Kennedy v. Henderscheid

Fifth Circuit

Kennedy v. Henderscheid

490 F.2d 85, 1974 A.M.C. 981

CourtCourt of Appeals for the Fifth Circuit

DecidedDecember 28, 1973

DocketNo. 73-2901

StatusPublished

Cited by3 cases

This text of 490 F.2d 85 (Kennedy v. Henderscheid) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kennedy v. Henderscheid, 490 F.2d 85, 1974 A.M.C. 981 (5th Cir. 1973).

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Opinion

PER CURIAM:

In this personal injury suit in admiralty arising out of the explosion of a fishing boat trial was to the judge and judgment was rendered against the plaintiffs. The plaintiffs argue on appeal that the trial judge erroneously applied the doctrine of res ipsa loquitur since he failed to rule .that plaintiffs’ proof transferred the burden of going forward on the issues of negligence and causation to the defendant. This argument is without merit. Under the rule applied in admiralty cases the trier of fact is permitted to accept or reject the inference of negligence permitted by the doctrine of res ipsa loquitur and “the question still is whether all the evidence . . . reasonably shows that the defendant was negligent in some respect that caused the injury, though the particular negligence cannot be pointed out or directly proved”, Geotechnical Corp. v. Pure Oil Company, 196 F.2d 199, 205 (5th Cir.) cert, denied, 344 U.S. 874, 73 S.Ct. 165, 97 L.Ed. 676 (1952). The plaintiffs also assert that the clearly erroneous rule does not apply when the district judge adopts verbatim the proposed factual findings of one of the parties. This contention is similarly without merit. See, e. g., Lewis Dreyfus & CIE v. Panama Canal Company, 298 F. 2d 733 (5th Cir. 1962). The district court’s factual determinations were not clearly erroneous. Fed.R.Civ.P. 52(a).

Affirmed.

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PER CURIAM:

In this personal injury suit in admiralty arising out of the explosion of a fishing boat trial was to the judge and judgment was rendered against the plaintiffs. The plaintiffs argue on appeal that the trial judge erroneously applied the doctrine of res ipsa loquitur since he failed to rule .that plaintiffs’ proof transferred the burden of going forward on the issues of negligence and causation to the defendant. This argument is without merit. Under the rule applied in admiralty cases the trier of fact is permitted to accept or reject the inference of negligence permitted by the doctrine of res ipsa loquitur and “the question still is whether all the evidence . . . reasonably shows that the defendant was negligent in some respect that caused the injury, though the particular negligence cannot be pointed out or directly proved”, Geotechnical Corp. v. Pure Oil Company, 196 F.2d 199, 205 (5th Cir.) cert, denied, 344 U.S. 874, 73 S.Ct. 165, 97 L.Ed. 676 (1952). The plaintiffs also assert that the clearly erroneous rule does not apply when the district judge adopts verbatim the proposed factual findings of one of the parties. This contention is similarly without merit. See, e. g., Lewis Dreyfus & CIE v. Panama Canal Company, 298 F. 2d 733 (5th Cir. 1962). The district court’s factual determinations were not clearly erroneous. Fed.R.Civ.P. 52(a).

Affirmed.

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490 F.2d 85, 1974 A.M.C. 981, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kennedy-v-henderscheid-ca5-1973.

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