Braniff v. Jackson Ave.-Gretna Ferry, Inc.

289 F.2d 939

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 26, 1961
• Docket: No. 18137
• Status: Published

Opinions

PER CURIAM.

The forceful petition for rehearing misconceives the principal thrust of our decision. We do not hold that these employees were seamen. We hold only that under applicable substantive standards as to who is a seaman, the moving papers upon which summary judgment was sought and obtained gave rise to too many variable inferences. Consequently, there was a failure to demonstrate that there was no genuine issue as to any material fact. F.R.Civ.P. 56, 28 U.S.C.A. To our decision of Robbins v. Milner Enterprises, Inc., 5 Cir., 1960, 278 F.2d 492, at page 496-497, cited previously, 280 F.2d 523, at page 529, may now be added the more recent one of Chapman v. Hawthorne Flying Service, 5 Cir., 1961, 287 F.2d 539, at page 541. There, with great reliance on Kennedy v. Silas Mason Co., 1948, 334 U.S. 249, 257, 68 S.Ct. 1031, 92 L.Ed. 1347, Chief Judge Tuttle for this Court articulated the substance of our action in reversing summary judgment here. “Without intimating any conclusions on the merits, and, as stated previously, without implying that the plaintiff’s proof as it now stands would warrant submission to a jury, we nevertheless conclude that it is the part of good judicial administration for the facts in this case to be more fully developed before the trial court determines that there is truly no genuine issue as to any material fact.”

We repeat that our reversal is not “a forecast that on remand the case must go to the jury. That depends upon the actual proof made and such proof may fall way short.” 280 F.2d 523, at page 529.

Rehearing denied.