427 F.2d 897 (5th Cir. 1970), 27401, Delancey v. Motichek Towing Service, Inc.

Docket Nº:27401.
Citation:427 F.2d 897
Party Name:Billy Ray DELANCEY, Plaintiff-Appellant, v. MOTICHEK TOWING SERVICE, INC., Defendant-Appellee.
Case Date:June 01, 1970
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 897

427 F.2d 897 (5th Cir. 1970)

Billy Ray DELANCEY, Plaintiff-Appellant,

v.

MOTICHEK TOWING SERVICE, INC., Defendant-Appellee.

No. 27401.

United States Court of Appeals, Fifth Circuit.

June 1, 1970

Page 898

Reginald T. Badeaux, Jr., John G. Discon, Darryl J. Tschirn, New Orleans, La., for plaintiff-appellant.

William E. Wright, New Orleans, La., for defendant-appellee.

Before WISDOM, SIMPSON and CLARK, Circuit Judges.

WISDOM, Circuit Judge.

Billy Ray Delancey sued his employer, Motichek Towing Service, Inc., for damages under the Jones Act, 46 U.S.C. § 688 et seq., and for maintenance and cure under the general maritime law. He sustained his injuries in an automobile accident while returning to Motichek's tug, BIG MOT with beer to wash down dinner. Delancey served as a deckhand and watchman on the BIG MOT. The jury decided against Delancey. So do we. The jury found that he was not entitled to damages under the Jones Act because his accident did not occur while he was in the course and scope of his employment. The jury decided that he could not recover for maintenance and cure because he was not in the service of his vessel when injured. On appeal, Delancey questions the district court's instructions relating to his claim under the Jones Act, particularly the court's failure to instruct the jury as to what constitutes willful misconduct. Delancey does not question the correctness of the district court's instructions relating to his claim for maintenance and cure. We affirm.

I.

Delancey was a deck hand aboard the BIG MOT. It is a small tug. The crew usually consists of the owner, Othmar H. Motichek, who serves as master, and several deck hands. April 21, 1967, the BIG MOT tied up for the weekend at the Louisiana Cement Company dock in New Orleans. Motichek ordered Delancey to remain on board at watchman and to ready the vessel to resume operations Monday, April 24. Upon leaving the vessel, Motichek asked Herbert Seals, the vessel's first mate, according to Delancey, to find a deck hand available for work on Monday. Delancey's tour of duty was at an end and the new deck hand was to be his replacement.

April 22, Seals, while at home in Bogalusa, a small town near New Orleans, asked Jerry Woodward to work on the BIG MOT. He agreed. According to the plaintiff, Seal then called Motichek and informed him of Woodward's availability. Motichek is said to have approved of Woodward as Delancey's replacement. On Sunday, April 23, Seals and Woodward, in Woodward's car, left Bogalusa for New Orleans. On the way, they stopped twice to purchase beer and drove while consuming the last beer.

When they arrived in New Orleans, Seals asked Delancey if he would remain on board the vessel in order to assist in training Woodward. Delancey agreed. He devoted the remainder of the day to training Woodward as to the maintenance and operation of the vessel.

As the dinner hour drew near, Seals, who was in the galley preparing dinner, realized that there was nothing on board to drink with the meal. He gave Woodward five dollars and asked him to go ashore to purchase beer. Woodward agreed and Delancey accompanied him. They began their return to the vessel after purchasing the beer and gasoline for Woodward's car. At about 7:00 p.m. Woodward's car, in which Delancey was a passenger, struck the rear end of an automobile that was stopped at an intersection

Page 899

to make a turn. Both Woodward and Delancey were severely injured.

Delancey's claim for damages under the Jones Act was predicated upon the contention that Seals was the first mate of the vessel and therefore was either expressly or impliedly authorized to hire Woodward and to instruct Woodward and Delancey to go ashore 1 and purchase beer for the vessel. In accord with this theory, at the time of the accident both Woodward and the plaintiff were within the course and scope of their employment. Woodward's negligence in striking a stopped automobile would be imputed to his employer thus giving rise to Motichek's liability to the plaintiff. As to the claim for maintenance and cure, Delancey contended that he was injured in the service of the vessel, that he was employed by the defendant-appellee, and that the accident did not result from his willful misconduct.

The defendant contends that Seals was not the first mate of the vessel, but a deck hand in the same class as Delancey and Woodward and had no authority, express or implied, to give orders to any of his fellow deck hands to purchase beer for the vessel. The defendant asserts that Seals had no authority to hire Woodward but was authorized only to refer Woodward to Motichek, who would make the final decision on Monday concerning his employment. According to the defendant, the accident occurred while appellant was not in the service of the vessel, since Delancey left his post while on duty, and purchased and transported beer to the vessel in violation of standing instructions not to do so. As to maintenance and cure, the defendant asserts that Delancey was not in the service of his ship since he was engaging in a joint venture with Woodward that included an unauthorized search for beer, drinking beer on the return trip to the vessel, and gross acts of misconduct in speeding at night without lights on a dangerous highway.

II.

We need not go into the evidence in detail. The contentions of each side were supported by evidence properly submitted to the jury. Reasonable men on a jury might differ on the facts and the inferences to be drawn from the facts.

At the close of the plaintiff's case, the defendant moved for a directed verdict on the Jones Act portion of the case. The defendant argued that the plaintiff had failed to establish that Seals had any authority to order Delancey to go ashore to purchase beer and that unless such authority was clearly established Seals was acting beyond the course and scope of his employment; that Seals therefore was not acting for Motichek at the time of the accident and Delancey's injury would not have occurred while he was in the course and scope of his employment. This argument was similarly advanced to apply to Woodward in that he could not have been in the course and scope of his employment if the man who ordered him to go ashore had exceeded his authority. The defendant contended that since the judge had previously decided upon the instruction that he was going to submit to the jury and since the instruction was essentially the same as the ground asserted for a directed verdict, as a matter of law, the plaintiff could not recover under the Jones Act.

The plaintiff argued that the defendant's requested instruction relating to a fellow employee's authority to issue orders was an incorrect statement of the law. The plaintiff then argued that the issue was not limited to whether a fellow employee had the authority to issue certain orders, but in addition whether the plaintiff was guilty of willful misconduct so as to remove him from the scope of his employment thus precluding recovery of his claim under the Jones Act. It was the plaintiff's position that both theories should be submitted to the jury for their determination.

Page 900

The defendant's motion was properly denied.

At the close of the instructions to the jury, the judge afforded the attorneys an opportunity to state their objections. Counsel for the plaintiff stated:

Your Honor, the plaintiff would like to make the following objections to the charges as given by number.

In regard to defendant's submitted special charges 5 and 6 we would like to object to the Court having given those charges.

Additionally, we would like to lodge an objection to the Courts failure to instruct, or define the term 'willful misconduct'.

Other than that your Honor, we have no objection.

The jury returned a verdict in favor of the defendant specifically finding that Delancey's injury did not occur while he was in the course and scope of his employment or while he was in the service of his ship. 2

III.

A. In oral argument and in his brief, Motichek contends that Delancey failed to comply with Rule 51 of the Federal Rules of Civil Procedure 3 concerning the objection to the submission of the defendant's requested instructions. Motichek asserts that Delancey's objection was vague and indefinite and accordingly failed to preserve this point for review. Williams v. Atlantic Coast Line R.R., 5 Cir. 1951, 190 F.2d 744.

Rule 51 expressly requires that the party objecting to any instruction must state 'distinctly the matter to which he objects and the grounds of his objection'. This Court has consistently held that the specifications of errors dealing with the giving of or failure to give instructions will not be considered unless the party objects in the manner provided by the rule. Nowell v. Dick, 5 Cir. 1969, 413 F.2d 1204; Guest House Motor Inn, Inc. v. Duke, 5 Cir. 1967, 384 F.2d 927; Cockrell v. Ferrier, 5 Cir. 1967, 375 F.2d 889; Williams v. Hennessey, 5 Cir. 1964, 328 F.2d 490, 491; Pruett v. Marshall, 5 Cir. 1960, 283 F.2d 436; Williams v. Atlantic Coast Line R.R., 5 Cir. 1951...

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