Per Curiam. BUTLER ET AL. v. WHITEMAN. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 200, Misc. Decided April 14, 1958. Certiorari granted. In this case arising under the Jones Act, petitioner's evidence presented an evidentiary basis for jury findings as to whether or not (1) the tug involved was in navigation, (2) the petitioner's decedent was a seaman and member of the crew of the tug within the meaning of the Jones Act, and (3) employer negligence played a part in producing decedent's death. 243 F.2d 563, reversed and cause remanded for trial. PER CURIAM. The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is reversed and the cause is remanded for trial. We hold that the petitioner's evidence presented an evidentiary basis for jury findings as to (1) whether or not the tug G. W. Whiteman was in navigation, Senko v. LaCrosse Dredging Corp., 352 U. S. 370, 373; Carumbo v. Cape Cod S. S. Co., 123 F. 2d 991; (2) whether or not the petitioner's decedent was a seaman and member of the crew of the tug within the meaning of the Jones Act, 41 Stat. 1007, 46 U. S. C. § 688; Senko v. LaCrosse Dredging Corp., supra; Gianfala v. Texas Co., 350 U. S. 879; South Chicago Co. v. Bassett, 309 U. S. 251; Grimes v. Raymond Concrete Pile Co., 356 U. S. 252; and (3) whether or not employer negligence played a part in producing decedent's death. Ferguson v. Moore-McCormack Lines, 352 U. S. 521; Rogers v. Missouri Pacific R. Co., 352 U. S. 500; Schulz v. Pennsylvania R. Co., 350 U. S. 523. For reasons set forth in his opinion in Rogers v. Missouri Pacific R. Co., 352 U. S. 500, 524, MR. JUSTICE HARLAN, J., dissenting. 356 U.S. FRANKFURTER is of the view that the writ of certiorari is improvidently granted. MR. JUSTICE HARLAN, whom MR. JUSTICE WHITTAKER joins, dissenting. I think the evidence is insufficient to raise a question for the jury as to whether petitioner's decedent at the time of the accident was a seaman within the purview of the Jones Act. Respondent was the owner of a wharf, barge and tug, all situated on the Mississippi River. The barge was moored to the wharf, and the tug was lashed to the barge. On October 7, 1953, the decedent met death by drowning in unclear circumstances. He was last seen alive running across the barge to the tug, and it was petitioner's theory of the case that the decedent had fallen into the river between the barge and the tug, and that respondent was liable under the Jones Act because of his negligent failure to provide a gangplank for crossing between the two vessels. For some months before the accident the tug had been withdrawn from navigation because it was inoperable. During the entire year of 1953 the tug had neither captain nor crew and reported no earnings; the only evidence. of its movement during the year related to an occasion on which it was towed to dry dock. At the time of the accident the tug was undergoing rehabilitation preparatory to a Coast Guard inspection, presumably in anticipation of a return to service. During the period of the tug's inactivity, the decedent was employed as a laborer doing odd jobs around respondent's wharf, and on the morning of the accident he had been engaged in cleaning the boiler of the tug. In my opinion it taxes imagination to the breaking point to consider this unfortunate individual to have been a seaman at the time of the accident within the meaning of the Jones Act, and I think that if a jury were so to find, its verdict would have to be set aside. Desper v. Starved Rock Ferry Co., 342 U. S. 187. Because I would affirm the judgment of the Court of Appeals on this ground, I do not reach the question whether the accident was attributable in any way to respondent's negligence. GEORGIA ET AL. v. UNITED STATES ET AL. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA. No. 774. Decided April 14, 1958. 156 F. Supp. 711, affirmed. Eugene Cook, Attorney General of Georgia, E. Freeman Leverett, Assistant Attorney General, W. H. Swiggart, E. R. Leigh, Joseph L. Lenihan and W. L. Grubbs for appellants. Solicitor General Rankin, Assistant Attorney General Hansen, Robert W. Ginnane, Samuel R. Howell and Isaac K. Hay for the United States and the Interstate Commerce Commission, and Henry L. Walker, Arthur J. Dixon and James A. Bistline for the Southern Railway Co. et al., appellees. PER CURIAM. The motions to affirm are granted and the judgment is affirmed. FIDELITY-PHILADELPHIA TRUST CO. AL., CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT. No. 130. Argued January 30, 1958.-Decided April 28, 1958. At the age of 76 and without a medical examination, petitioners' decedent purchased at regular rates three single-premium life insurance policies on her own life, payable to named beneficiaries, and, from the same companies at the same time, as required by these companies, three single-premium nonrefundable life annuity policies. The use and enjoyment of the annuity policies were entirely independent of the life insurance policies; but the size of each annuity was calculated so that, in the event the annuitantinsured died prematurely, the annuity premium, less the annuity payments already made, would combine with the life insurance premium, plus interest, to equal the amount of insurance proceeds to be paid, plus expenses. The decedent received the annuities throughout the remainder of her lifetime; but, paying a gift tax, she irrevocably assigned all rights and benefits under the insurance policies, including the rights to receive dividends, to change beneficiaries, and to surrender or assign the policies. Two policies were assigned to her children and the third to a trustee, the decedent retaining no beneficial or reversionary interest in the trust. Held: The proceeds of the life insurance policies should not be included in the decedent's estate for the purpose of the federal estate tax under § 811 (c) (1) (B) of the Internal Revenue Code of 1939. Pp. 275-281. (a) Helvering v. Le Gierse, 312 U. S. 531, distinguished. Pp. 277-279. (b) Under the assignment, the decedent had not become a life tenant who postpones the possession and enjoyment of the property by the remaindermen until her death. Pp. 278-279. (c) Nor are the assignees like second annuitants in survivorship annuities or joint annuitants in joint and survivor annuities. P. 279, n. 5. (d) The annuity payments were not income from property which the insured transferred to her children under the life insur 274 Opinion of the Court. ance policies, since the use and enjoyment of the annuity policies were entirely independent of the life insurance policies. Pp. 279-281. 241 F. 2d 690, reversed. Robert T. McCracken argued the cause for petitioners. With him on the brief was John B. Leake. Myron C. Baum argued the cause for respondent. With him on the brief were Solicitor General Rankin, Assistant Attorney General Rice and Harry Baum. MR. CHIEF JUSTICE WARREN delivered the opinion of the Court. The question before the Court is whether the proceeds of certain insurance policies on the life of the decedent, payable to named beneficiaries and irrevocably assigned by the insured, should be included in the estate of the decedent for the purposes of the federal estate tax. The facts are not in dispute. In 1934 decedent, then aged 76, purchased a series of annuity-life insurance policy combinations. Three single-premium life insurance policies, at face values of $200,000, $100,000, and $50,000, respectively, were obtained without the requirement of a medical examination. As a condition to selling decedent each life insurance policy, the companies involved required decedent also to purchase a separate, single-premium, nonrefundable life annuity policy. The premiums for each life insurance policy and for each annuity policy were fixed at regular rates. The size of each annuity, however, was calculated so that in the event the annuitant-insured died prematurely the annuity premium, less the amount allocated to annuity payments already made, would combine with the companion life insurance premium, plus interest, to equal the amount of insurance proceeds to be paid. Each annuity policy could have 1 1 Of course, an additional amount is added to the premiums to compensate the insurance companies for expenses. |