Kathleen Troupe v. Chicago, Duluth & Georgian Bay Transit Company

finding by аs been Tax Court to court a stage The any proceedings. paid any portion the at- what the amount of it it or mentioned never acted paid torneys was for connec- portion attor- services that It is clear its decrees. of tion with the divorce and what expended effort neys no the husband for conserving of was for the hus- services or maintenance in the conservation propеrty. by the conditions band’s of stat- None property, as envisioned his which formed the basis for the decision controversy hus- between ute. The in the Baer now case exists case several over extended band and wife years. litigation included, before us. besides brought by discussed, a suit judgment herein The of Tax af- Court he which court husband in another firmed. unsuccessfully sought mar- have his to Affirmed. riage The void. his wife declared to through- attorneys represented him pre- directed to were Their services out. being imposed upon venting any liability support, and for his wife’s husband paid. An- were is this for which why petitioner’s claim other reason rejected is the fact to be would have by paid any part him of the fee even if TROUPE, Kathleen Plaintiff- attorneys said to be his could be to Appellant, conserving property, no his services part what been made to show effort has CHICAGO, DULUTH GEORGIAN paid be allotted to should of the sums COMPANY, BAY TRANSIT Certainly purpose. not all of the that attorneys’ Defendant-Appellee. contem- were such as services No. Docket 23475. (2), 23(a) plated and unless and Sec. part of sums shown what until it is Appeals of United States Court part applicable paid to of them Second Circuit. upon which is no basis their efforts there Argued March grant a dеduction. Decided June Commissioner, 8 The of Baer v. case petitioner cites which his in connection with this element claim, application here. In that has little wife, suing divorce,

case demand- property lump a a sum

ed settlement in large very point- amount. ed that this could not have out demand except by dis- the husband

been met posal large part such a his assets a destruction of busi- threaten which his derived.

ness from income was noted that

It was further husband right the wife’s had contested and that there little occa-

divorce the services his counsel in the

sion for proceeding proper; and

divorce attorneys large- of his services been protecting

ly devoted husband's against

estate the financial demands of ‍‌‌​​‌​​​​‌​‌‌‌‌‌​‌‌‌​‌​‌​​‌‌​‌​​‌​‌​​​​‌​‌‌​‌‌​​‍In also this case there had

the wife. Cleveland, Eldridge Sampliner, Ohio S. City, Goldstein,

(Harvey York New counsel), plaintiff-appellant. for Schumann, Lucking, & Auken De- Van Kenefick, Baas, Letchworth, troit, Mich., Buffalo, Phillips, (Allan Baldy N. Y. Detroit, Miller, Mich., Robert M. C. counsel), Hitchcock, Buffalo, Y., N. defendant-appellee. FRANK, LUMBARD Before Judges. WATERMAN, Circuit WATERMAN, Judge. general Circuit ness under the maritime law.1 Consequently, both and un- May 14, 1952, On defendant’s vessel simultaneously seaworthiness were America, tried passenger South a Great Lakes to a fitting-out accordance the custo- steamer, undergoing was final mary practice in this Circuit.2 The preparation sailing its first maintenance-and-eure count was not sub- mitted to the Plaintiff, 1952 season. a stewardess judge, but tried to the going vessel, aboard the about her who awarded in addi- stairway $800.00 slipped duties when she $1,576.03 already tion to which she had assigned outside one of her cabins received. deck, breaking fell her arm suffering stairway injuries. other The plaintiff’s case, At the close of de- length steps, consisted of three with full fendant moved for a directed verdict steps, handrails on either side. The ground negligence, the issue of on the days painted pre- which had been several negligence shown, and, that no had been viously grey paint, deck Were of addition, in moved for a directed verdict safety steel construction with a diamond unseaworthiness, on the issue of on the pressed tread into the steel. Plaintiff that there was no unseaworthi- damp steps testified that rain, from were ness because the vessel was nоt in navi- safety gation that tread had been injury at the time of and that by repeated painting, filled and that the proof there was no of unseaworthiness. steps exceedingly slip- were smooth and The trial court denied both motions after pery. She admitted that she had used plaintiff counsel for both and defendant many and same identical times respective had op- stated their views in previous over six seasons and that she position to and in favor of the motions. safely negotiated several them times At the end of the after all the evi- day on the of the accident. received, dence had been the defendant motions, they renewed his and were brought complaint, law, The stated again Subsequently, denied. negligence (1) two causes of action: judge apparently changed his mind on Act, under the Jones 46 U.S.C.A. § thе motion for a directed verdict on the (2) maintenance and cure under the charg- unseaworthiness, issue of for he general addition, maritime law. In “ * * * ed the as follows: complaint alleged plaintiff’s that fall and my view that the evidence does not show resulting injuries were caused defend- ship unseaworthy. that itself was negligence “maintaining, equip- ant’s in my That is instruction as to the evidence ping, providing said vessel with a nеgligence in the case.” The issue was freshly painted shiny smooth, exces- jury, then submitted to the which re- sively slippery step.” turned a verdict for defendant.

Although the record contains some confusing language appeal plaintiff On ques- this the effect does not relying solely theory tion cure, the award for on a maintenance and negligence, apparently but seeks a new trial on the trial above-quоted allegation unseaworthiness. She considered the relies for reversal following alleged raising properly (1) on the issue unseaworthi- errors: practice Lopoczyk Poling, Inc., similar A. v. Chester the First See Circuit. 457; Krey predicated Cir., The Third Circuit has 152 F.2d v. its practice trying negligence Cir., 1941, 123 F.2d and unsea United 1008; Ship simultaneously claims worthiness Moltke v. Intercontinental to the F.Supp. ping Corp., D.C.S.D.N.Y.1949, pendent on the doctrine jurisdiсtion, Walling, Cir., Jordine v. v, Dann, 185 F.2d 662. Cf. Yates Cir., Lykes Co., Bros. 2 Balado v. S.S. 2. See McLeod v. practice Barge Co., ‍‌‌​​‌​​​​‌​‌‌‌‌‌​‌‌‌​‌​‌​​‌‌​‌​​‌​‌​​​​‌​‌‌​‌‌​​‍Cir., . Line 179 F.2d for the Union 610; Lipscomb Vincent, Groves, Doucette Circuit. 187 F.2d 40. indicates a directing a claim discovered. must be worthiness trial court action of claim, possibil alternative There several unseaworthiness on the verdict ; citizenship First, diversity jury that (2) ities an instruction controversy duty present comply with its and the amount сould the defendant $3,000, acting with exceeds courts federal district in accordance of due care industry. jurisdiction of unsea practice have common-law common alleged claims. 28 U.S.C. § worthiness these contends Defendant diversity appeal majority of Unlike the vast not be considered should errors cases, applied they properly raised law mari is the federal were not because below, Pope & and, alternatively, rather than law. do time law state Talbot, Hawn, reversible error. constitute Cannella I Lykes Bros. S.S. turning questions to these Before denied certiorari jurisdiction at law 859, will consider L.Ed. 526. re sult, over unseaworthi diversity, below of the court when there is is that a be phase negligence do so try of the case. We ness claims seaman can of jurisdictional question, simultaneously is a сause it the unseaworthiness to on our jury. Second, and should consider which we can same vessel involved the motion,3 deci and because recent twenty own is a Lakes tons Great vessel “of courts federal of this and other upward, sions enrolled licensed the jurisdic coasting concern trade, over employed have evidenced in the busi brought admiralty claims navigation basis of tional ness of cоmmerce and between courts.4 district places on law side of federal upon in different lakes states ques jurisdictional Although navigable is a connecting and lakes,” said waters significance tion, only is with it has party either jury and re can demand trial, respect there mode of since admiralty in ceive a trial un an admiralty jurisdiction always over is seaworthiness claim. 28 1873. U.S.C. § § claim. U.S.C. jury unseaworthiness Since a seаman is a entitled to negligence 1333. on a Act, claim under the Jones 46 U.S.C.A. result is § Kis In Paduano Yamashita he can obtain a Although trial on both claims. Kaisha, Cir., 1955, 221 en Kabushiki (unseaworthiness) one claim no fed held that F.2d eral-question we theré technically admiralty, other jurisdiction law over a at law, (negligence) appear at would there general founded on the maritime claim objection trying procedural to be no be decision is to adhered law.5 If that simultaneously to the them both same jurisdiction to, basis for at some other Indeed, compo jury. over the unsea since the factual of the below law Swan, brought Mansfield, erroneously law, M. 3. & L. R. Co. v. held to be C. should be considered to have been U.S. admiralty brought in and therefore trans- 462. admiralty fered to the docket rather than Cir., Walling, 4. See Jordine that a clear, howevеr, dismissed. 662; Vincent, Cir., Doucette v. begun may, law” “at suit under some 834; 1952, 194 F.2d Paduano v. Yama circumstances, be been deemed have Kaisha, Cir., Kabushiki Kisen shita admiralty, brought and vice versa. 615; Compania 1955, 221 F.2d Maritima Pressprich ex rel. United States & Son Hampshire Ador, v. New S.A. Fire Ins. Co., James W. & Co. v. Elwell D.C.S.D.N.Y.1954, F.Supp. Co., 577; 1918, 250 F. United States v. The Ins. v. Netherlands D.C. Wunderlich Williams, ‍‌‌​​‌​​​​‌​‌‌‌‌‌​‌‌‌​‌​‌​​‌‌​‌​​‌​‌​​​​‌​‌‌​‌‌​​‍R. John S.D.N.Y.1954, F.Supp. Mc 451, 454, certiorari denied Great Lakes Cape Trawling Corp., Donald v. Cod D.C. Dredge Dock & Co. United F.Supp. D.Mass.1947, 71 65 S.Ct. U.S. Corp., 5. In we did not or dis- v. Waterman Paduano consider Civil S.S. question complaint, cuss whether the virtually plaintiff Ken the record that nents of two “lives” at claims identical, require more, York, New is an it would foolish to that defendant separate corporation, possibility is trials. A third Indiana and that amount controversy $3,- pendent jurisdiction. of The Jones is well in excess ju 000.6 claim for the mari Since the distriсt court Act provide claim for risdiction at law time unseaworthiness over the unseaworthi diversity citi of re ness claim because of seamen with two different plaintiff zenship, of the same to have lief wrong. the commission was entitled judgment jury. A claim bars both her claims submitted to one a second suit other claim. based on the II Phillips, 1927, S.S. Baltimore Co. v. Turning merits of 47 S.Ct. greet- think that the trial court erred on the Since both based claims are tj ing a defendant’s unsea- verdict as operative facts, they constitute a worthiness. single S.S. “cause action.” Baltimore There was which evidence from Phillips, supra; Co. Casualty Fire American could have found that the Finn, 1951, 341 Co. v. painted were so to be and maintained as 12-13, 71 S.Ct. 95 L.Ed. 702. Be excessively slippery, especially when extremely cause close relation of We. covered with water from a rain. identity two claims and the virtual showing think this was sufficient arguable components, their factual it is go unseaworthiness to entitle having court, prop federal district jury. Krey g., to the See e. v. United erly jurisdiction taken law under the at 1941, Gril negligence claim, Jones Act over the jurisdiction has States, Cir., lea v. United closely at law over the re lated unseaworthiness claim. See Hurn Defendant, relying Rule on Oursler, 1933, 238, S.Ct. 51 of the Fedеral Proce Rules of Civil 586, controlling 1148, the case dure, U.S.C., plaintiff contends that pendent jurisdiction, the Su in which waived this error counsel because her preme Court held that where there is retired, not, jury did before the state jurisdiction only one cause of action and objected to the trial he action of the upon question, is based federal two or grounds specify court the his ob of grounds may urged, more bе relief jection. However, we do not think and, question if the federal is substan dealing objections Rule with tial, juris the federal has district court jury, applic court’s instructions to the is diction over the of action. entire cause though able here. Even of the the action Vincent, Cir., 1952, Doucette v. See litigants presented trial court was to the note and Jordine v. jury part charge, and the it was Walling, Cir., 1950, 185 F.2d 670 delayed ruling reality the granting prior the of de motion against plain to direct a verdict fendant We need here decide ground tiff on unseaworthiness on the jurisdiction law, whether there is at un proof per that the was not sufficient to doctrine, der the Hurn v. of Oursler go jury. issue to to Rul mit that ings the pendent claim of when unseaworthiness gov motions and evidence are combined one action awith substan by Rule 46 rather erned than Rule 51. and relаted claim tial under provides: exceptions the Jones “Formal Rule rulings Act, affirmatively appears orders of since it or the are un- court from may 1653; Moore, whole record looked U.S.C. § 6. The to for See 28 Practice, Federal purpose curing (2d 1949). § a defective aver 15.09 ed. jurisdiction. Printing ment Sun probable is also the facts of Publishing Edwards, Ass’n v. fall within 28 § this case U.S.C. 24 S.Ct. 48 L.Ed. 1027. above. discussed necessary; ness, purposes but for all must have a new trial exception which an has been on heretofore that issue. necessary party, sufficient that a Ill ruling at the time the or order of alleged charge error in the with sought, court is made or makes known respect governed by to the court the action which he desires somewhat De- different considerations. objection court to take or his hearing fendant’s within counsel grounds action the court and his * * requested the court to therefor; [Emphasis add *.” “that as a matter of law it is not neces- complied ed.] Plaintiff rule: this sary provide for the defendant to sought ruling, when defendant its first best or the newest and or latest stairs plaintiff’s vigorously objected, counsel paint ship proof. nor that the be accident and indicated to the court that unsea enough paint pro- It is alleged sufficiently worthinеss was commonly accepted vided are used and complaint proved by evidence so industry court the time.” The that the issue should be submitted to charge.” replied: “I will so Plaintiff re- jury. having position Plaintiff’s been throughout colloquy, mained silent made known to the court at the time the and the case was then submitted to the ruling sought, was first she was not re jury. quired repeat objection when de fendant renewed its motion and when Rule of the Federal Rules granted the motion. Keen “ * * * provides: Civil Procedure No Tankship Corp., Cir., Overseas party assign giving may as error the 194 F.2d certiorari denied 343 U.S. give the failure to unless instruction 72 S.Ct. Swee objects he thereto before the retires ney Syndicate, v. United Feature stating verdict, distinctly to consider its Powers, 129 F.2d Williams objects the matter to which he and the 153, 156; 135 F.2d Green ” * * * objection. of his Reading Co., purposе salutary The of this rule is to point properly preserved 719. A is when expedite justice the administration of party objection a has made known his to insuring judge that the trial informed is the trial and stated the possible may errors so that he have objection. which he his bases Keen v. opportunity charge, an to reconsider his Tankship Corp., supra; Overseas Irvin and, necessary, if to correct it.8 While Fidelity Deposit & Jacobs Co. v. Co. recognize discretionary power of we Maryland, Cir., 1953, 794, 7 202 F.2d appellate proper an court in a case re 800-801, 37 A.L.R.2d 889. Since the of its own motion saved trial court committed reversible error in view errors not directing objection,9 by proper we verdict as to think this dis- unseaworthi- Hoffman, 1943, 214, 442; 109, Palmer v. 318 2 A.L.R.2d ‍‌‌​​‌​​​​‌​‌‌‌‌‌​‌‌‌​‌​‌​​‌‌​‌​​‌​‌​​​​‌​‌‌​‌‌​​‍8. U.S. 166 Shoku- 645, Higeyoshi 119, 477, rehearing Nagaya- 63 S.Ct. 87 L.Ed. Shimabukuro v. wan 800, U.S.App.D.C. 757, ma, 1944, 271, 318 U.S. 63 S.Ct. denied 87 L. 140 F.2d 1163; ease, Nugent, Cir., supra, v. Ed. Marshall 13. In Hormel the Su- 604, 615; Thorp 1955, statutory 222 F.2d it v. Ameri Court held Xireme power appeal Co., Cir., can Aviation & General inherent to consider Ins. or questions 821, legal 1954, 212 F.2d raised before the Appeals. Tax Board of In the Sibbach Helvering, 1941, 552, 9. Hormel v. 312 U.S. supra, the Court considered on its 719, 556-557, 1037; 61 S.Ct. 85 L.Ed. contempt motion erroneous own com- Wilson, 1941, 16, v. Sibbach U.S. party mitment of who refused to sub- 479; 61 S.Ct. 85 L.Ed. United States physical examination, mit to a Rule 35 Atkinson, 1936, 157, 159-160, v. 297 U.S. indicating that Rule 37 commitment for 555; 391, 80 L.Ed. 56 S.Ct. Moore v. proper contempt remedy was not a Cir., 1952, Waring, 491; 200 F.2d Finn refusal. But cf. the such extreme hold- Wood, v. Dowell, 178 F.2d Herzog ing v. United Jowers, v. monly sparingly industry accepted be used cretion should only exercised in the exceptional at at the cases.10 Without time.” This instruction er tempting customary sit or roneous. practice to state a rule delineate While the proper industry to of the in which would be is uations relevant and admis sible, of an in favor exercise this discretion defendant’s standard care language negligence appealing party, we think the action is not limited to com Atkinson, 1936, plying practices in United with usual States v. the indus try or trade. Wabash R. Co. v. Mc Daniels, approval quoted 460-461, in John States, 1943, 605; Poignant 318 U.S. son United 704, vividly States, Cir., United 63 S.Ct. Ice, Inc., Sullivan, type in Uline calls mind the of situation 88 U.S. favorably App.D.C. 104, disрosed to which would T. J. The alleged Hooper, Cir., 1932, despite the failure 60 F.2d review errors appealing party his ob to raise Consequently, is entitled to a jections exceptional circum below: “In new trial on the issue of as cases, ap stances, especially in criminal well as that of unseaworthiness. interest, may, pellate courts, public Reversed and remanded for a new motion, own notice errors their trial. taken, exception if the which no has been obvious, otherwise errors are or if seriously fairness, integrity, affect FRANK, Judge (concurring). Circuit judicial reputation proceed public or negligence issue, judge, On the ings.” [Emphasis added.] charged, request, defendant’s “It have While we considerable enough paint com alleged error in doubt as to whether monly accepted indus used excеptional char is of -the try at the time.” This was obvious as acter, it here we have decided to consider , matter, one on a material error * being fo case is remanded because the r Court, imagine. Supreme For the can ground. Dow on another See a new trial ell, Inc., and others have often held this court Jowers, in practices, others in usual trade, dustry a defendant’ similar to charged s ain a dеfense practices, do not constitute request, jury, “it at defendant’s enough paint com- action.1 if the Thorp 637; American Aviation 561, 1955, v. where Rule 30 F.2d F.2d 226 Co., 1954, Procedure, 212 3 Ins. General Criminal Rules of Federal 821; Dodd Produce Allen v. Nelson to Rule 51 of F.2d in content which is similar 296; Cir., 1953, Procedure, Co., F.2d Smit 10 207 Rules of Civil the Federal preventing Welch, interpreted 189 832. 'harshly' F.2d as 10 v. was h appellate all review eases of in criminal Richardson, 91 R. v. Co. 1. Grand Trunk properly objections charges raised not 356; 454, 469, 23 L.Ed. Wabas U.S. below. h 454, McDaniels, 107 U.S. 460- R. Co. v. 932, 605; Brooks, 461, Richmond, L.Ed. Texa 2 27 S.Ct. F. R. Co. v. & P. s Behymer, 468, 24, 404, U.S.App.D.C. P. v. 1952, & 470, Co. R. 905; any alleged The T. appears S.Ct. hold error .that 737; Brigham Cir, Hooper, 2 significant aspect F.2d on a in the J. University appeal Young , Lillywhite, v. will be considered Cir. the case comply F.2d 137 Á.L.R. Wor despite with Rule 51. failure Torpedo c weight authority Pure great v. ester ' Ice, Consulting ’See, g., contrаry. Uline v. Sul Pierce e. livan, U.S.App.D.C. City Burlington, Engineering Co. v. 607, 609; Kane Corp., Cir., 1955, 219 Tankers American that, My colleagues were indicate Labor, MITCHELL, Secretary of P. James on the unseaworthi- for our reversal not Department States United probably issue, they have would ness Labor, Appellant, agree. disregarded I cannot error. this colleagues My to Rule 51 refer MANUFACTUR- COACH VAGABOND retired, plain- that, before fact COMPANY, Appellee. ING distinсtly that state tiffs’ counsel did No. 12677. grounds ob- objected he jection. that, colleagues My concede Appeals Court of United States may exceptional case, er- review Sixth Circuit. objection. proper June “saved” rors not exceptional suggest They is not an relying United on a statement Atkinson, 297 U.S. States There L.Ed. 555. disjunc- forth, Court, Supreme in the set reviewing

tive, er- such two

rors:

(1) are obvious “the errors

or seriously they

(2) af- otherwise integrity, fairness, public

fect the judicial proceedings.”

reputation of colleagues ground.

My stress the second ground suffices,as the

But the first alone here, make And observed

cases clear.2

above, magnificiently ob the error surely right litigant A has

vious. judge

assume that a federal trial knows elementary ‍‌‌​​‌​​​​‌​‌‌‌‌‌​‌‌‌​‌​‌​​‌‌​‌​​‌​‌​​​​‌​‌‌​‌‌​​‍legal rules, substantive

long precedents, established will accord

that therefore act litigant’s ingly, prompting by without

lawy er.3 Moore, (2d they ed.) it, may 2. See 5 writing Federal Practice delivers before he 1004-1905, 2503-2504; 3780-3781; charge, 6 Id. until errors overlook Helvering, transcript Hormel 556- after receive may especially Callen This true over. Pennsylvania concerning R. 162 F. contains an error elementary legal lawyers principles 2d affirmed on which other reasonably judge 332 U.S. did not assume the over- Jowers, Dowell, look. A.L.R.2d de certiorari necessary Although it is not sustain nied particularly my position, I note Hige Shokuwan Shimabukuro here was entitled assume that yoshi Nagayama, U.S.App.D.C. pay le- would attention Greenfield, D.C., Rowlik v. obvious, gaily she is a since “ward F.Supp. 999-1000, affirmed 3 admiralty,” protection whose 179 F.2d 678. given he should have interests unusual Because, lawyers usually, alas do care. judge’s charge not have in hand the

Case Details

Case Name: Kathleen Troupe v. Chicago, Duluth & Georgian Bay Transit Company

Court Name: Court of Appeals for the Second Circuit

Date Published: Jun 1, 1956

Citation: 234 F.2d 253

Docket Number: 23475_1

Court Abbreviation: 2d Cir.