Giacalone v. Raytheon Manufacturing Co.

• Decision Date: 06 May 1955
• Docket Number: No. 4895.,4895.
• Citation: 222 F.2d 249
• Parties: Angelo GIACALONE, Plaintiff-Appellant, v. RAYTHEON MANUFACTURING CO., Defendant-Appellee.
• Court: U.S. Court of Appeals — First Circuit

222 F.2d 249 (1955)

Angelo GIACALONE, Plaintiff-Appellant, v. RAYTHEON MANUFACTURING CO., Defendant-Appellee.

No. 4895.

United States Court of Appeals First Circuit.

May 6, 1955.

Thomas B. Shea, Boston, Mass., with whom Leo P. Doherty, Boston, Mass., was on brief, for appellant.

Samuel P. Sears, Boston, Mass., for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

WOODBURY, Circuit Judge.

The plaintiff-appellant, a citizen of Massachusetts, brought suit in the court below in two counts, one sounding in tort for negligence and the other sounding in contract for breach of warranty, against the defendant, a Delaware corporation, to recover damages for the loss of his fishing vessel "Marsala" which burned and sank while on a fishing trip. Since there can be no doubt that the matter in controversy exceeds the sum or value of $3,000, exclusive of interest and costs, it follows that federal jurisdiction under Title 28 U.S.C. § 1332 (a) (1) is clearly established.

The principal, indeed the only, really contested issue of fact at the trial was as to the cause of the fire. The plaintiff contended that it started in a Fathometer installed on the vessel several years before by the defendant's assignor, Submarine Signal Company, under a lease arrangement whereby the lessor retained title to the instrument and agreed to inspect it and keep it in repair, and the plaintiff as lessee agreed that he would not "assign, transfer, sublet or in any way charge or deal" with the equipment, or remove it or alter its position in the vessel, except temporarily in case of emergency, without notice to the lessor and its written consent. The plaintiff says in his complaint that an agent of the defendant repaired the Fathometer about two weeks before the fire, and at that time replaced some of its parts, and that either the agent did his work negligently or the defendant negligently supplied defective parts, count one; or that the repairs were not made in a good and workmanlike manner, or the new parts were not reasonably safe and suitable for their intended purpose, count two.

The defendant admits the lease of the equipment by Submarine Signal Company, its assumption of that company's liabilities and obligations under the lease, and that the lease was in effect at the time of the fire. It also admits that its agent made repairs to the Fathometer and replaced some of its parts about two weeks before the fire. It, of course, denies its negligence or breach of warranty, and furthermore it says that the construction of the instrument was such that it was physically impossible for it to catch on fire.

A trial by jury resulted in the entry of a judgment for the defendant on both counts and this appeal by the plaintiff followed in due course.

The plaintiff-appellant complains of the judgment against him on several grounds, one of which is that it was not entered on a verdict properly returned for the defendant. We find no merit in this contention.

When the jury came back into court after it had retired to consider its verdict the foreman announced that agreement had been reached and he handed a verdict to the court which read "Not Guilty." The court read the verdict and said to the jury: "You have recorded the words `Not Guilty.' Do you mean to find for the defendant on each count?" The foreman replied: "Yes, your Honor," and the court said: "So say you all?" The other jurors indicated their assent and the court then said: "The words `Not Guilty' should not be included. That is for a criminal case." Thereupon the clerk spoke to the jury as follows: "Mr. Foreman, Ladies and Gentlemen of the Jury: Harken to your verdict as the Court has recorded it. On both counts of the complaint you have found for the defendant. So say you, Mr. Foreman? So say you all, Ladies and Gentlemen of the Jury?" There being no dissent the jury was discharged.

Appellant's counsel does not, nor can he in view of the interrogation of the jury by the court and the clerk, complain too loudly about the verbal irregularity of the written verdict handed in by the foreman. Counsel's argument is that the verdict of "Not Guilty" indicates that the jury must have thought that the case was a criminal one, and therefore it must have assumed that to prevail the plaintiff had to prove his contention as to the cause of the fire, not by a mere preponderance of the evidence, but beyond a reasonable doubt. The argument is built upon a foundation of sand for on two occasions in the charge the court explicitly told the jury that the plaintiff had the burden of proving his case only by the "greater weight of the evidence." This contention does not warrant further discussion.

The appellant's principal complaint is that the jury was not properly instructed on the issue of negligence. We agree that the instruction given on this issue was vague, general, and not as informative as it should have been. But it is an open question whether the inadequacy of the charge on this issue was more harmful to the plaintiff than to the defendant. At any rate, neither counsel for the plaintiff nor counsel for the defendant objected to the instruction before the jury retired to consider its verdict as required by Rule 51, F.R.C.P., 28 U.S.C.A., and hence according to that Rule the failure to instruct properly on the issue of negligence cannot be assigned as error.

It does not follow from this, however, that under no circumstances can we consider the error on our own volition. Shokuwan Shimabukuro v. Higeyoshi Nagayama, 1944, 78 U.S.App.D.C. 271, 140 F.2d 13, 15, certiorari denied, 1944, 322 U.S. 755, 64 S.Ct. 1270, 88 L.Ed. 1584. Appellate courts have inherent power in civil cases, even in the absence of a rule of court similar to the rule referred to in the case cited above and to the Rules of the Supreme Court mentioned in the Mahler and Sibbach cases, infra, to notice plain errors not brought to the attention of the court below, but the power is exercised only in exceptional cases or under peculiar circumstances to prevent a clear miscarriage of...