Griffin v. Matherne

• Citation: 471 F.2d 911
• Decision Date: 12 March 1973
• Docket Number: No. 71-1418.,71-1418.
• Parties: Elvis GRIFFIN, Plaintiff-Appellant, v. Victor MATHERNE and Otto Candies, Inc., et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

471 F.2d 911 (1973)

Elvis GRIFFIN, Plaintiff-Appellant, v. Victor MATHERNE and Otto Candies, Inc., et al., Defendants-Appellees.

No. 71-1418.

United States Court of Appeals, Fifth Circuit.

January 12, 1973.

Rehearing and Rehearing Denied March 12, 1973.

Kent A. Russell, New Orleans, La., for plaintiff-appellant.

George A. Frilot, III, John Poitevent, New Orleans, La., for National Lead Co., Baroid Div.

Charles E. Lugenbuhl, John M. McCollam, Bernard J. Caillouet, New Orleans, La., for defendants-appellees.

Before WISDOM, GODBOLD and RONEY, Circuit Judges.

Rehearing and Rehearing En Banc Denied March 12, 1973.

GODBOLD, Circuit Judge:

This appeal by the unsuccessful plaintiff is from a judgment entered on a special verdict of the jury consisting of the jury's answers to 28 questions submitted to it pursuant to Rule 49(a) Fed.R.Civ.P.¹ The issue is whether the jury's answers were so inconsistent with each other and with the judgment based on them that the District Court erred in entering judgment for defendants Matherne, Humble and National Lead. We conclude that judgment was properly entered for defendants Matherne and Humble, and as to them affirm, but was erroneously entered for National Lead, and as to that defendant we reverse and remand.

Plaintiff was captain of the tug DENVER, owned by Matherne and under charter to Humble. The DENVER was made up to an Humble barge, and both tug and barge were moored to an Humble dock facility. Prior to plaintiff's injury employees of National Lead delivered to the barge sacks of finely textured drilling mud. There was evidence that National Lead's employees ripped the sacks and that dust from them combined with rain and wind to create a slippery condition across the decks of the barge and the DENVER. Plaintiff was injured when he slipped and fell while attempting to step up from the bulwark of the DENVER to the barge.

We set out in the margin the questions to the jury and the jury's answers, with the exception of those which have no bearing on this appeal.² The jury found that defendants Matherne and Humble were not negligent numbers 1, 9 and 10. It found that National Lead was negligent number 6A, that National Lead failed to load the cargo of mud in a reasonably safe, proper and workmanlike manner number 27, that National Lead's negligence was merely passive and technical rather than active number 8, but that such negligence was not a proximate cause of plaintiff's injuries number 7. The jury also found that plaintiff was negligent number 14 and that his negligence was a proximate cause of his injuries number 15. The jury determined the percentage that plaintiff was negligent "as compared to the other parties, if any," as 20% number 16.³ It fixed the total dollar amount of damages sustained by plaintiff as the result of his alleged injuries at $105,000 number 17.

After the jury retired and before giving its answers, it returned to the courtroom. A colloquy then occurred in which the foreman stated, "there is some dissent here as to the damages, monetary damages that should be awarded to the plaintiff." Later in the exchange with the court the foreman asked whether the jury was supposed to put down a dollar figure in response to question 17, and said: "The rest of the jury does not know, they would like to know what the plaintiff's attorney is going to get, his cut, in awarding the dollars." The court instructed the jury that it was not to consider the amount of counsel's fees, if any, and that it should answer the questions as phrased and thereby inform the court of the amount of damages the plaintiff suffered.

Entry of judgment upon a jury's special verdict with written findings of fact is subject not only to precedential guidelines but to a constitutional restraint as well. The Seventh Amendment requires that if there is a view of the case which makes the jury's answers consistent, the court must adopt that view and enter judgment accordingly. Atlantic & Gulf Stevedores v. Ellerman Lines, 369 U.S. 355, 364, 82 S.Ct. 780, 786, 7 L.Ed.2d 798, 806-807 (1962). This court has stated that the test to be applied in reconciling apparent conflicts between the jury's answers is whether the answers may fairly be said to represent a logical and probable decision on the relevant issues as submitted, even though the form of the issue or alternative selective answers prescribed by the judge may have been the likely cause of the difficulty and largely produced the apparent conflict. R. B. Company v. Aetna Insurance Company, 299 F.2d 753, 760 (5th Cir. 1962). If on review of the district court's judgment we find that there is no view of the case which makes the jury's answers consistent and that the inconsistency is such that the special verdict will support neither the judgment entered below nor any other judgment, then the judgment must be reversed and the cause remanded for trial anew. Missouri Pacific Ry. Co. v. Salazar, 254 F.2d 847, 849 (5th Cir. 1958); Wright v. Kroeger Corporation, 422 F.2d 176, 178-179 (5th Cir. 1970).

In McVey v. Phillips Petroleum Co., 288 F.2d 53 (5th Cir. 1961), a negligence case, the District Court had entered judgment for the defendant upon a Rule 49(a) special verdict in which the jury had found first that the two plaintiffs were not injured by the radiation accident alleged in the complaint, but had then filled in with dollars and cents figures the spaces on the verdict form next to questions calling for the sum of money which the jury determined would reasonably compensate the plaintiffs for injuries sustained as the proximate result of the accident sued on. The jury, after beginning its deliberation, had requested additional instructions as to whether it should answer the damages questions if it found, in answer to the prior questions concerning injury, that the plaintiffs had not been injured by the radiation accident alleged. The trial court reminded the jury that its function was to answer the questions on the evidence presented and not to determine the effects of any of its answers, and that, therefore, it should also answer the damages questions. The jury responded by answering the damages questions with dollar and cents entries, but attached to its answers a written "qualification and explanation" stating that any radiation damage suffered by plaintiffs was not caused by the accident the plaintiffs alleged but by accumulation of prior and past exposures not alleged as the basis for recovery. In disposing of the appeal this court first noted that a special verdict is to be construed in light of the surrounding circumstances, including the trial court's instructions. We held that the initial questions calling for jury determination of plaintiffs' injuries were unambiguous and that the negative answers thereto effectively negated an essential element of plaintiffs' negligence case, while the questions which elicited the monetary damages figures were ambiguous, as evidenced by the jury's unsolicited written explanation which pointed out the ambiguity and made clear that the jury did not want plaintiffs to recover for the accident alleged. We concluded that the District Court did not err in holding that the inconsistency in the jury's answers was more apparent than real because the jury's intent that plaintiffs not recover was clear. McVey illustrates that the court, in determining whether the jury has sufficiently expressed its intent on the factual issues properly before it under Rule 49(a) to warrant the entry of judgment, can consider the jury's expressions on matters extrinsic to its categorical answers to the questions submitted. McVey's emphasis on construing the jury's special verdict in light of the circumstances surrounding its formation and expression has been recognized and followed by this court and others. Wright v. Kroeger Corp., supra 422 F.2d at 178; R. H. Baker & Co. v. Smith-Blair, Inc., 331 F.2d 506, 509 (9th Cir. 1964). See also Martin v. Gulf States Utilities Co., 344 F.2d 34, 37 (5th Cir. 1965).

Applying the approach suggested by McVey, we we are not able to reconcile the jury's answers insofar as they relate to National Lead. By answer 6a National Lead was found to be at fault. By answer 8 the nature of National Lead's fault was described as passive rather than active. By number 16 the jury fixed the negligence of the "other parties" as compared to that of plaintiff to be 80% and nothing elsewhere tells us with certainty that National Lead was excluded from the phrase "other parties." Number 17, fixing the damages, and the colloquy of the jury with the court concerning the share to go to plaintiff's attorney, considered together, evidence an intent on the part of the jury that some defendant, one or more, was to be liable to plaintiff in dollars and cents. In McVey we looked to the written "qualification and explanation" from the jury as an aid to its intent, and that communication pointed toward nonliability. Here we look to another source extrinsic to the verdict itself — the colloquy between jury and judge — and it points toward an intent that there be liability.

Since only National Lead was found to be guilty of fault answers 6a and 8 while Humble and Matherne were found to be free from fault answers 1, 9 and 10, the finger of liability points at National Lead.⁴ Yet by answer 7 the jury found National Lead's negligence not a proximate cause of plaintiff's injury. Nothing occurring in the trial, in the court's instructions, or in the arguments made to us on this appeal, enables us to make the jury's inconsistent answers into a consistent expression of intent that National Lead is either liable or excluded from liability. Thus we reject the contention of plaintiff that the court was required to enter judgment in his favor, and, at the same time reject as improperly entered the judgment discharging National Lead.

On the other hand, we are not able to say that the District Court erred in entering...