operator and a fellow

Passenger. Plaintiff claimed personal injuries sustained

in a boating accident on the Arkansas River. The District

Court held that

the admiralty jurisdiction of the federal courts in Ar-

kansas extends to motorboat accidents occurring on the

navigable lakes and streams of this state. 364 F. Supp.

at 1293.

Ignoring the test stated in Executive Jet, the district

court, in unpublished memorandum opinion delivered June

8, 1973, holds that the “type of activity in which the boat is

being operated” is irrelevant to the jurisdictional inquiry.’®

Inexplicably, the jurisdictional holding of the Court in no

way is limited to cases in which the wrong bears a signifi-

cant relationship with traditional maritime activity.

Moye is the most confused and erroneous of all of the

post-Executive Jet admiralty tort jurisdiction cases.

19. The Arkansas District Court has apparently decided to

stand firm behind the 1971 decision in Free v. Sample, 324 F. Supp.

1362 (W.D. Ark. 1971), the 1972 decision of this Court in Executive

Jet to the contrary notwithstanding. See also, Madole v. Johnson.

241 F. Supp. 379 (W.D. La. 1965). a case involving a motorboat

accident occurring on Lake Hamilton in Arkansas.

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ever sc emma ever 9

5. This Court Should Decide Whether a POTEN-

TIAL or an ACTUAL Effect on Maritime Com-

merce Is Necessary to Support Jurisdiction

Executive Jet, in the context of aviation, clearly an-

swers the question of what constitutes “a significant rela-

tionship to traditional maritime activity”. 409 U.S. at 268.

The lower federal courts will have little, if any, difficulty

applying Executive Jet to aviation cases.2° Still lacking,

however, is an answer to the same question in the context

of recreational craft and other non-commercial vessels.

Specifically, the instant case contains facts which will

enable the Court to settle once and for all (a) whether a

remote or merely potential effect upon maritime commerce

will suffice, or (b) whether an actual effect upon, or in-

volvement with, maritime affairs is necessary. More gen-

erally, this case presents an excellent fact situation through

which this Court may settle. permanently and concretely,

the jurisdictional standard by which the activities and tor-

tious conduct involving recreational, non-commercial ves-

sels and their occupants shall be governed.

E. The Factual Context of Executive Jet Has Led to

Uncertainty Regarding the Applicability of Pre-

Executive Jet, Nou-Aviation, Admiralty Tort Juris-

diction Precedents, Concerning Which the Circuits

Have Been in Sharp Conflict

1. Some Courts Have Restricted Executive Jet to

Aviation Cases

Some courts (erroneously, we believe) have held that

Executive Jet has no application to non-aviation tort cases.

See, e.g.. Watson v. D’/S/A Idaho, 359 F. Supp. 496, 499

20. See, e.g. Teachy v. United States. 363 F. Supp. 1197 (M.D.

Fla. 1973). Compare Hark v. Antilles Airboats, Inc., 355 F. Supp.

683 (D. V.I, 1973), and Higginbotham v. Mobil Oil Corp., 357

F. Supp. 1164 (W.D. La. 1973).

Taiaw i ONL NE Pb PTE Te ae

(E.D. Pa. 1973). In Luna v. Star of India, 356 F. Supp. 59

(S.D. Calif. 1973), the court discussed Executive Jet, but

then, thinking the application of Executive Jet was limited

to aviation cases, proceeded to resolve the jurisdictional

issue according to pre-Executive Jet law.

2. “Strict Locality” in Non-Aviation Tort Cases

Has Not Been Finally Interred

Askew v. American Waterways Operators, 411 U.S. 325

(1973) exacerbates the confusion regarding the proper

scope and application of Executive Jet. In Askew, a post-

Executive Jet case, the Court quotes from an 1834 opinion

by Mr. Justice Story enunciating the strict locality test for

admiralty tort jurisdiction as follows:

‘In regard to torts I have always understood that the

jurisdiction of the Admiralty is exclusively dependent

upon the locality of the act.’ 411 US. at

Askew then notes, 411 U.S. at fn. 9, that the fore-

going was a “statement we recently quoted with approval”

in Executive Jet. 409 U.S. at 253, and in Victory Carriers,

404 US. at 205.

This raises the specter of the entire pre-Executive Jet

controversy regarding the proper contours of admiralty

tort jurisdiction in non-aviation cases. There we find the

First," Second** and Ninth”? Circuits in sharp conflict with

21. Fireman’s Fund American Ins. Co. v. Boston Harbor

Marina, Inc., 406 F.2d 917 (1st Cir. 1969).

22. Berwind-White Coal Mining Co. v. City of New York,

135 F.2d 443, 446 (2d Cir. 1943); Leather’s Best, Inc. y. S.S. Mar-

maclynz, 451 F.2d 800, 808 (2d Cir. 1971); but see, McGuire v.

City of New York, 192 F.Supp. 866 (S.D. N.Y. 1961).

23. United States v. Matson Nav. Co., 201 F.2d 610. 613 (9th

Cir. 1953): Gebhard v. S.S. Hawaiian Legislator, 425 F.2d 1303,

1306 (9th Cir. 1970); but see, Campbell v. Hackfield & Co., 125

F. 696 (9th Cir. 1903).

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the Fifth** and Sixth* Circuits. This Court should grant

certiorari here (1) to settle conclusively the conflict re-

garding the scope and application of the holding of Execu-

tive Jet and/or (2) to resolve the conflict among the cir-

cuits regarding the test for admiralty tort jurisdiction in a

non-aviation context.

VI. CONCLUSION

On the basis of the arguments advanced herein, and

the authorities cited in support thereof, Chicot Land Com-

pany, Inc., respectfully submits that the petition for writ

of certiorari should be granted. Upon the issuance of the

writ, the decision of the Court of Appeals should be re-

versed and remanded with instructions to dismiss for lack

of admiralty jurisdiction.

JAMES L. ROBERTSON

LAWRENCE D. WapE

CLaubEe L. Stuart, III

923 Washington Avenue

Greenville, Mississippi 38701

Inc., Defendant-Appellant

24. See cases cited in footnote 16, supra.

25. Chapman v. City of Grosse Pointe Farms, 385 F.2d 962

(6th Cir. 1967); Gowdy v. United States, 412 F.2d 525 (6th Cir.

1969).

CERTIFICATE

I, JAMES L. ROBERTSON, one of the attorneys of rec-

ord for Chicot Land Company, Inc., one of the Appellants

herein, do hereby certify that I have this day mailed, post-

age prepaid, a true and correct copy of the foregoing Peti-

tion for a Writ of Certiorari to the United States Court of

Appeals for the Fifth Circuit to the following persons:

(1) Philip E. Henderson, Esq.

704 Verret Street

Houma, Louisiana 70360

Attorney of Record for Plaintiffs-Respondents

(2) Walter R. Harwell, Jr., Esq.

P. O. Box 15029

Baton Rouge, Louisiana 70815

Attorney of Record for Plaintiffs-Respondents

(3) O. C. Burnside, Jr., Esq.

P. O. Box 288

Lake Village, Arkansas 71653

Attorney of Record for Defendant J. C. Smith

(4) William H. Drew, Esq.

P. O. Box 744

Lake Village, Arkansas 71653

Attorney of Record for Defendant Billie H. Bledsoe

This 15th day of January, 1974.

NN PIETER ORR NED 1G MOU NT PAINS PPI MCR EO ELh BF

Qevwerecr:

Pane Rae ere Be

APPENDIX ‘‘A”’

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 72-3285

GARLAND WAYNE KELLY and

ALLEN EUGENE KELLY, SR.,

Plaintiffs-Appellees,

versus

J. C. SMITH, CHICOT LAND COMPANY, INC., ET AL,

Defendants-Appellants.

Appeals from the United States District Court for the

Northern District of Mississippi

(August 28, 1973)

Before TUTTLE, GODBOLD and MORGAN,

Circuit Judges.

GODBOLD, Circuit Judge: This case arises from

a mini ship-to-shore gun battle in the Mississippi River.

The vessel, no ship of the line, is a 15-foot outboard boat.

The combatants are irregular forces, fleeing deer poachers

afloat and outraged defenders of a private hunting pre-

serve ashore. The armament, rather than coastal batteries

and carronades on the gun deck, consists of hunting rifles.

The forces encountered one another as the result of actual

though unintended, aerial reconnaissance. The engage-

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ment commenced with solid shot—from a rifle—fired

from shore across the bow of the boat to signal it to stop.

It continued on course. The gunners ashore lowered their

elevation and fired into the water beside the boat. The

boat continued in flight at full speed ahead, and the next

rounds were fired into the boat. holing the boat and wound-

ing the man at the tiller, who was the senior man on board,

and another. The force afloat, having suffered these seri-

ous casualties, dispatched a few rounds shoreward, broke

off the engagement and retired from the scene in disarray.

The land detachment won the battle but lost the lawsuit.

We affirm.

The central issue is whether the tort claims of plain-

tiffs, casualties aboard the boat, are within admiralty juris-

diction. In addition, defendants-appellants contend that

the court erred in failing to sustain their plea of laches to

this 51; year old cause of action and in finding Chicot Land

Company vicariously liable for the actions of defendants

Smith and Bledsoe.

On November 27, 1965 Allen Eugene Kelly, Sr. and his

three sons, all residents of Mississippi, slipped across the

Mississippi River to Woodstock Island in their 15-foot boat

for a day of clandestine deer hunting. The island is located

on the west side of the main channel. It is covered with

timber and well stocked with wild game, especially deer.

It was owned by Anderson-Tully Co., which had granted

to Chicot Land Company, an Arkansas land management

corporation, a license for exclusive hunting rights on the

island. In return for the license Chicot paid a fee, main-

tained roads and fire lanes on the island. employed the

caretaker, and assumed general responsibility for the well

being of the island. Woodstock Hunting Club, the hunting

rights licensee prior to Chicot, was an association formed

to enjoy hunting on the island and to communally share

the expenses of the license and hunting. Chicot succeeded

- STON BAe nde One a ae

to the hunting club’s license because the club was unable

to pay the annual rental regularly or to perform the neces-

sary maintenance and construction on the island. After

Chicot took over the license the club members continued

to enjoy the hunting rights, and the club reimbursed Chicot

for its expenses as the club members paid their dues. De-

fendant J. C. Smith, a resident of Arkansas, had been the

caretaker of the island for its various owners since the

1930's. He was also the prime mover in organizing and

running the hunting club.'' At the time of the incident

Smith was employed by Chicot to maintain its heavy con-

struction equipment, and to serve as caretaker for the

island.?

During the afternoon of November 27, 1965, Defend-

ants Smith and Bledsoe were at the clubhouse on the island.

Another club member flying a light airplane evidently

sighted the Kellys’ boat and dropped a note to Smith and

Bledsoe informing them of the suspected poachers on the

island. The Kellys, suspecting discovery, took to their

boat in an attempt to flee. Simultaneously, Smith and

Bledsoe rushed to where the note indicated the boat was

docked. At that point the parties’ stories diverge. The

exchange of gunfire ensued. Smith and Bledsoe claimed

that they signaled and yelled at the Kellys to return to the

island in order to establish their identity and that the

Kellys responded by shooting at them. The Kellys con-

tended that Smith and Bledsoe fired first. The District

Court found that Smith and Bledsoe initiated the firing,

1. The president of Chicot was a hunting companion of

J. C. Smith and an officer and director of the Woodstock Hunting

Club since its formation.

2. His duties as caretaker included the regulation and super-

vision of all hunts, the general care and maintenance of the club-

house, keeping up the fire lanes and roads, making sure that an

adequate food supply was available for the game, and keeping

off all trespassers and poachers,

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first across the bow of the vessel to indicate that it should

Stop, then into the water next to the boat. The Kellys

continued at full speed to try to get out of range, and Kelly,

Sr., indicated he would not return to the bank. The two

men on shore then fired into the boat, striking Kelly, Sr.,

and Garland Wayne Kelly. One of the Kelly sons then

fired his rifle at Smith and Bledsoe.

In early 1971 Kelly, Sr., and his injured son, Garland

Wayne Kelly, filed suits for their injuries in federal district

court against Smith, Bledsoe, Chicot. Anderson-Tully, and

the members of the Woodstock Hunting Club, alleging di-

versity of citizenship and admiralty jurisdiction.» The

District Court dismissed the Club on a motion for summary

judgment.‘ After a nonjury trial the court concluded that

despite the Kellys’ status as trespassers, Chicot, Smith, and

Bledsoe were jointly and severally liable to Kelly, Sr., for

$69,772.40 and to Garland Wayne Kelly for $2,593.96. It

found that Chicot was vicariously liable for Smith’s actions

under respondeat superior and for Bledsoe’s actions because

Bledsoe was acting under the instructions and at the re-

quest of Smith to protect and defend Chicot’s valuable hunt-

ing rights on the island. Anderson-Tully was absolved of

liability because Smith and Bledsoe were not acting in its

behalf. Integral to the District Court's decision were its

corelusions that the cause of action was one in admiralty

and that the Kellys were not barred by laches. Those are

the issues on a»peal, plus the issue of Chicot'’s vicarious

liability. Defendants do not contest, under the clearly

erroneous rule, the District Court's finding that Smith and

Bledsoe were the aggressors, nor the conclusions that

3. The incident spawned other litigation also. In 1968 a

Mississippi state court had convicted and fined Smith and Bledsoe

for criminal assault and battery. Also in 1968 the Kellys evi-

dently brought suit against Smith and Bledsoe in an Arkansas

court for damages to their boat.

4. That dismissal was not appealed.

Smith and Bledsoe committed the intentional tort of assault

and battery and that the force used in protecting Chicot’s

exclusive hunting rights was excessive.

a. Admiralty tort jurisdiction

The issue of jurisdiction is crucial. If jurisdiction was

sustainable only on diversity grounds the Kellys’ Erie-

bound claim was barred by the Mississippi one-year statute

of limitations for assault and battery cases. Miss. Code

Ann. § 732.'

Historically the standard for determination of mari-

time tort jurisdiction was viewed as a question of the

locality of the tort. Maritime law governed only those

actions where the “substance and the consummation

of the injury” took place on navigable waters. The Ply-

mouth, 70 U.S. (3 Wall.) 20, 33, 18 L.Ed. 125, 127 (1886).

The strict locality standard was perfunctorily repeated

with such frequency" that most courts seemingly lost track

of the failure of the Supreme Court to explicitly decide

whether maritime tort jurisdiction turned solely on mari-

time locality. In Atlantic Transport Co. v. Imbrovek, 234

U.S. 52, 58 L.Ed. 1208 (1914), a case involving injuries sus-

tained by a stevedore on board a vessel while loading

copper, the Court upheld federal admiralty jurisdiction but

5. The shifting of the river channel has created extensive

litigation concerning the Precise location of the Arkansas-Missis-

sippi boundary, Anderson-Tully Co. v. Walls, 266 F. Supp. 804

(N.D. Miss. 1967); Arkansas Land & Cattle Co. v. Anderson-

Tully Co., 248 Ark. 500, 452 S.W. 2d 636 (1970); Mississippi v.

Arkansas, 403 U.S. 951, 29 L.Ed. 2d 862 (1971), but the parties

to this action agreed that the incident in this case occurred in

Mississippi.

6. Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 66

L.Ed. 321 (1922); State Indust. Comm. v. Nordenholt Corp., 259

U.S. 263, 66 L.Ed. 933 (1922); Victory Carriers v. Law, 404 US.

202, 30 L.Ed. 2d 383 (1971) (see exhaustive list of cases in fn. 2);

Penn Tanker Co. v. U.S., 409 F.2d 514 (CA5, 1969); 7A Moore,

Federal Practice, Admiralty § .325 [3] (2d ed. 1972).

PUR ae rT

Ih Apap

Serres area eit Aaah et ei lial ot eat, Thal ed

explicitly found it unnecessary to consider whether mari-

time locality alone was sufficient. The Court did not

address the question directly again until 1972.7 In Execu-

tive Jet Aviation v. Cleveland, ........ RD atin , 34 L.Ed.2d

454 (1972), plaintiff's plane lost power from ingesting sea-

gulls into its engines while taking off from defendant’s air-

port and came to rest and sank off the end of the runway

in Lake Erie. Plaintiff sued in admiralty, alleging that

defendant negligently failed to keep its runway free of

seagulls or to warn of their presence. The Court of Ap-

peals found that the tort occurred on land, therefore the

case was not cognizable in admiralty. Executive Jet Avia-

tion, Inc. v. City of Cleveland, 448 F.2d 151. 154 (CA6,

1971). But the Supreme Court faced the broader question

of whether maritime locality alone is sufficient to create

admiralty tort jurisdiction.

In the factual context of Executive Jet the Court de-

clared:

... the mere fact that the alleged wrong “occurs” or

“is located” on or over navigable waters—whatever

that means in an aviation context—is not of itself suf-

ficient to turn an airplane negligence case into a

“maritime tort.” It is far more consistent with the

history and purpose of admiralty to require also that

the wrong bear a significant relationship to traditional

maritime activity ....

stasis US. at ......... 34 L.Ed.2d at 467.

In reaching its decision about airplane negligence cases

the Court pointed out that

7. Despite the general acceptance of the strict locality

standard, a small line of cases recognized that Imbrovek had left

the question open. The Raithmoor, 241 US. 166, 60 L.Ed. 937

(1916); The Pozman, 276 F. 418 (S.D.N.Y. 1921); Sidney Blu-

menthal & Co. v. U.S., 30 F.2d 247 (CA2, 1929); Kermac vy.

Compagnie Generale Transatlantique, 245 F.2d 175 (CA2, 1957).

. . . there has existed over the years a judicial, legis-

lative. and scholarly recognition that, in determining

whether there is admiralty jurisdiction over a particu-

lar tort or class of torts, reliance on the relationship

of the wrong to traditional maritime activity is often

more consonant with the purposes of maritime law

than is a pureiy mechanical application of the locality

test.

5 ee 34 L.Ed.2d at 463.

Foreshadowing the Supreme Court's analysis and con-

clusion in Executive Jet, this court recognized the inade-

quacies of the strict liability test in Watz vr. Zapata Off-

Shore Co., 431 F.2d 100, 109-111 (CA5, 1970). And in

Peytavin v. Government Employees Ins. Co.. 453 F.2d

1121 (CA5, 1972), we concluded that the facts and circum-

stances of each claim must have a substantial connection

with maritime activities or interests in order to invoke the

admiralty jurisdiction of the federal courts.

The analysis and thrust of Executive J et, coupled with

our decision in Peytarin, dictate the conclusions that mari-

time locality alone is no longer sufficient to sustain mari-

8. Sporadically other cases had adopted this view. Chapman

v. Grosse Pointe Farms, 385 F.2d 962 (CA6, 1967): McGuire v.

New York, 192 F. Supp. 866 (S.D.N.Y. 1961): Smith v. Guerrant,

290 F. Supp. 111 (S.D. Tex.. 1968): Campbell v. Hackfield &

Co., 125 F. 696 (CAQ, 1903). Cf. Gowdy v. U.S., 412 F.2d 525

CA6, 1969); Davis v. Jacksonville Beach, 251 F. Supp. 327 (M.D.

Fla. 1965); King v. Testermann, 214 F Supp. 335 (E.D. Tenn.

1963); Peterson Coal & Oil Co. v. U'S., 323 F. Supp. 1198 (N.D. Il.

1970); O'Connor & Co. v. Pascagoula, 304 F. Supp. 681 (S.D.

Miss. 1969); Hastings v. Mann, 226 F. Supp. 962 (E.D.N.C. 1964),

aff'd 340 F.2d 910 (CA4, 1965). The English courts adopted the

same view. The Queen v. The Ji udge of the City of London Court,

1 QB 273 (1892). See also. 7A Moore, Federal Practice, Admiralty

Critique and Suggestions, 50 Colum. L. Rev. 259 (1950): ALI,

Study of the Division of Jurisdiction Between State and Federal

Courts (1969).

;

WER Ei et om

time jurisdiction,” and that the wrong must bear a signifi-

cant relationship to maritime activity.

In Executive Jet, Peytavin, & Watz, the courts pre-

sented and analyzed the rationale for adcpting significant

relationship to maritime activity as a requirement for ad-

miralty jurisdiction. The strict locality test suffered from

a susceptibility to mechanical application and from a ten-

dency to create inconsistent results in cases otherwise con-

ceptually analogous. In Smith & Son v. Taylor, 276 U.S.

179, 72 L.Ed. 520 (1928), a longshoreman knocked from a

wharf into the water by a sling being lowered from a ves-

sel had remedies only under state law. while in Minnie v.

Port Huron Term. Co., 295 U.S. 647, 79 L.Ed. 1631 (1935),

the longshoreman who was standing on the vessel and

knocked onto the wharf had federal law remedies. An-

other problem engendered by the strict locality rule was

determination of where the tort occurred. See the Sixth

Circuit’s opinion in Executive Jet, supra. Indeed courts

often equated injury with the broader concept of tort,

which encompasses not only injury but causation and con-

siderations of public policy. In 1948, as a result of cases

which held that injury to property on land caused by

vessels on navigable streams was not a maritime tort, e.g.,

The Plymouth, supra, Congress adopted the Extension of

Admiralty Act, 46 U.S.C. s-740. See, Black, Admiralty

Jurisdiction; Critique and Suggestions, 50 Colum. L. Rev.

259 (1950); 7A Moore, Federal Practice, Admiralty {

325[4].

9. If indeed locality alone actually ever was sufficient. As

noted in Smith v. Guerrant, 290 F. Supp. 111, 112 fn. 4, (S.D.

Tex. 1968), in the cases where the Supreme Court most unequivo-

cally set out the strict locality rule the relation between the dis-

pute and maritime commerce was manifest. State Indust. Comm.

v. Nordenholt Corp., supra: Grant Smith-Porter Ship Co. v.

Rohde, supra.

. “ nee oo ae

The District Court found that the stretch of the Mis-

sissippi River where the Kellys were injured was nav-

igable. The evidence of navigability, including testimony

by a tugboat captain who regularly traveled that stretch,

is sufficient to support the court's finding, and it is not

clearly erroneous. Rule 52(a), FR. Civ. P.; McAllister v.

U.S., 348 U.S. 19, 99 L.Ed. 20 (1954); Chaney v. City of Gal-

veston, 368 F.2d 724 (CA5. 1966).

However, in this case admiralty jurisdiction does not

arise from the bare facts that the Kellys’ injury was con-

summated on navigable waters while they were in a boat.

While those facts weigh towards maritime jurisdiction. we

must look to all the circumstances for a substantial mari-

time relationship. Both Peytavin and Executive Jet offer

guidelines for the determination.

The incident in Peytavin was a rear-end car collision

on a floating pontoon used for loading and unloading a

ferry, which resulted in a whiplash neck and back injury

to plaintiff. The court. admitting that both parties were

using facilities which were connected to maritime com-

merce, focused on the relationship to maritime activities

or interests of the parties, the nature and apparent cause of

the accident. and the injury sustained. Finding that a

rear-end collision between terrestrial vehicles, operated by

landlubbers, and resulting in a typical automobile traffic

accident injury lacked sufficient maritime flavor, we con-

cluded that admiralty jurisdiction was absent. 453 F.2d at

1126.

In Executive Jet, the Court recognized that super-

ficial similarities may exist between the plights of sink-

ing ships and airplanes downed on water but pointed out

that “. . . the plane’s unexpected descent will almost in-

variably have been attributable to a Cause unrelated to the

sea... .” The Court also stressed the inherent differences

between water and air transportation and said:

VEE SIE SRA Te eee em aa ey

ANS TY POEM I LAN oT RRL

SEINE UH OMe RR

— Poser are Spare

7 HON MES,

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[Admiralty] [rJules and concepts . . . are wholly alien

to air commerce, whose vehicles operate in a totally

different element, unhindered by geographical bound-

aries and exempt from the navigational rules of the

maritime road. The matters with which admiralty is

basically concerned have no conceivable bearing on

the operation of aircraft over land or water.

errr USS. at ......... 34 L.Ed.2d at 468. The Court did not

decide whether an aviation tort could ever bear a “suf-

ficient relationship to traditional maritime activity to come

within admiralty jurisdiction . . .,” and indeed it suggested

that an aircraft performing a function traditionally per-

formed by waterborne vehicles might bear a sufficient

relationship. ........ I scien , 34 L.Ed.2d at 469. See, e.g.,

Hornsby v. The Fishmeal Co., 431 F.2d 865 (CA5, 1970)

(mid-air collision of light aircraft used in spotting schools

of fish); Hark rv. Antilles Airboats, Inc., ....... F.Supp. ........

(D. V. L., 41 USLW 2507, March 7, 1973) (seaplane crash).

From the facts and analysis of Executive Jet and Pey-

tavin we can discern factors to be considered in the cir-

cumstances before us: the functions and roles of the

parties; the types of vehicles and instrumentalities in-

volved; the causation and the type of injury; and tradi-

tional concepts of the role of admiralty law.

The party most seriously injured was the pilot, the

person responsible for the safe navigation of the river.

The vehicle involved was a boat, not an automobile or air-

plane, whose function was transportation across navigable

waters, a traditional role of watercraft.?°

10. Compare, Adams v. Montana Power Co., F. Supp.

.., (D. Mont. Civ. No. 2115, Feb. 22, 1973) (negligent operation

of a recreational boat on a landlocked fishing and skiing lake);

see, Stolz, Pleasure Boating and Admiralty, 51 Calif. L. Rev. 661

(1963).

All |

The other instrumentalities involved—firearms—and

the injuries they caused, are not so inherently indigenous to

land as to preclude any maritime connection. Additionally,

upholding admiralty jurisdiction does not stretch or dis-

tort long evolved principles of maritime law. Admiralty

has traditionally been concerned with furnishing remedies

for those injured while traveling navigable waters.

Policy militates toward admiralty jurisdiction in this

case. The admiralty jurisdiction of federal courts stems

from the important national interest in uniformity of law

and remedies for those facing the hazards of waterborne

transportation. Rifle fire directed at a vessel, albeit a small

one, on a major commercial artery, and injuring the pilot,

presents sufficient danger to maritime commerce for the

federal courts of admiralty to assume jurisdiction and to

furnish remedies to those aboard the vessel and injured by

that conduct. Regardless of whether the Kellys had avail-

able remedies in state courts, the federal interest in pro-

tecting navigation on the Mississippi River overrides any

considerations of federal-state comity or conflicts of inter-

est.

b. Laches

In Watz v. Zapata Off-Shore Co., supra, and Powell

v. City of Key West, 434 F.2d 1075 (CA5, 1970). we dis-

cussed the interrelated and often overlapping elements,

excuse for delay and prejudice to the defendant. that bear

on whether a long-delaying plaintiff is time-barred. See

also, McMahon v. Pan American World Airways, Inc., 297

F.2d 268 (CA5, 1962); Molnar v. Gulfcoast Transit, 371

F.2d 639 (CA5, 1967); Akers v. State Marine Lines, 344

F.2d 217 (CA5, 1965). The Kellys were diligent in seek-

ing to bring this suit, but, the court found, were thwarted

by the failure of reputable law firms to diligently repre-

sent them. The District Court found that the delay by

PORE YPN E ERIS

Vee

LLL BELEN YA

Pry NER NBecs

Al2

the Kellys in bringing the suit was justifiable, and that

defendants suffered no prejudice, in fact were aided by

the delay. An unknown witness became available to de-

fendants after the running of the Mississippi statute of

limitations. The trial judge enjoys a wide area of dis-

cretion in ruling on a claim of laches, Powell v. City of

Key West, supra, and we cannot say that he exceeded it

in this case.

c. Chicot’s vicarious liability

Although some evidence suggests that Chicot lacked

substantial control over Smith's activities on the island,

there is sufficient evidence indicating that Smith was in-

deed acting as an agent protecting Chicot’s interests on

the island to warrant the finding of vicarious liability. The

conclusion that Bledsoe was acting to protect Chicot’s in-

terest under the instructions of Smith also finds sanctuary

in the plainly erroneous rule.

AFFIRMED.

MORGAN, Circuit Judge, dissenting:

In spite of the beacon provided by the Supreme Court

in Executive Jet Aviation, Inc. v. City of Cleveland, ........

REG conte , 34 L.Ed.2d 454 (1972), the majority seems to

have run aground on the rocks of admiralty jurisdiction.

Had I been in command, I would have charted our course

differently by holding that the federal courts have no ju-

risdiction over this cause of action.

After years of intellectual erosion. the “pure locality”

test for admiralty jurisdiction has been washed to sea.

Since Executive Jet, a condition of admiralty tort juris-

diction is that “the wrong bear a significant relationship

to traditional maritime activity.” 34 L.Ed.2d at 467. Every-

Al3

one agrees that “locality plus” is the test in this case,'

but we are still faced with the question, “locality plus

what?” The majority holds that. “we must look to all

the circumstances for a substantial maritime relationship.”

I agree with them that the important considerations are

the functions and roles of the parties, the types of vehicles

and instrumentalities involved, the causation and type of

injury and the role of admiralty law.

But an additional consideration is present when asser-

tion of admiralty jurisdiction involves a potential conflict

with applicable state law. Such a conflict exists here, be-

cause state rules also govern these events. Even if brought

in federal court on diversity grounds, the state substantive

law, including its statute of limitations, would apply.

Ragan v. Merchants Transfer & Warehouse Co., Inc.. 337

U.S. 530 (1949). Thus, by asserting admiralty jurisdic-

tion, we effectively deprive the state of its control over

this cause of action. Such deprivation is justified in many

cases, but only if the federal interest in uniformity out-

weighs the other interests at stake.

In this sense our analysis of the admiraity clause of

the Constitution can be analogized to be now well-devel-

oped body of case law interpreting Erie R. Co. v. Tomp-

kins. See Byrd v. Blue Ridge Rural Electric Cooperative,

356 U.S. 525 (1958). Hanna v. Plumer. 380 U.S. 460 (1965)

(Harlan, J. concurring) and Szantay v. Beech Aircraft

Corporation, 349 F.2d 60 (4 Cir. 1965).

Using this type of analysis, we must examine the rele-

vant federal and state interests in this case to see which

1. The progeny of Executive Jet may abandon the require-

ment of a maritime locality altogether, and physical location will

be only one factor in the equation. But since the district court

found that this tort occurred in navigable waters, and that finding

is not clearly erroneous, we are not faced with that question.

SALA Ay eR

Poreragnan

SEP PRN NN ce aINEY Sosy Ayre

LAUR ED ey

| a RATAN

Al4

is more important. The State of Mississippi has a strong

interest in the outcome. This is shown by the fact that

State substantive rules would apply if the case were based

on diversity jurisdiction, by the existence of a state crimi-

nal penalty for the actions of some of the parties, and the

local nature of the tort of assault and battery. The local

nature of the incident is further emphasized by imagining

a case in which the terrestrial, as cpposed to maritime,

participants in this battle were injured, and sued their at-

tackers. Essentially, that case is the same as the one we

are called upon to decide, yet the assertion of admiralty

jurisdiction in the hypothetical would be a gross overex-

tension of federal power into areas of local concern.

The federal interest, on the other hand, is minimal.

The majority states that rifle fire directed at a vessel pre-

sents a danger to maritime commerce which the federal

courts ought to recognize. But this language obscures the

facts of this case. Mr. Kelly and his cohorts used a 15-foot

boat to sneak across the Mississippi River onto Woodstock

Island to engage in poaching. There is simply no over-

riding federal interest in protecting such conduct. This

is not to say that trespassers should not be protected against

over-reaction by their victims. But the extent to which

they should be protected is.a matter of purely local con-

cern, not of federal concern. The law of admiralty has

purely commercial origins and purposes. Its usefulness

is derived from the strong federal interest in controlling

interstate and foreign commerce on water. and in fashion-

ing a body of rules to govern the unique (sometimes

uniquely hazardous) aspects of waterborne transportation.

Watz v. Zapata Off-Shore Co.. 431 F.2d 100 (5 Cir. 1970).

The complex and peculiar rules of admiralty are particu-

larly suited for deciding suits arising out of “traditional

maritime activities, involving navigation or commerce on

ie Peat FT re de a ly OA ON eR IS

Al5

navigable waters.” Executive Jet Aviation v. Cleveland,

34 L.Ed.2d at 460. In particular, one of the essential char-

acteristics of admiralty jurisdiction is its uniformity, pro-

viding predictable and constant relationships between par-

ties engaged in maritime activities. Moragne v. States

Marine Lines, Inc., 398 U.S. 375 (1970). But uniformity

is hindered, not advanced, by the majority’s decision in

this case. A slight change in physical location would have

produced entirely different results. The plaintiffs had no

reasonable expectation as to which substantive law would

be applied to their actions. No federal interest would be

served by extending the admiralty rules to cover their ac-

tivities, and as shown above, significant state interests

would be abrogated.

For these reasons, I believe that no admiralty juris-

diction exists over this case, and I must respectfully dis-

sent.

POT LE RN TNS ONE ITE

We State PRE De OE SP RENNER ON ARP CYT RE RRR SD

TL AL ae Bees ALi mite ae

Al6

APPENDIX “B”’

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 72-3285

GARLAND WAYNE KELLY and

ALLEN EUGENE KELLY, SR.,

Plaintiffs-Appellees,

versus

J. C. SMITH, CHICOT LAND COMPANY, INC., ET AL.,

Defendants-Appellants.

Appeals from the United States District Court for the

Northern District of Mississippi

ON PETITION FOR REHEARING AND PETITION

FOR REHEARING EN BANC

(Opinion Aug. 28, 1973, 5 Cir., 1973, ........ WE sie ).

(November 19, 1973)

Before TUTTLE, GODBOLD and MORGAN,

Circuit Judges.

PER CURIAM: The Petition for Rehearing filed on

behalf of Chicot Land Company, Inc., is DENIED and no

member of this panel nor Judge in regular active service

on the Court having requested that the Court be polled on

rehearing en banc, (Rule 35 Federal Rules of Appellate

Procedure; Local Fifth Circuit Rule 12) the Petition for

Rehearing En Banc is DENIED.

Al7

APPENDIX ‘‘C’’

IN THE

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF MISSISSIPPI

GREENVILLE DIVISION

ALLEN EUGENE KELLY, SR., ;

Plaintiff,

Vv.

J. C. SMITH, BILLIE H. BLEDSOE,

CHICOT LAND COMPANY, INC.,

AND ANDERSON-TULLY COM-

PANY,

r No. GC 71-5-S

Defendants. |

GARLAND WAYNE KELLY, :

Plaintiff,

J. C. SMITH, BILLIE H. BLEDSOE,

CHICOT LAND COMPANY, INC.,

ANDERSON-TULLY COMPANY

AND WOODSTOCK HUNTING

CLUB,

Defendants.

ALLEN EUGENE KELLY, SR.,

Plaintiff,

J. C. SMITH, BILLIE H. BLEDSOE,

CHICOT LAND COMPANY, INC.,

ANDERSON-TULLY COMPANY

AND WOODSTOCK HUNTING

CLUB,

Defendants.

\ No. GC 71-18-S

> No. GC 71-19-S

(Consolidated Cases)

Als

RULING OF THE COURT

(Filed May 11, 1972)

Ruling of the Honorable Orma R. Smith, Judge, on

Thursday, April 13, 1972, in Clarksdale, Mississippi.

The Court: Gentlemen, in the beginning, let me an-

nounce that should I desire at a later date, to edit the oral

opinion given by me from the bench today, I reserve the

right todo so. And, in addition, I reserve the right to sup-

plement the decision which I will render from the bench

today with a written opinion or memorandum of decision

if I find such to be appropriate in order to clearly state

the Court's position on the several issues before the Court.

I presume the greatest difficulty which faces a trial

judge when he is the finder of the facts is to determine

which side is telling the true story about the matter. There

are always two sides to every question, and it is unfortu-

nate that the trial judge has to make the decision, but that

seems to be a part of the duties of a trial judge when the

jury is waived or when a jury is not permissible or required

in an action.

To begin with I am going to act, before I proceed, upon

the motion of Anderson-Tully Company for a judgment of

default against Mr. Billie H. Bledsoe on its cross-claim. As

I have previously indicated. I think the process in this case,

that is the first case, No. GC 71-5-S, is sufficient to bring

Mr. Bledsoe before court for an in personam judgment.

In other words, I think he is before the Court on the cross-

claim since the attorney who represents him regularly, ac-

cording to his testimony, has elected to receive and has

received, without any objection, all copies of the papers,

notices. and documents of every nature filed in this case.

I think there is a default as against Anderson-Tully, and I

am going to enter a judgment of default against Mr.

Alg

Bledsce in favor of Anderson-Tully for the amount of

money, if any. which the Court feels that the plaintiff in

GC 71-5-S is entitled to recover against Anderson-Tully.

The first issue which I want to discuss is the Mississippi

Statute of limitations. I have indicated in a previous hear-

ing in this case that it is my opinion, should the action be

tried in a State court or in a Federal court under State

law without admiralty jurisdiction, the one-vear statute of

limitations would apply to this action.

The Mississippi statute of limitations does not give the

Court the right to adopt the doctrine of laches. just the

statute of limitations; if the action is barred the right of

recovery is likewise barred.

Section 722 of the Mississippi Code Annotated is the

statute of limitations of general application to torts in Mis-

sissippi. This has been held repeatedly by the Mississippi

Supreme Court. All tort actions. except those which may

be excepted or excluded by Section 732, or perhaps one or

two other special statutes. which I don’t recall right now,

may be brought within six years after the cause of action

accrues. Section 722 provides, and I quote:

“All actions for which no other period of limita-

tion is prescribed shall be commenced within six years

next after the cause of action accrued, and not after.”

So that is the general statute, as I have said. However.

we do have another statute, Section 732. which provides,

and I quote:

“All actions for assault. assault and battery,

maiming. false imprisonment, malicious arrest, or

menace, and all actions for slanderous words concern-

ing the person or title, and for libels, shall be com-

menced within one year next after the cause of such

action accrued, and not after.”

el ld Mk Bk

St te ee

Beceem ger ie ee ie er ee ne

A20

Now, our Supreme Court in one of the later decisions

of the court, Dennis v. Travelers Insurance Company—and

when I say “our Supreme Court”, I have reference to the

Mississippi Supreme Court—in a 1970 case, appearing at

234 Southern 2d, 624, had this to say with reference to

Section 732, and I quote:

“It is clear that Mississippi Code 1942 Annotated

Section 732 (1956), which provides an inclusive listing

of the recognized intentional torts is controlling in the

case at bar. There can be no escape from the bar of

the statute of limitations applicable to intentional torts

by the mere refusal to style the cause brought in a

recognized statutory category and thereby circumvent

prohibition of the statute. Furthermore, the letter,

which is the basis for the action at bar. falls squarely

within the purview of the statute under the category

of ‘menace’ as set out in the statute.”

! think that definition, or rather description, of the

inclusive listing of the statute by the Mississippi Supreme

Court is determinable of this particular question here. For

that reason all claims, in all three cases, which have no

standing in admiralty cannot prevail. Any relief or dam-

ages which the Court may accord in this case, if the Court

awards damages, can be based only on such elements of

damage as are proper under maritime law.

Now, the next question with which the Court wil! deal

is whether the Court has admiralty jurisdiction of these

actions. Of course the first and fundamental requirement

is that this occurrence must have happened on a navigable

waterway.

And, going back to the case of The Daniel Ball v.

United States. 10 Wall. 557. 19 L.Ed. 999, an 1971 case. the

court set out requirements with reference to navigable

waterways. In discussing the history of the question in

A21

England and other places, and what determined the ques-

tion in those places, the court laid down this rule, I think,

for the American jurisprudence, or rather the jurispru-

dence in this country, by saying this, and I quote:

“A different test must, therefore. be applied to

determine the navigability of our rivers, and that is

found in their navigable capacity. Those rivers must

be regarded as public navigable rivers in law which

are navigable in fact. And they are navigable in fact

when they are used, or are susceptible of being used,

in their ordinary condition. as highways for commerce,

over which trade and travel are or may be conducted

in the customary modes of trade and travel on water.

And they constitute navigable waters of the United

States within the meaning of the Acts of Congress,

in contradistinction from the navigable waters of the

States, when they form in their ordinary condition by

themselves, or by uniting with other waters. a con-

tinued highway over which commerce is or may be

carried on with other States or foreign countries in the

customary modes in which such commerce is con-

ducted by water.”

In this case we have proof by Captain Dill that dur-

ing this period of time and for many years prior thereto

he used this waterway as a regular source of travel in

the operation of his tug and the barges attached thereto,

on a regular basis for many, many years. I think that

testimony, in the absence of any testimony to the contrary,

is sufficient to meet the burden of proof in this case.

There has been no testimony to the contrary produced

for the Court by other people who might have knowledge

of the same facts. And, I can’t ignore this uncontradicted

testimony or question the truthfulness of it, where there

is no testimony to the contrary. To come to any other

aaa ee eye

PT AAS ONE LE CA eNe ha VPRO RY IR RY RT PITY

VE Re) PARR | RON Ry

A22

conclusion the Court would be required to hold that the

man was telling something that wasn’t true. I have no

reason to believe he is telling something that is not true.

So it’s upon that ground and also, generally, upon

the nature of the waterway, as shown in the photographs,

which have been introduced, with the explanation of the

changes which have been made in the waterway from

the time of this incident and the time the pictures were

taken. The fact that fishing boats and boats for personal

transportation use this waterway, along with the other

evidence, I think is sufficient to meet the burden of proof

in this case.

The Court therefore holds as a matter of fact that

the waterway on which the boat was traveling at the

time of this incident was a navigable waterway within

the meaning of the law, and, for that reason, the Court

has admiralty jurisdiction over the matter, provided the

accident or the incident which occurred constitutes a mari-

time tort.

Now, in connection with the latter point, the Court

has had that matter before him, too, on briefs. I have

read the cases which have been cited by counsel.

I want to hesitate here to compliment counsel on all

sides for the excellent manner in which this case has

been presented to the Court, both at this trial and at

previous hearings. There have been excellent counsel on

all sides of the case. The case has been well tried by

counsel, there is no doubt on that point. Counsel know

well what they are doing. It is a real pleasure to try

a case of this type with counsel who are so efficient in

the trial.

The Plymouth, 1866, 3 Wall. (70 U.S.) 20. 18 L.Ed.

125, held that the jurisdiction of the admiralty over mari-

time torts depends upon locality.

A23

This case was cited in Watz v. Zapata Off-Shore Com-

pany, a Fifth Circuit case appearing at 431 F.2d 100, de-

cided in 1970. The opinion goes on to quote from other

cases, setting out quotations from these cases. The court

then said:

“Several courts have found the conclusion ines-

capable that locality is the determining factor and

that it is not the place where the negligent acts occur

that is all important, but rather the place where the

tort occurs. A tort is deemed to occur not where

the wrongful act or omission has its inception, but

where the impact of the act or omission produces

such injury as to give rise to a cause of action.”

And of course the injuries in this incident occurred

on the river, in the boat. And, having found that the

boat was in navigable waters, under the holding of Ply-

mouth, and subsequent cases, the Court finds that the

tort committed was a maritime tort.

There is some discussion about whether there must

be some maritime connection with the transaction to justify

the holding that the tort involved is a maritime tort. Coun-

sel have cited, and I have read several times, the recent

case of John L. Peytavin v. Government Employees In-

surance Company, and others, decided by the Fifth Circuit

on January 7th, 1972. The opinion was written by Judge

Gewin. He held in that case that the circumstances in-

volved in the case did not warrant a holding that the

tort involved was a maritime tort, giving the trial court

admiralty jurisdiction.

There are a number of cases which have been decided

by the Fifth Circuit, but I don’t believe the Fifth Circuit

has actually come to grips with the primary problem

created by the Plymouth.

A24

However, in this case I hold that there was a maritime

connection with this incident; that the boat was being

used for the personal transportation of these parties on

a navigable stream, and for that reason the incident had

a maritime connection within the rule. This holding, in

my opinion, is not in conflict with the holding of Judge

Gewin in the case to which I have just made reference.

I, therefore, hold that the Court has admiralty jurisdiction

in this matter for the reason that the tort occurred on

navigable waters and because the tort was a maritime

tort.

This brings us to the question of laches. That, too,

is a troublesome question for the Court. The defendants

urge upon the Court a holding that since the actions were

not brought by plaintiffs until about five and a half years

after the incident occurred they are barred under the

laches doctrine because the plaintiffs delayed bringing the

actions for an unreasonable period of time and the defend-

ants have been prejudiced thereby, especially in view of

the fact that if the actions had been brought in the State

court or if the actions had not been within the admiralty

jurisdiction of the Court the one-year statute of limitations

would apply.

I think you must look at the facts in the case to

solve that problem, because I believe the law is well settled

that the Court is not bound by the State statute of limita-

tions. Although the one-year statute of limitations would

apply if the actions were not within the admiralty juris-

diction of the Court, the Court is of the opinion that

in determining this issue, some consideration should be

given to Mississippi’s six-year statute on general tort ac-

tions. The question as to the applicable statute is often-

times difficult for Mississippi lawyers to determine. and

certainly it would be difficult for laymen to decide be-

tween the two statutes.

A25

The evidence shows that these parties acted promptly

in connection with this matter, insofar as lay people may

be concerned. In this accident or this incident—I don’t

think it was an accident, I think it was a deliberate matter,

so far as that is concerned, all parties were probably guilty

of deliberate acts. But this incident occurred on November

27th, 1965. On December the 9th, 1965 both plaintiffs

employed a law firm in Greenville, Mississippi—Robert-

shaw and Merideth, at the time, having contacted Mr.

Merideth. They gave to him medical authorizations: they

entered into a contract with him for representation in

which he agreed to act diligently to represent their in-

terests to the best of his ability at all times.

As ordinary lay persons, dealing with a law firm with

the reputation which this law firms enjoys and enjoyed

at that time, which was and is excellent, they acted as

reasonable persons when they employed this law firm

and relied upon the firm to teke care of their interests

in the matter. They not only contracted to give the firm

contingent fees, but they also paid the firm $400 as a

retainer, to cover expenses in the case.

The evidence shows that plaintiffs followed the cases

diligently, and they contacted Mr. Merideth’s law firm

on many, many different occasions. Finally, plaintiffs de-

manded that the firm turn the case back to them, which

the firm did in 1970. Acting very promptly, after re-

ceiving the file and getting the case back in their hands,

plaintiffs went to Cleveland, Mississippi and employed the

law firm of Jacobs, Griffith and Hatcher, which, again,

was and is a firm of excellent reputation. The firm took

the case and agreed to render prompt and efficient ser-

vices in the matter. Yet, the Jacobs firm was not acting

as quickly or as fast as plaintiffs wanted it to act: and,

after contacting the firm several times about the case,

plaintiffs demanded their file and received it after the

Met

A26

file was returned to the Merideth firm by the Jacobs

firm. Plaintiffs then took the cases down to Baton Rouge,

Louisiana where they employed Mr. Henderson and his

associates. Within a month or so, or within a few days

thereafter, the cases were filed.

I am going to hold that there was no unreasonable

delay on the part of plaintiffs in bringing the actions.

To hold otherwise, I think, would be an injustice to people

who have shown themselves to be diligent in trying to

get their cases before a court of justice. But that is not

enough, of course, to justify the court to overrule the

defense of laches in this case. Plaintiffs must not only

show that there has been no unreasonable delay but also

that the delay has not resulted in prejudice to defendants.

In other words, it must appear that defendants have not

been prejudiced by the delay in the defense of the suits.

A failure to prove either of these, in my opinion, would

justify the interposition of the defense of laches.

Having dealt with the first, I now deal with the second.

The principals who are involved in this matter, Mr. Smith

and Mr. Bledsoe, were arrested for this incident. which

occurred in 1965. They were under arrest and under

indictment, as is shown by the file which has been fur-

nished the Court and which is on file in the case. The

criminal action was not tried until January 23rd, 1968,

over two years after the incident, two years and about

two or three months later.

During this period of time, facing a felony charge,

I’m sure that these defendants did not leave any stones

unturned to retain their evidence and see that none of

the evidence was misused or dissipated or anything like

that. They needed this evidence to prove their innocence.

When the criminal case came on for trial. after the

jury had been selected and the evidence had been pre-

PRS BN CRD

sacl

sented for a day, the defendants, each of them, entered

a plea of guilty to a lesser offense, that is, to assault

without intent to kill and murder. This plea brought

each of them a $250 fine. The evidence does not show,

in my opinion, that either of them has been prejudiced

by the delay. If the delay has prejudiced anyone it has

been the plaintiffs, because they have shown to the Court

that their remembrance is not as good now as it was

then on some of the immaterial, irrelevant and unimportant

matters. But the testimony on behalf of the defendants

is positive and straight. And in addition to that, if the

case had been filed and tried within a year they wouldn’t

have had the benefit of Mr. Morgan’s testimony. They

wouldn’t have had the testimony of Mr. Morgan because

Mr. Morgan only made it known recently. So, all in

all, I am going to find that under the evidence in this

case no prejudice has resulted to any of the defendants

on account of the delay. For the reasons given, I am

going to hold that the defense of laches is not applicable

in this case.

That brings us to the main point at issue, that is,

who was the aggressor in this matter. It is apparent

to the Court that the Kellys went upon property where

they knew they had no right to be; they knew that the

property was private property and under Hunting Club

supervision, and that they had no right to be on the prop-

erty. They did, however, go upon the property for either

one of two purposes, maybe both of them. They went

on the property that afternoon, the four of them, primarily

to hunt deer, and did hunt deer but did not kill any

deer. I am inclined to believe, and so hold, that they

had in mind also that they might locate some place where

they might have a chance to hunt ducks from that island.

However, while their boat was tied up at the dead

trees in the water, at this landing place, their presence

ae a a aie.

OLE LMM IOTS PTE ING LOTTE OTM EM Ee

Kerner e

A28

was discovered by some of the club members who were

in a plane flying over the island. This fact was com-

municated to Mr. Smith, and at Mr. Smith’s request, Mr.

Bledsoe took him in his, Mr. Bledsoe’s automobile, into

the interior of the island. I believe the facts show that

the lodge is located on the north part of the island. Any-

how, they came in contact with these people. And the

Kellys, upon seeing the plane come over the island two

or three times, I think comprehended that their presence

had been made known to the caretaker of the island and

they attempted to get in their boat and get away.

They then left the place where they were docked,

got out into the river, and, as they were traveling along

the river, the Court holds it to be a fact that they were

fired upon by Smith and Bledsoe. I realize the testimony

in this case is conflicting. The Court has to make a credi-

bility choice of the evidence. In other words, I have

to adopt the testimony which I feel to be more reasonable

in the matter.

The burden of proof is upon the plaintiffs of course,

in this case to show that they were unjustly attacked.

I think the proof in the case shows, and I so find,

that as the Kellys were moving southward in their boat

Mr. Smith and Mr. Bledsoe stopped their automobile, got

out of it, came to the top of the bank with guns, and

Mr. Smith fired a shot toward the boat, across the bow,

which of course indicated that he wanted them to stop.

Then he motioned for them to come over. He might

also have asked them to do this. I don’t believe the

Kellys could understand what he was Saying, or if he

Was saying anything that they could hear it. When this

happened, and they didn’t stop, Mr. Smith fired another

shot into the water next to the boat.

1 q

In the meantime Mr. Kelly, Senior, had arisen in the

boat and had indicated to Mr. Smith and Mr. Bledsoe

that he wasn’t going to come to the bank. He proceeded

to go full steam ahead and tried to get out of range,

at which time Mr. Smith and Mr. Bledsoe fired again

at the Kellys. One shot from one of the guns entered

the boat, going into Mr. Kelly’s ankle, and out of Mr.

Kelly’s ankle into the ankle of his son, who, of course,

was in the boat.

After that occurred the youngest Kelly, being, I believe

15 or 16 years old at the time, returned the fire by several

shots from the shotgun. Although the Kellys were illegally

on the island—they were in fact trespassers—I don’t be-

lieve Mr. Smith or Mr. Bledsoe had the right to shoot

at them or to use their guns in an attempt to stop them

and bring them ashore by the use of their weapons. Con-

sequently, I hold that both of them are liable to Mr.

Kelly and his son who brought these actions for whatever

damages they are entitled to recover.

That brings us to the proposition of whether Mr. Smith

and Mr. Bledsoe’s actions on that occasion can be trans-

mitted to two companies—Chicot Land Company and An-

derson-Tully Company—the question of whether either

one or both of them may be vicariously liable to the

Kellys for the conduct of Smith and or Bledsoe, whether

the doctrine of respondeat superior applies.

I think the evidence in this case is conclusive that

Mr. Smith, through Chicot Land Company, controls the

hunting rights on this island. He has controlled the hunt-

ing rights on the island for many, many years. I think

he arranged with Anderson-Tully Company to place the

rights in the name of Chicot Land Company so that he

might have control of the rights as long as he lived and,

if anything happened to him, Mr. Pine could have them.

ptt

See Ae ke tes Wk

rey

TRETOTRETIT IL ROD WTC TCL MITT

A30

The Court believes that they are valuable rights, and I

think these rights were placed in the name of Chicot

Land Company for that purpose.

These parties, Smith and Chicot Land Company per-

mitted the hunting club to use the hunting rights under

certain conditions, where the hunting club would pay the

costs of the hunting rights and the charge by Anderson-

Tully. In addition to that, the club paid Mr. Smith $150

a month and assumed all expenses in connection with

the maintenance of roads and fire lanes on the property.

Primarily, I think Mr. Smith, through the Chicot Land

Company, owned and controlled these rights, and Mr. Pine

holds 51 percent of the stock of that company. He is

President of it and, in addition to that, a director.

The land company is authorized under its charter of

incorporation to engage in this kind of activity if it de-

sires to do so. If there is nothing to prevent it under

the law, they can do it. I therefore hold that the land

company, Chicot Land Company, is vicariously liable under

the doctrine of respondeat superior for the acts of Mr.

Smith and Mr. Bledsoe, because Mr. Bledsoe was acting

under the instructions and at the request of Mr. Smith

in the matter upon which they were engaged, or the matter

of defending or trying to defend and protect the hunting

rights on the island. I therefore find that the land company

is jointly and severally liable with Mr. Smith and Mr.

Bledsoe.

Now, with reference to Anderson-Tully Company, un-

der all the facts and circumstances in this case I do

not feel that there is any liability on it for the acts of

these parties. I think the testimony is clear that Mr.

Smith and Mr. Bledsoe were acting, not on behalf of Ander-

son-Tully to protect its rights, but acting so as to protect

A31

the hunting rights that Mr. Smith himself held or at least

held with Mr. Pine and his company.

My holding is reinforced in that regard because of

the fact that the real difficulty occurred after the Kellys

had left the island. They were then in a navigable river

and, so far as any danger to the timber or things of

that nature was concerned, that had been brought to an

end. The Kellys were leaving the island and were in

navigable water. I think the connection of Mr. Smith

and Mr. Bledsoe, at the time, with the matter was to

get the Kellys in to the island so they could find out

who they were and either confront them with the fact

that they were hunting on the island in violation of the

private rights of other parties or possibly to arrange for

their arrest and prosecution for hunting or for trespassing

on the land.

So, Mr. Smith and Mr. Bledsoe were not acting, in

my opinion, within the scope of any duty imposed on

them, or either of them, under the lease with Anderson-

Tully or under any appointment that might have been

made to Mr. Smith by Anderson-Tully as a caretaker of

the island.

Gentlemen, I think that disposes of all the justiciable

issues involved in the case except possibly the matter

of damages. Now, I think that under the agreement, or

at least the statement that has been made by Doctor Boyd’s

attorney, I believe you gentlemen have agreed to take

the deposition of Doctor Boyd, and possibly the other

doctors at Campbell’s Clinic, in order to prove the extent

of the injuries received by Mr. Kelly, Senior. and in order

to give the Court some foundation upon which to fix

the amount of damages in the case.

SOREL St ORCA SY Mt BIH IAL I eke |

A32

After that has been concluded, and you can give the

Court a copy of the deposition, I will ask counsel, if they

will, to give me a short memorandum of authorities with

reference to the damages which the plaintiff claims and

the elements of damage which may be authorized by law

under the Court’s holding.

I will withhold the entry of a final order in the case,

or judgment in the case, either for Mr. Kelly. Senior,

or the other Mr. Kelly, the other plaintiff in the case,

until that comes in. I will go ahead and enter the two

judgments by default in the case that I have already

indicated.

A33

APPENDIX “D”

IN THE

“ te ee

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF MISSISSIPPI

GREENVILLE DIVISION

ALLEN EUGENE KELLY, SR.,

Plaintiff,

J. C. SMITH, BILLIE H. BLEDSOE,

CHICOT LAND COMPANY, INC.,

and ANDERSON-TULLY COM-

PANY,

Defendants.

GARLAND WAYNE KELLY, }

Plaintiff,

Vv.

J. C. SMITH, BILLIE H. BLEDSOE,

CHICOT LAND COMPANY, INC.,

ANDERSON-TULLY COMPANY

and WOODSTOCK HUNTING

CLUB,

Defendants.

ALLEN EUGENE KELLY, S8&.,

Plaintiff,

J. C. SMITH, BILLIE H. BLEDSOE,

CHICOT LAND COMPANY, INC.,

ANDERSON-TULLY COMPANY

and WOODSTOCK HUNTING

CLUB,

Defendants. :

(Consolidated Cases)

No. GC 71-5-S

No. GC 71-18-S

No. GC-71-19-S

PBMC, BR re

wre

PRE rth LHR OREN NPN ER MEL CINE OE ETE), MERON ER OPN IN)

cot Mats 97) penta

Bovven ere Pe tet Roe Sa a es

A34

MEMORANDUM OF DECISION

(Filed June 29, 1972)

The final question for decision by the Court relates

to the quantum of damages which plaintiffs are entitled

to recover.

After a careful consideration of the evidence submitted

to the Court on the trial of the case, deposition of Dr.

Harold B. Boyd and memorandums of the parties, the

Court makes the findings of fact and conclusions of law

which follow.

Plaintiff, Allen Eugene Kelly, Sr., (Mr. Kelly) suf-

fered an injury to his right ankle as the direct and proxi-

mate result of the gunshot wound received by him on

November 27, 1965. The bullet entered, passed through

and destroyed the ankle. The bottom of the tibia, the

bottom of the fibia and the top of the talus were torn

away. Parts of the bullet exited on the side opposite the

point of entrance. A large portion of the bone and tissue

were destroyed and foreign matter was carried into the

bones of the ankle. A large amount of blood was lost

and one of the arteries supplying blood to the foot was

irreparably damaged.

Mr. Kelly was carried-to the hospital in Greenville,

Mississippi, where he was attended by Dr. Thomas G.

Barnes, a surgeon connected with Gamble Brothers and

Archer Clinic. Mr. Kelly remained in the hospital for

severe: weeks and continued to suffer from his injured

ankie. On August 3, 1966 Dr. Barnes referred Mr. Kelly

to Campbell's Clinic in Memphis, Tennessee, where he

was attended by Dr. Harold B. Boyd, an orthopedic surgeon

on the clinic’s staff. Dr. Boyd performed an ankle fusion

on Mr. Kelly’s ankle on or about November 7, 1966. As a

result of the fusion Mr. Kelly’s leg is shorter than the

A35

other one. This condition has caused Mr. Kelly to have

back trouble, the nature of which is said by Dr. Boyd

to be a back strain. The gunshot wound received by

Mr. Kelly has resulted in a chronic infection of the ankle.

Intermittently, the ankle becomes red, swollen and in-

fected. Mr. Kelly can obtain relief only by a rupture

of the swollen ankle or by an incision to drain the sinus.

During these episodes Mr. Kelly runs a fever and is in-

capacitated.

Mr. Kelly’s physicians estimate that he has suffered

a fifty five percent (55% ) disability of the foot and ankle,

and approximately a twenty percent (20%) disability of

the body as a whole. Before his injury Mr. Kelly worked

for Swift and Company, at Greenville, Mississippi, as a

shipper-receiver. In this work Mr. Kelly was required

to walk and stand and be on his feet on damp floors

for a large portion of the work day. Mr. Kelly had worked

for Swift and Company in this position for twenty-six

vears before he received the injury. After being injured,

Mr. Kelly went back to work but was unable to perform

his regular duties and was assigned to a desk job. Mr.

Kelly worked until March 21, 1969, but on the advice

of his attending physicians he has not worked since that

time.

Swift and Company paid Mr. Kelly his full salary

of $437.50 per month through October 16, 1969 and then

$218.75 per month from October 17, 1969 through April

23, 1970. Mr. Kelly is now on a pension with Swift and

Company, the amount being $113.60 per month.

The Court finds from all of the evidence in the case

that Mr. Kelly has suffered and will continue in the future

to suffer extreme and excruciating physical pain and

anguish as the direct and proximate result of the injury

PRR ME

LAL WORT RG TEAL EIT Ah HIRD TINTS ORAM Mp Zo ROE OY GH

py pt PUNE RNa

A36

received by him. Also as the direct result of his injuries,

Mr. Kelly has suffered a loss of wages and will continue

to suffer a loss of wages, as his earning capacity and

ability to work has been seriously impaired.

Mr. Kelly is now fifty-eight years of age. Prior to

his injury he was active in his work and engaged in other

pursuits which he cannot now pursue on account of his

physical condition brought on by his injuries. Mr. Kelly’s

earnings, at the time of his injury, was $5,252.00 per year.

He claims that he has suffered a loss in wages from March

21, 1969 to the present in the sum of $11,379.00. Swift

& Company gratuitously paid Mr. Kelly his full salary

from March 24, 1969 to October 16, 1969 and a portion

of his salary from October 17, 1969 through April 23,

1970. Mr. Kelly now draws a pension from Swift &

Company in the amount above mentioned. Such payments

by Swift & Company do not justify a claim on the part

of defendants for an offset against the amount which they

would otherwise owe him on account of his injuries.

Mr. Kelly also claims loss of future wages in the

sum of $35,889.00. The amount is calculated at the rate

of $5,252.00 per year for six years and ten months. Mr.

Kelly will become sixty-five years of age at the end of

that period.

The Court does not. however, believe that Mr. Kelly

has suffered a total permanent disability. The Court finds

that Mr. Kelly has suffered an impairment in his ability

to work, with resulting loss to wages, to the extent of

fifty to sixty percent. Mr. Kelly’s work required him

to stand, walk and be on his feet most of the time. He

can no longer perform work which requires such activities

on his part. When Mr. Kelly’s ankle is draining he cannot

perform work of any kind. Between draining episodes,

~ rae SE, NE

A37

however, the proof shows that he can do sedentary work.

Mr. Kelly’s work experience and the education which he

has do not qualify him to perform sedentary work which

would be highly remunerative.

Considering all aspects of the case, the Court finds

that Mr. Kelly has suffered a loss of past and future

wages, including permanent partial disability, in the sum

of $35,000.00.

The Court finds that Mr. Kelly is entitled to recover

for medical expenses incurred for the treatment of his

injuries in the amounts as follows:

Kings Daughters Hospital

Greenville, Mississippi $1,167.27

Drs. Gamble Brothers and Archer

Clinic (Dr. Thomas G. Barnes),

Greenville, Mississippi 630.00

Baptist Memorial Hospital

Memphis, Tennessee 333.95

Campbell Clinic (Dr. Harold B. Boyd

and others), Memphis, Tennessee 2,584.92

Anesthesiologist 45.00

Drug Bills 11.26

Total $4,772.40

For the physical pain and suffering Mr. Kelly has en-

dured and will continue to endure in the future as result of

his injuries, the Court finds, after considering all of the evi-

dence in the case, that Mr. Kelly is entitled to receive com-

pensation in the sum of $30,000.00.

In summary, the Court fixes the damages to which

Mr. Kelly is entitled as follows:

PN NG POR: PRAY YS AIR LD PY d HB A 0t

A38

1) Loss of past and future wages,

including permanent partial

disability, the sum of $35,000.00

2) Pain and suffering, past and

future, the sum of 30,000.00

3) Medical and hospital expenses,

the sum of 4,772.40

Total recovery $69,772.40

Garland Wayne Kelly was injured by the bullet, but

his injury was not serious and was temporary in nature.

The Court finds that Garland Wayne Kelly is entitled to

recover damages, as follows:

1) Loss of wages $ 312.48

2) Medical expense, King Daughters

Hospital and Gamble Brothers

Clinic (Dr. Barnes) 281.48

3) Pain and suffering 2,000.00

Total recovery $2,593.96

On the issue of interest, the Court does not feel when

all things are considered, that plaintiffs are entitled to pre-

judgment interest.

The evidence in the case shows that Mr. Kelly was

knocked down in the Kroger store in Greenville, Missis-

sippi on an occasion after he received his injury. The

Court has considered this incident and does not find that

contributed to his disability.

Appropriate judgments will be entered by the Court.

Mr. Kelly received an injury on this occasion which has

This, the 27th day of June, 1972.

A39

JUDGMENT (GC 71-5-S and GC 71-19-S)

(Filed June 29, 1972)

The above numbered and captioned actions, consoli-

dated by the Court for trial, came on for hearing before

the Court, Honorable Orma R. Smith, District Judge, pre-

siding, and the issues having been duly heard and a deci-

sion having been duly rendered, it is

ORDERED AND ADJUDGED:

1) That the plaintiff, Allen Eugene Kelly, Sr., re-

cover of defendants, J. C. Smith, Billie H. Bledsoe and

Chicot Land Company, Inc., jointly and severally, the sum

of SIXTY NINE THOUSAND, SEVEN HUNDRED SEV-

ENTY TWO DOLLARS AND FORTY CENTS

($69,772.40), with interest thereon at the rate of 6% per

annum from this date until paid, and costs of his action;

2) That plaintiff, Allen Eugene Kelly, Sr., take noth-

ing from the defendant, Anderson-Tully Company, and

the said actions shall be, and they hereby are, dismissed

on the merits in respect to defendant, Anderson-Tully

Company, and the defendant, Anderson-Tully Company,

recover of the plaintiff, Allen Eugene Kelly, Sr., its cost

incurred herein.

This, the 27th day of June, 1972.

v VOWS: 1 OR ye

ile

DN MEER OOS

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ean oT Be

A40

JUDGMENT (GC 71-18-S)

(Filed June 29, 1972)

This action came on for trial before the Court, Honor-

able Orma R. Smith, District Judge, presiding, and the

issues having been duly tried and a decision having been

duly rendered, it is

ORDERED AND ADJUDGED:

1) That the plaintiff, Garland Wayne Kelly, recover

of defendants, J. C. Smith and Chicot Land Company, Inc.

jointly and severally, the sum of TWO THOUSAND, FIVE

HUNDRED NINETY THREE DOLLARS AND NINETY

SIX CENTS ($2,593.96), with interest thereon at the rate

of 6% per annum from this date until paid, and his cost of

action; and

2) That plaintiff, Garland Wayne Kelly, take noth-

ing from the defendant, Anderson-Tully Company, and

the action be, and hereby is, dismissed on the merits in re-

spect to the defendant, Anderson-Tully Company, and that

the defendant, Anderson-Tully Company, recover of plain-

tiff, Garland Wayne Kelly, its cost incurred herein.

This, the 27th day of June, 1972.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.