Carl Michael Smith v. Harry Pinell, Jr., 597 F.2d 994 (5th Cir. 1979). · Go Syfert
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Carl Michael Smith v. Harry Pinell, Jr., 597 F.2d 994 (5th Cir. 1979). Cases Citing This Book View Copy Cite
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cited 2× by 2 distinct cases, last quoted 1993 · …justification for qualifying a seaman's rights under the jones act by incorporating a state's substantive law governing an action for rescission at p. 996 ✓
41 citation events (4 in the last 25 years) across 18 distinct courts.
Strongest positive: Jena McClellan v. Midwest Machining, Inc. (ca6, 2018-08-16)
Treatment trajectory · 1983 → 2026 · click a year to view as-of
1983 2004 2026
Top citers, strongest first. 24 distinct citers. How cited ↗
discussed Cited as authority (rule) Jena McClellan v. Midwest Machining, Inc.
6th Cir. · 2018 · confidence medium
See Botefur v. City of Eagle Point, 7 F.3d 152, 156 (9th Cir. 1993) (recognizing that “the rule announced in Hogue, that tender back is not required for suit under the FELA, is generalizable to suits under other federal compensatory statutes” and finding no tender back requirement for § 1983 plaintiff); Smith v. Pinnell, 597 F.2d 994, 996 (5th Cir. 1979) (same for Jones Act plaintiff).
discussed Cited as authority (rule) Riddell v. Medical Inter-Insurance Exchange
D.N.J. · 1998 · confidence medium
See Botefur v. City of Eagle Point, 7 F.3d 152, 156 (9th Cir.1993) (Hogue generalizable to other federal compensatory statutes including Title VII); Home Box Office, Inc. v. Spectrum Electronics, Inc., 100 F.R.D. 379 , 382 n. 1 (E.D.Pa.1983) (not citing Hogue but holding that under antitrust law benefits available under federal law cannot be defeated by state common law rules; no ratification where plaintiffs failed to tender back); Wahsner v. American Motors Sales Corp., 597 F.Supp. 991 (E.D.Pa.1984) (not citing Hogue but finding Pennsylvania law with respect to ratification of releases incon…
discussed Cited as authority (rule) Rangel v. El Paso Natural Gas Co.
D.N.M. · 1998 · confidence medium
See Wamsley v. Champlin Refining and Chems., Inc., 11 F.3d 534, 539-40 (5th Cir.1993) (applying tender back requirement to ADEA plaintiff), cert. denied, 514 U.S. 1037 , 115 S.Ct. 1403 , 131 L.Ed.2d 290 (1995); Forbus v. Sears Roebuck & Co., 958 F.2d 1036, 1041 (11th Cir.) (holding no tender back requirement for ADEA plaintiff), ce rt. denied, 506 U.S. 955 , 113 S.Ct. 412 , 121 L.Ed.2d 336 (1992); Botefur v. City of Eagle Point, 7 F.3d 152, 156 (9th Cir.1993) (applying Hogue to conclude that civil rights plaintiff not required to tender back consideration received as prerequisite to initiating…
discussed Cited as authority (rule) Thomas Long v. Sears Roebuck & Company Sears Merchandise Group. Thomas G. Long (2×)
3rd Cir. · 1997 · confidence medium
See Botefur v. City of Eagle Point, 7 F.3d 152, 156 (9th Cir.1993) (Hogue generalizable to .other federal compensatory statutes including Title VII); Home Box Office, Inc. v. Spectrum Electronics, Inc., 100 F.R.D. 379 , 382 n. 1 (E.D.Pa.1983) (not citing Hogue but holding that under antitrust law benefits available under federal law cannot be defeated by state common law rules; no ratification where plaintiffs failed to tender back); Wahsner v. American Motors Sales Corp., 597 F.Supp. 991 (E.D.Pa.1984) (not citing Hogue but finding Pennsylvania law with respect to ratification releases incongr…
discussed Cited as authority (rule) Long v. Sears Roebuck & Co
3rd Cir. · 1997 · confidence medium
Pa. 1984) (not citing Hogue but finding Pennsylvania law with respect to ratification releases incongruous with Automobile Dealers' Day in Court Act where Act was intended to provide redress for the very activity alleged; amount retained was to be set off against any damages); Smith v. Pinell, 597 F.2d 994, 996 (5th Cir. 1979) (plaintiff allowed to proceed under Jones Act despite having signed release and received settlement; Jones Act analogized to FELA); Taxin v. Food Fair Stores, Inc., 287 F.2d 448 (3d Cir. 1961) (cases regarding necessity for tender are in hopeless confusion; in case invol…
discussed Cited as authority (rule) Mary Deren v. Digital Equipment Corp.
1st Cir. · 1995 · confidence medium
See also Botefur v. City of Eagle Point, 7 F.3d 152, 156 (9th Cir.1993) (no tender back requirement for § 1983 plaintiff); Smith v. Pinell, 597 F.2d 994, 996 (5th Cir.1979) (no tender back requirement for Jones Act plaintiff); Fleming v. U.S. Postal Service AMF O’Hare, 27 F.3d 259, 260-62 (7th Cir.1994) (enforcing tender back requirement for Title VII plaintiff).
discussed Cited as authority (rule) Deren v. Digital Equipment
1st Cir. · 1995 · confidence medium
See also Botefur v. City of Eagle Point, 7 F.3d 152, 156 (9th Cir. 1993) (no tender back requirement for 1983 plaintiff); Smith v. Pinell, 597 F.2d 994, 996 (5th Cir. 1979) (no tender back requirement for Jones Act plaintiff); Flemming v. U.S. Postal Service AMF O'Hare, 27 F.3d 259, 260-62 (7th Cir. 1994) (enforcing tender back requirement for Title VII plaintiff).
cited Cited as authority (rule) Wamsley v. Champlin Refining and Chemicals, Inc.
5th Cir. · 1993 · confidence medium
Smith v. Pinell, 597 F.2d 994, 996 (5th Cir.1979).
discussed Cited as authority (rule) Botefur v. City of Eagle Point (2×)
9th Cir. · 1993 · confidence medium
Similarly, in Smith v. Pinell, 597 F.2d 994, 996 (5th Cir.1979) (per curiam), the Fifth Circuit vacated an order of the district court because the district court erroneously had applied state law in determining whether a tender back of consideration was prerequisite to the initiation of an action under the Jones Act, 46 U.S.C. app. § 688 (1988).
discussed Cited as authority (rule) Botefur v. City of Eagle Point, Oregon (2×)
9th Cir. · 1993 · confidence medium
The Supreme Court held that "[t]he question whether a tender back of the consideration was a prerequisite to the bringing of the suit is to be determined by federal rather than state law." Hogue, 390 U.S. at 517 , 88 S.Ct. at 1151 ; cf. Counts v. Burlington N. R.R., 896 F.2d 424, 425 (9th Cir.) (stating that a challenge to the validity of a FELA release presents a question of federal law), cert. denied, 498 U.S. 815 , 111 S.Ct. 54 , 112 L.Ed.2d 30 (1990); Jones v. Taber, 648 F.2d 1201, 1203 (9th Cir.1981) ("The conditions affecting the validity of a release of significant federal rights are em…
discussed Cited as authority (rule) Pitre v. Penrod Drilling Corp. (2×)
E.D. La. · 1992 · confidence medium
The Fifth Circuit in Smith v. Pinell, 597 F.2d 994, 996 (5th Cir.1979) (per curiam), has succinctly addressed the precise issue before the Court in the instant case.
discussed Cited as authority (rule) CL-Alexanders Laing v. Goldfeld
S.D.N.Y. · 1989 · confidence medium
The court cited uncontradicted affidavits that England [among other nations] would not recognize á United States judgment in favor of the defendant as a bar to an action by [its] own citizens____ Smith v. Pinell, 597 F.2d 994 at 996-97 (5th Cir.1979).
discussed Cited as authority (rule) Southern Pacific Transportation Company, Cross-Appellees v. San Antonio, Texas, Acting by and Through Its City Public Service Board, Cross-Appellant
5th Cir. · 1984 · confidence medium
Smith v. Pinell, 597 F.2d 994, 997 (5th Cir.1979). 9 We believe that this case is extraordinary and calls for the exercise of our discretionary power because the district court clearly abused its discretion in granting the stay of execution of the railroads’ judgments.
discussed Cited "see" Rollin v. Kimberly Clark Tissue Co.
S.D. Ala. · 2001 · signal: see · confidence high
See Smith v. Pinell, 597 F.2d 994 996-97, n. 2 (5th Cir.1979) (finding a mere statement that “[t]his is a case of Admiralty and Maritime Jurisdiction” insufficient to invoke Rule 9(h) in a complaint alleging Jones Act negligence and general maritime law unseaworthiness); Harrison v. Glendel Drilling Co., 679 F.Supp. 1413, 1418 (E.D.La.1988) (requiring an explicit reference to Rule 9(h) in complaint presenting multiple bases of jurisdiction for defendant to utilize Rule 14(c)).
discussed Cited "see" William E. Theriot, III v. Captain James Sprinkle, Inc. And U.S. Fire Ins. Co.
7th Cir. · 1994 · signal: see · confidence high
Smith v. Pinell, 597 F.2d 994 (5th Cir.1979) (per curiam); see Fleming v. United States Postal Service, No. 92-2735, slip op. at 4 (7th Cir. June 16, 1994) 8 Its application "takes its life, not from the language of the statute, but from the equitable principle that no man will be permitted to profit from his own wrongdoing in a court of justice." Id.
discussed Cited "see, e.g." Marmac, LLC v. Reed
M.D. Fla. · 2005 · signal: see also · confidence low
Feb. 13, 1989) (emphasis in original); see also Smith v. Pinell, 597 F.2d 994 , 996 n. 2 (5th Cir.1979) (plaintiff's allegation that "this is a case of Admiralty and Maritime Jurisdiction” was insufficient to invoke Rule 9(h)); Harrison, 679 F.Supp. at 1418 ("A plaintiff s allegation that his claim is within the admiralty and maritime jurisdiction is not sufficient to make it an admiralty and maritime claim within the meaning of Rule 9(h), if the claim is also within the district court’s jurisdiction on some other ground.”). .
discussed Cited "see, e.g." Gary Raczak v. Ameritech Corporation
6th Cir. · 1997 · signal: see, e.g. · confidence medium
See, e.g., Smith v. Pinell, 597 F.2d 994, 996 (5th Cir.1979) (barring a tender requirement pursuant to the Jones Act); Wahsner v. American Motors Sales Corp., 597 F.Supp. 991, 998 (E.D.Pa.1984) (holding that there is no tender-back requirement in a case involving the Automobile Dealers' Day in Court Act).
discussed Cited "see, e.g." Eye v. Fluor Corp.
E.D. Mo. · 1997 · signal: see, e.g. · confidence medium
See, e.g., Smith v. Pinell, 597 F.2d 994, 996 (5th Cir.1979) (holding there is no tender requirement under the Jones Act); Wahsner v. American Motors Sales Corp., 597 F.Supp. 991, 998 (E.D.Pa.1984) (holding there is no tender-back requirement under the Automobile Dealers' Day in Court Act).
discussed Cited "see, e.g." Raczak v. Ameritech Corp.
6th Cir. · 1997 · signal: see, e.g. · confidence medium
See, e.g., Smith v. Pinell, 597 F.2d 994, 996 (5th Cir.1979) (barring a tender requirement pursuant to the Jones Act); Wahsner v. American Motors Sales Corp., 597 F.Supp. 991, 998 (E.D.Pa.1984) (holding that there is no ten der-back requirement in a ease involving the Automobile Dealers’ Day in Court Act).
discussed Cited "see, e.g." Vernal Forbus, Earl J. Beacham, Rudolph Caddell, Frank R. Davis, Vernie Rhodes, Jr. v. Sears Roebuck & Company, Vernal Forbus, Earl J. Beacham, Rudolph Caddell, Frank R. Davis, Vernie Rhodes, Jr. v. Sears, Roebuck & Company
11th Cir. · 1992 · signal: see, e.g. · confidence medium
See, e.g., Smith v. Pinell, 597 F.2d 994, 996 (5th Cir.1979) (Jones Act); Wahsner v. American Motors Sales Corp., 597 F.Supp. 991, 998 (E.D.Pa.1984) (Automobile Dealers' Day in Court Act). 17 Two other circuits have examined the ratification question presented here and held that a releasor's retention of benefits, after learning that a release is voidable, constitutes a ratification of the release.
cited Cited "see, e.g." Forbus v. Sears Roebuck & Co.
11th Cir. · 1992 · signal: see, e.g. · confidence medium
See, e.g., Smith v. Pinell, 597 F.2d 994, 996 (5th Cir.1979) (Jones Act); Wahsner v. American Motors Sales Corp., 597 F.Supp. 991, 998 (E.D.Pa.1984) (Automobile Dealers’ Day in Court Act).
discussed Cited "see, e.g." Isaacs v. Caterpillar, Inc.
C.D. Ill. · 1991 · signal: see, e.g. · confidence medium
See, e.g., Smith v. Pinell, 597 F.2d 994, 996 (5th Cir.1979) (Jones Act); Wahsner v. American Motors Sales Corp., 597 F.Supp. 991, 998 (E.D.Pa.1984) (Automobile Dealers’ Day in Court Act); Taxin v. Food Fair Stores, Inc., 197 F.Supp. 827, 830-31 (E.D.Pa.1961) (Sherman Antitrust Act).
discussed Cited "see, e.g." Matter of Armatur, Sa
D.P.R. · 1989 · signal: see also · confidence low
See also Smith v. Pinell, 597 F.2d 994 (5th Cir.1979) (allegation that case was of admiralty and maritime jurisdiction insufficient to invoke Rule 9(h)); Harrison v. Glendel Drilling Co., 679 F.Supp. 1413, 1417-19 (W.D.La.1988) ("where the complaint shows that both admiralty and some other basis of federal jurisdiction exists, the plaintiff must employ an `identifying statement' in accordance with Rule 9(h) in order to be entitled to the special benefits afforded to admiralty litigants").
discussed Cited "see, e.g." Siragusa v. Standard Steamship Owners Protection
unknown court · 1989 · signal: see also · confidence low
See also Smith v. Pinell, 597 F.2d 994 (5th Cir.1979) (allegation that case was of admiralty and maritime jurisdiction insufficient to invoke Rule 9(h)); Harrison v. Glendel Drilling Co., 679 F.Supp. 1413, 1417-19 (W.D.La.1988) (“where the complaint shows that both admiralty and some other basis of federal jurisdiction exists, the plaintiff must employ an ‘identifying statement’ in accordance with Rule 9(h) in order to be entitled to the special benefits afforded to admiralty litigants”).
Retrieving the full opinion text from the archive…
Carl Michael SMITH, Plaintiff-Appellant,
v.
Harry PINELL, Jr., Defendant-Appellee
76-3609.
Court of Appeals for the Fifth Circuit.
Jul 2, 1979.
597 F.2d 994
1979 U.S. App. LEXIS 13477
Stanford B. Gauthier, II, Breux Bridge, La., for plaintiff-appellant., Patrick L. Burke, Mat N. Gray, III, New Orleans, La., for defendant-appellee.
Roney, Tjoflat, Hill.
Cited by 32 opinions  |  Published
1 passages pin-cited by 2 cases
Pinpoint authority: #41,286 of 633,719
Citer courts: Court of Appeals of Texas (2)
PER CURIAM:

On February 14, 1975, the appellant, Carl Michael Smith, then a sixteen-year-old minor, sustained an injury to his right leg while working off the coast of Louisiana aboard the shrimp boat MISS ELOIS owned by the appellee, Harry Pinell, Jr. This injury resulted in the amputation of Smith’s leg above the knee. Smith, Pinell, and Pinell’s insurers subsequently reached a settlement of all Smith’s claims arising out of the accident. Because Smith was an unmarried minor, the parties deemed it necessary to commence tutorship proceedings in Louisiana state court in order to complete the settlement. A tutor and undertutrix were appointed by the court to act for Smith, and, on September 2, 1975, the settlement was consummated. Smith’s appointed representatives received $37,500 and they joined Smith in giving Pinell and his insurers a complete release.

On April 6, 1976, Smith instituted this action against Pinell claiming damages un[*996] der the Jones Act [1] for negligence and under the general maritime law for unseaworthiness. Smith demanded a trial by jury. Pinell moved for summary judgment, citing the state court settlement and the release as a complete bar to Smith’s claim. Smith resisted the motion on the ground that the settlement and release were void, having been obtained by fraud. The district court found that a genuine issue of material fact was presented on the fraud issue and denied the motion for summary judgment. Record, vol. I, at 72-73. Pinell then moved the court to stay further proceedings in the case until Smith returned to Pinell the $37,500 proceeds of the settlement. The district court, relying on Louisiana authority which precludes an action to rescind a settlement for fraud absent a return of the settlement proceeds, granted Pinell’s motion and stayed further prosecution of the case. Id. at 102-03. From the court’s stay order this appeal was taken.

A Jones Act plaintiff is entitled to the rights inuring to a railroad employee under the Federal Employers’ Liability Act (FELA), 45 U.S.C. §§ 51-60 (1976). See generally G. Gilmore & C. Black, The Law of Admiralty § 6-26 (2d ed. 1975). An FELA plaintiff, who has been induced by fraud to settle a claim for personal injuries incurred in the course of employment activity covered by the FELA, is not required as a condition precedent to prosecuting his claim in court to return the settlement proceeds to his railroad employer. Hogue v. Southern Railway Co., 390 U.S. 516, 517, 88 S.Ct. 1150, 1151-52, 20 L.Ed.2d 73 (1968) (per curiam). The congressional policy favoring unburdened and expeditious recovery by covered railroad employees is thought to be better advanced by allowing the FELA action to go forward and by having the “sum paid [under the previous settlement] . . . deducted from any award determined to be due to the injured employee,” id. at 518, 88 S.Ct. at 1152, than by requiring the employee to return the settlement proceeds before prosecuting his claim. We perceive no sound policy reason for according different treatment to a Jones Act plaintiff, such as Smith in this case. Nor do we see any justification for qualifying a seaman’s rights under the Jones Act by incorporating a state’s substantive law governing an action for rescission as the district court did here. See Alcoa Steamship Co. v. Charles Ferran & Co., 383 F.2d 46, 50 (5th Cir. 1967), cert. denied, 393 U.S. 836, 89 S.Ct. 111, 21 L.Ed.2d 107 (1968). In our view, the entry of the stay order was manifest error.

Recovery for injury to or death of seaman.
Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply .

Pinell contends that we are powerless to correct the error now because we lack jurisdiction to entertain this appeal. We find that we have jurisdiction under 28 U.S.C. § 1292(a)(1) (1976), which, inter alia, empowers courts of appeal to review interlocutory orders of district courts granting injunctions. We have said that “[a]n order staying . . . proceedings in the District Court is [an injunction and thus] appealable under § 1292(a)(1) only if (A) the action in which the order was made is an action which, before the fusion of law and equity, was by its nature an action at law; and (B) the stay was sought to permit the prior determination of some equitable defense or counterclaim.” Jackson Brewing Co. v. Clarke, 303 F.2d 844, 845 (5th Cir.) (footnote omitted), cert. denied, 371 U.S. 891, 83 S.Ct. 190, 9 L.Ed.2d 124 (1962). Smith’s Jones Act negligence claim was framed as, in the words of the act, “an action for damages at law;” a jury trial was demanded both on that claim and the allegations of unseaworthiness under maritime law. Smith did not pursue the option available to him by Fed.R.Civ.P. 9(h) to cast his suit in admiralty. [2] Consequently, we[*997] are not concerned with the question of the appealability of a stay order entered in an admiralty cause. See Schoenamsgruber v. Hamburg American Line, 294 U.S. 454, 55 S.Ct. 475, 79 L.Ed. 989 (1935).

The stay order entered by the district judge in the proceedings below clearly possesses all of the characteristics of appealability contemplated by the test laid down in Jackson Brewing Co. Here, the district judge did not stay the prosecution of the plaintiff’s law action temporarily, simply to permit the equitable issue to be tried to the court first; rather, the court barred the prosecution of the plaintiff’s claim altogether. And the court erected the bar after deciding, on motion for summary judgment, that the reason for the bar (the prior settlement) was of questionable validity. [3] Were there any doubt as to our jurisdiction to review the stay order under section 1292(a)(1), we think we would be fully justified under established precedent in this circuit to consider Smith’s appeal to be in the nature of a petition for writ of mandamus and, finding a clear abuse of discretion as we do, to issue the writ forthwith. See, e. g., Hines v. D’Artois, 531 F.2d 726, 732 (5th Cir. 1976).

The stay order appealed from is accordingly VACATED and the cause is REMANDED to the district court for further proceedings.

VACATED AND REMANDED.

1

I. The Jones Act, 46 U.S.C. § 688 (1976), provides in pertinent part:

2

. See 5 C. Wright & A. Miller, Federal Practice and Procedure § 1227, at 164 — 65 (1969). Smith’s complaint does allege that “[t]his is a case of Admiralty and Maritime Jurisdiction.” Record, vol. I, at 1. Such an allegation is[*997] insufficient to invoke rule 9(h) and thus designate this an action in admiralty. Banks v. Hanover S. S. Corp., 43 F.R.D. 374, 376-77. (D.Md.1967).

3

. It should be noted that an answer has yet to be filed in this case. The fact of the settlement and release and the contention that they were obtained by fraud were developed by the parties in litigating the summary judgment motion. It is unnecessary for us to conjecture whether a formal answer by Pinell setting out the settlement and release and Smith’s reply alleging fraud, Fed.R.Civ.P. 8(c), would frame issues not reachable by Smith’s jury trial demand.