Ellen Emerson v. Holloway Concrete Products Company, Inc. ( 1960 )

JONES, Circuit Judge.

The appellee, Holloway Concrete Products Company, Inc., will herein be referred to as Holloway. It engaged in the concrete business and in the distribution of building material. Its principal place of business was at Orlando, Florida. Franklin Williamson was its president and general manager. Thomas C. Ross was its construction engineer. In the spring of 1954 Williamson negotiated for Holloway the purchase of the 27-foot inboard cruiser, the Overtime. The boat was powered by a gasoline motor. When not in use it was berthed at the Sanford Boat Works in Sanford, Florida. The boat was used, for a time after it was purchased, for the pleasure of Williamson and for the entertainment of customers. For about a year prior to July 4, 1957, the use of the boat by Williamson was negligible. Ross was free to use the boat and did frequently use it for himself and his family, and from time to time they would take customers or prospective customers of Holloway out on the boat. Ross, with the acquiescence of Williamson, assumed the responsibility for the maintenance of the boat.

On July 3, 1957, Ross was using the boat and had trouble with the bilge pump. The following day he went to the boat yard to remove the pump in order to have it repaired. At the invitation of Ross, his personal and business friend, Francis Emerson, went with him. Emerson was an architect practicing in the area in which Holloway was engaged in the concrete and building materials business. When Ross and Emerson went on the boat, it was found that water was standing in the bilge and Ross decided to pump the water out before removing the pump. The pump was electrically operated. In order to avoid draining the power of the batteries while operating the pump, Ross chose to run the engine so that the generator might keep the batteries charged. The electric hookup was such that one or the other of the two batteries might be operated but in normal operation both batteries were not in use at any one time. Ross attempted unsuccessfully to start the motor with one of the batteries. He then threw a switch which cut that battery out and cut the other in. It also was too weak to start the motor. He then concluded that both batteries should be hooked together to get the engine running. This was not an unusual practice and a jumper wire was kept on board for that purpose. R^ss knew, as did Williamson, that sparks would or might fly off as this operation took place. Starting the motor by the use of the jumper wire required two people, one to hold the wire against the poles of the batteries and the other to manipulate the starting mechanism. Ross asked Emerson to assist. As Ross was explaining the method of hooking the batteries together and showing him the process, an electric spark caused an explosion of gas in the boat’s bilge, the boat took fire, burned, and sank. Emerson died from injuries received by him.

Judicial proceedings were initiated by the filing by Holloway of a petition for exoneration and for limitation of liability, under the Limitation of Shipowners’ Liability Act, 46 U.S.C.A. § 182 et seq. A claim for damages to another boat was listed with the claim of Ellen Emerson, wife of Francis Emerson, for the wrongful death of her husband. Holloway proposed to convey the boat, then and thereafter at the bottom of the water in which it sank, to a trustee in discharge of its liability. Mrs. Emerson answered charging unseaworthiness and negligence, and denied the right of Holloway to the benefit of the limitation of liability. Mrs. Emerson filed a claim against Holloway for the negligent death of her husband asserting he was an invitee, that Holloway’s negligence caused his death, and claimed damages in the amount of $200,000. To this claim Holloway filed an objection, saying its boat was seaworthy, and that the invitation of Ross to Emerson was not made in the scope of the employment of Ross. There was a denial of negligence of Holloway and its agents and employees.

The district court found that Ross, as an agent and employee of Holloway, had custody of the boat. It was found that Emerson voluntarily accompanied Holloway’s agent Ross upon the boat, and that Ross, the agent of Holloway, was not guilty of any gross or wanton negligence with respect to Emerson. Having so found, the court determined as a matter of law that the claim of Mrs. Emerson had not been established. This appeal followed. On appeal it is urged that the question whether there is liability of Holloway to Mrs. Emerson is to be determined by the law of Florida; that Emerson was an invitee upon the boat but, whether he was an invitee or licensee, Holloway owed him a duty of reasonable care; that this duty was breached; that Emerson’s death resulted from the negligence of Holloway’s agent and employee; and that recovery should not be denied to Mrs. Emerson. The district court denied the petition of Holloway for limitation of liability. No appeal is before us with respect to this ruling.

The common law allowed no recovery for wrongful death. Dean Prosser has stated the rule and observed, “The result was that it was more profitable to kill the plaintiff than to scratch him, and that the most grievous of all injuries left the bereaved family of the victim, who frequently were destitute, without a remedy.” Prosser on Torts, 2d ed. 710. And so in admiralty, in the absence of statute, the death of a person did not give rise to a cause of action, Norris, Maritime Personal Injuries, 361 et seq., § 125; The E. B. Ward, Jr., C.C., 16 F. 255. The remedy in England was provided by Lord Campbell’s Act and each of the states has enacted a wrongful death statute. In the area of admiralty the Congress has created a cause of action for the death of seamen by the Jones Act, 46 U.S.C.A. § 688. A remedy for death on the high seas is provided by a statute known as the Death on the High Seas Act, 46 U.S.C.A. § 761 et seq. Emerson was not a seaman and the injury resulting in his death occurred on inland water. Neither of these statutes is available to Mrs. Emerson. Nor is she entitled to death benefits from the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A. § 901 et seq.

Where death occurs on, or as a result of injuries received on navigable waters within a state, as was the case here, admiralty jurisdiction exists to enforce the right created by the state statute. Where the injured person survives and is the plaintiff or libellant in admiralty the principles governing are the rules of maritime law rather than the state substantive law and the duties of the shipowner are not limited by the law of the state. From this it follows that the person injured has a right to a seaworthy ship, and common law distinctions between licensees and invitees are inapplicable. Kermarec v. Compagnie Generate Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550. But where the action is for wrongful death the liability, although established and enforced in admiralty, is to be measured by state standards, and the issues are to be determined in accordance with the substantive law of the state. Any defenses which are available under the law of the state may be successfully interposed in the admiralty proceeding. Goett v. Union Carbide Co., 361 U.S. 340, 80 S.Ct. 357, 4 L.Ed.2d 341. Hess v. United States, 361 U.S. 314, 80 S.Ct. 341, 4 L.Ed.2d 305; The Tungus v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524; Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210; Graham v. A. Lusi, Limited, 5 Cir., 1953, 206 F.2d 223; Graff v. Parker Bros. & Co., 5 Cir., 1953, 204 F.2d 705; Quinette v. Bisso, 5 Cir., 1905, 136 F. 825, 5 L.R.A., N.S., 303; 1 Benedict on Admiralty, 6th Ed. 392 § 148; Norris, Maritime Personal Injuries, 373 et seq. §§ 130, 131. This is true unless the state law has adopted the general maritime concepts of negligence applicable in the case of death resulting from a maritime injury, rather than its own standards of negligence liability. Goett v. Union Carbide Corp., supra.

The State of Florida has had for many years a statute¹ providing for an action by libel in rem or in personam by a widow² for the death of her husband caused by the negligence of a boat or of a person employed thereon. As the appellant has recognized, the problem here is to determine what law the courts of Florida would apply to the facts in this case if the case were presented in the courts of that state as an action for wrongful death. Such is the principle applied in the case of Graham v. A. Lusi, Ltd., supra, where it is held:

“The statute must be applied in admiralty just as if the suit had been brought in the state courts, and any defenses which are open to the appellee under the jurisprudence of the state, if successfully maintained, will bar recovery under the libel.” 206 F.2d 223, 225.

In the Graham case the widow of the decedent sought to recover upon a showing that the injury resulting in death was caused by unseaworthiness. Under the maritime substantive law unseaworthiness would have given the injured person a right of action even though the injured plaintiff was guilty of contributory negligence and the defendant shipowner had used due care. In holding contrary to the plaintiff’s contentions, this Court, in the Graham case, said:

“There is a complete absence of merit in appellant’s attempt to avoid the foregoing defenses by invoking a right of action for unseaworthiness which, being a right of action the deceased might have maintained had he simply been injured and lived, is clearly not preserved by the legislative enactment under which appellant proceeds.” 206 F.2d 223, 225.

As in the Graham case where unseaworthiness alone did not allow recovery under the Florida statute and contributory negligence could be asserted as a defense, so here the defendant shipowner must be permitted to assert whatever distinction there may be under the Florida law between the duty owed to an invitee and the duty owed to a licensee.

The answers to the state law questions seem to be found in the recent opinion of District Court of Appeal of Florida in the case of Cochran v. Abercrombie, 118 So.2d 636, 637. In its opinion the Florida precedents are discussed and the principles of the law of that state which control our decision are set forth. There the plaintiff alleged that he went to the residence of the defendant for the purpose of discussing a proposed fishing trip. While there the defendant requested the plaintiff to step over to the carport for the purpose of looking over the motor of the defendant’s automobile. The defendant raised the hood and, while leaving the plaintiff in front of the car observing the motor, which was not then running, the defendant opened the car door and engaged the starter of the car which was in forward gear. The car lurched forward injuring the plaintiff. The complaint alleged that the defendant’s conduct was done negligently and without warning. The factual similarity to the ease before us is apparent. The Florida trial court held that there could be no recovery because the plaintiff was merely a licensee to whom the defendant owed no greater care than to refrain from wilfully or wantonly causing him injury. The trial court dismissed the complaint and the District Court of Appeal affirmed.

The courts of Florida make a distinction between the duties owed by the owner or occupier of property to trespassers, licensees and invitees. The duties owed to each of these classes are set forth in the court’s opinion in Cochran v. Abercrombie, supra, by the following quotation from McNulty v. Hurley, Fla., 97 So.2d 185:

“ ‘The duty owed by the owner or occupant of premises to each class of persons is also distinct. The duty owed by the owner or occupant to the trespasser is to refrain from committing a wilful or wanton injury against him with the rule being softened after discovery by the landowner of peril to the trespasser. Byers v. Gunn, Fla.1955, 81 So.2d 723.

“ ‘The duty owed a licensee is to refrain from wanton negligence or wilful misconduct which would injure him, or to refrain from intentionally exposing him to danger. City of Boca Raton v. Mattef, Fla. 1956, 91 So.2d 644. There may be a further duty to the licensee to warn him of a defect or condition known to the owner or occupant to be dangerous when such danger is not open to ordinary observation by the licensee. [Citing authorities.]

“ ‘A greater duty is owed to an invitee than to either of the other class of persons above mentioned. The. owner or occupant owes an invitee the duty of keeping the premises in a reasonably safe condition, and, as plaintiff contends, also to guard against subjecting such person to dangers of which the owner or occupant is cognizant or might reasonably have foreseen.’ ” [Citing authorities.] 118 So.2d 636, 637.

The Florida court, in its Cochran v. Abercrombie opinion, had occasion to define “licensee” and to distinguish a licensee from an invitee. The Court said:

“A ‘licensee’ has been broadly defined as ‘a person who enters upon the property of another for his own convenience, pleasure, or benefit.’ Stewart v. Texas Co., Fla.1953, 67 So.2d 653, 654. ‘An invitee is normally considered to be one who enters upon the premises of another for purposes connected with the business of the owner or occupant of the premises.’ City of Boca Raton v. Mattef, Fla., 1956, 91 So.2d 644, 647. That the plaintiff was a licensee on the facts stated has been determined by the trial court, and this, we think, is well supported by the cases collected in 25 A.L.R.2d 598, notwithstanding the fact that at the time of his injury he was carrying out a request by the defendant. The courts of various jurisdictions have held that incidental motives of the visit of a social guest, other than purely social ones, will not be sufficient to characterize the visitor as an ‘invitee’. These cases also indicate that minor services performed by the guest for the host during the visit will not be sufficient to change his status from licensee to invitee or business visitor.” 118 So.2d 636, 637-638.

Although the decedent, Emerson, at the time of receiving the injury that resulted in his death, was carrying out a request of his host and performing a minor service for him, Emerson was nevertheless a licensee and not an invitee. There was no wilful or wanton misconduct and no condition of danger known to Ross of which he should have warned Emerson. Under the law there can be no recovery and that law is controlling of our decision.

The appellant makes one further point by urging that there was negligence of Ross which was affirmative or active and that in such a case recovery may be had even though there was no wilful or wanton negligence or misconduct. This doctrine and the application of it, or rather the lack of application of it in Florida, is also discussed and decided in Cochran v. Abercrombie, supra. From that opinion we again quote:

“Many jurisdictions follow the rule that the possessor is under a duty to both licensees and trespassers to abstain from ‘active’ as opposed to ‘passive’ negligence. Some of the cases clearly distinguish this rule from the ‘wilful and wanton injury’ rule. Other cases combine the two rules, without distinction. In support of the classification of active and passive negligence the plaintiff has called our attention to the annotation which appears in 156 A.L.R. at page 1228, where the annotator has cited cases decided by the U. S. Courts of Appeal and the Courts of California, District of Columbia, Nevada, Illinois, Minnesota, New York, North Carolina-and Pennsylvania.

“While no Florida cases have been cited in the briefs of either plaintiff or defendant where the facts are similar to those in the instant case, we feel that the case of Pensacola, St. Andrews & Gulf S.S. Co. v. Austin, 1912, 63 Fla. 241, 58 So. 611, 613, precludes our adopting the ‘active’ and ‘passive’ negligence theory which is urged by the plaintiff. In that case the negligence of the defendant can be classified as ‘active’, although the words ‘active’ and ‘passive’ were not used to distinguish the types of negligence. The negligence involved in the instant case would undoubtedly be held in the jurisdictions which have adopted the ‘active’ and ‘passive’ negligence theory to be ‘active’ negligence. Following the reasoning in the Pensacola, St. Andrews & Gulf S.S. Co. v. Austin case, supra, then, we must decline to adopt from other jurisdictions the ‘active’ and ‘passive’ negligence theory.” 118 So.2d 636, 638-639.

Since the Florida court has declined to adopt the “active” and “passive” negligence theory we cannot apply it in a case which is governed by the laws of that state.

From what has been said it follows that the judgment of the district court must be and it is Affirmed.

1 . “Whenever the death of any person in this state shall be caused by the wrongful act, negligence, carelessness or default of any individual or individuals, or by the wrongful act, negligence, carelessness or default of any corporation, or by the wrongful act, negligence, carelessness, or default, of any agent of any corporation, acting in his capacity of agent of such corporation (or by the wrongful act, negligence, carelessness or default of any ship, vessel or boat or persons employed thereon), and the act, negligence, carelessness or default, is such as would, if the death had not ensued, have entitled the party injured thereby to maintain an action (or to proceed in rem against the said ship, vessel or boat, or in personam against the owners thereof, or those having control of her) and to recover damages in respect thereof, then and in every such case the person or persons who, or the corporation (or the ship, vessel or boat), which would have been liable in damages if death had not ensued, shall be liable to an action for damages (or if a ship, vessel or boat, to a libel in rem, and her owners or those responsible for her wrongful act, negligence, carelessness or default, to a libel in personam), notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony.” Fla.Stat.1959, § 768.01, F.S.A.

2 . Fla.Stat.1959, § 768.02, F.S.A.