187 F2d 895 Dyke v. Massett

187 F.2d 895

MASSETT et al.

No. 13301.

United States Court of Appeals Fifth Circuit.

March 28, 1951.

Thomas B. Wheeler, New Orleans, La., for appellant.

Walter E. Doane, George M. Ponder, New Orleans, La., for appellees.

Before HUTCHESON, Chief Judge, and HOLMES and RUSSELL, Circuit Judges.



This appeal from a judgment in rem, in favor of libellants and against the 'M/V Explorer' for wages and subsistence, challenges the judgment as without support in the record.


While appellant in his brief puts forward six numbered assignments of error, his attacks upon the judgment are in substance two.


The one of these which, if sustained, would require the reversal and rendition of the judgment as a whole, is that the proof showed not an agreement for wages but one for profit sharing under which the libellants and the charterer, engaged in a joint venture, were to share, on an agreed basis the profits realized from a voyage or voyages.


The other, in the alternative and going only to a portion of the judgment, is that there was no proof of any agreement for subsistence and the amounts allowed as such must be here disallowed.


Upon appellant's first point, while there is a great deal to be said for appellant's view that the real agreement between libellant and the charterer was not for wages but for sharing in profits, there is certainly some support in this record for the opposite view, and we are not willing to set the district judge's findings aside as without adequate basis.


The matter stands differently, however, as to the second point.


No libellant testified, nor did any witness on his behalf testify, that the claimed verbal agreement was for wages and subsistence.


The judgment will be modified by striking from it, as to each of the libellants, the allowance for subsistence, and, as modified, will be affirmed.


Modified and affirmed.