429 F2d 575 Jones v. Terrebonne Menhaden Inc
429 F.2d 575
Versia Mae McClannon JONES, Administratrix of the Estate of
Fleming Jones, Plaintiff-Appellant,
TERREBONNE MENHADEN, INC., et al., Defendants-Appellees.
No. 28998 Summary Calendar.
United States Court of Appeals, Fifth Circuit.
July 6, 1970.
Vanue B. LaCour, Baton Rouge, La., for plaintiff-appellant.
J. Dwight LeBlanc, Jr., Robert B. Deane, New Orleans, La., for defendants-appellees.
Before BELL, AINSWORTH, and GODBOLD, Circuit Judges.
This is an appeal from the dismissal of a suit under Rule 41(b), F.R.Civ.P., at the close of plaintiff's evidence. Plaintiff sued in her capacity as administratrix to recover damages for the wrongful death of her husband. The action was based on alleged negligence and unseaworthiness, and was brought under the Jones Act, 42 U.S.C.A. 688 and the general maritime law. The matter was tried before the court without a jury. The motion to dismiss was granted for failure of proof of negligence or unseaworthiness. Findings of fact and conclusions of law were entered in support of the dismissal.
The dismissal was clearly correct.1 The burden to prove negligence or unseaworthiness was upon plaintiff. See Bowser v. Lloyd Brasileiro Steamship Co., 5 Cir., 1969, 417 F.2d 779; and McQuiston v. Freighters and Tankers Steamship Co., 1964, 327 F.2d 746. There was no such proof under any theory advanced.
We dispose of this case on the briefs and record, without oral argument, as provided by our Local Rule 18