618 F.2d 327 (5th Cir. 1980), 79-1998, Liner v. J. B. Talley and Co., Inc.

Docket Nº:79-1998.
Citation:618 F.2d 327
Party Name:Paul Randolph LINER, Plaintiff-Appellant Cross Appellee, v. J. B. TALLEY AND COMPANY, INC., Defendant-Appellee Cross Appellant, North River Insurance Company and International Surplus Lines Insurance Company, Defendants-Appellees.
Case Date:June 02, 1980
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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618 F.2d 327 (5th Cir. 1980)

Paul Randolph LINER, Plaintiff-Appellant Cross Appellee,


J. B. TALLEY AND COMPANY, INC., Defendant-Appellee Cross Appellant,

North River Insurance Company and International Surplus

Lines Insurance Company, Defendants-Appellees.

No. 79-1998.


United States Court of Appeals, Fifth Circuit

June 2, 1980

Page 328

Anthony M. Fazzio, Lafayette, La., for Paul Randolph Liner.

Allen, Gooch & Bourgeois, Arthur I. Robison, Lafayette, La., for all defendants-appellees.

Appeals from the United States District Court for the Western District of Louisiana.

Before GEE, HENDERSON and HATCHETT, Circuit Judges.


Appellant Paul Randolph Liner worked for appellee/cross-appellant J. B. Talley and Company, Inc. ("Talley") from June 29, 1975, to August 13, 1976, and again from December 20, 1976, to January 18, 1977. On January 3, 1978, Liner filed suit against Talley under the Jones Act, 46 U.S.C. § 688, alleging an injury on or about August 12, 1976, while employed by Talley, and claiming seaman's status. He also alleged a breach of defendant's warranty of seaworthiness and claimed entitlement to maintenance and cure. The injury may have occurred while Liner was ashore, welding a piece of discharge pipe from the dredge to which he was assigned. He alleged that the pipe rolled suddenly and knocked him down, causing a hernia.

In the course of the jury trial, the court disposed of the issue of Liner's status, concluding as a matter of law that he was a seaman under the Jones Act. The court also refused to submit the unseaworthiness claim to the jury. The jury returned a verdict for defendant Talley, finding in special interrogatories that Talley was not guilty of negligence toward Liner. The

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question of maintenance and cure had previously been submitted to the court alone by stipulation, and, after the jury verdict, the court awarded Liner maintenance of $4,772 and cure of $1,590, concluding that Liner's hernia manifested itself on August 9, 1976, while he was employed by Talley. Talley's motion for new trial as to the award of maintenance and cure was denied. Liner appeals from the jury verdict, and Talley cross-appeals.


Liner first contends that the trial court committed reversible error in permitting Talley to introduce, under the business records exception, Liner's work record with another employer, Gulf Overseas. The defendant sought to have the record admitted through testimony of Mark East, an employee of Gulf Overseas' accounting department. However, East admitted on voir dire that he did not know who prepared the document and that it was not prepared under his supervision, nor could East testify that the record was prepared at or near the time Liner was hired. The court nevertheless admitted the document.

Under Fed.R.Evid. 803(6), the business record exception to the hearsay rule, the testimony of the custodian or other qualified witness who can explain the record-keeping procedure is essential. If the witness cannot vouch that the requirements of Fed.R.Evid. 803(6) have been met, the entry must be excluded. Coughlin v. Capitol Cement Co., 571 F.2d 290, 307 (5th Cir. 1978). Nevertheless, the admission of documentary exhibits does not warrant reversal absent a showing that substantial rights of the party were affected. Fed.R.Civ.P. 61; Fed.R.Evid. 103(a); Kingsley v. Baker/Beech-Nut Corp., 546 F.2d 1136, 1141 (5th Cir. 1977). The burden of demonstrating that such rights were affected rests with the party asserting error. Coughlin, supra at 307. Liner has not satisfied that burden. He argues only that the evidence tended to show he was unaware of any injury at Talley until he applied for a job with Gulf Overseas. Evidence that Liner sought other employment but was rejected for hernia was already before the jury in the testimony of his former supervisor, Wilton Guillot. No other prejudice in admitting the document is shown.


Liner further contends that counsel for the defense deprived him of a fair trial by making statements in closing argument calculated to appeal to the passion and prejudice of the jury. Of these statements, the most serious involved repeated assertions by defense counsel that the appellant "lied" in numerous parts of his testimony and that if the jury gave appellant the award requested, "he's going to walk out of here laughing . . . (and) he's going to be laughing at you." Counsel for appellant made no objection to these statements at the time.

Case law in this circuit indicates that "we always possess the power to consider errors to which no objection was made." Edwards v. Sears, Roebuck & Co., 512 F.2d 276, 286 (5th Cir. 1975). However, we wish at this time to point out that the Federal Rules of Civil Procedure differ fundamentally from our criminal rules. In the latter, "(p)lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Fed.R.Crim.P. 52(b). No such civil rule exists. Nevertheless, a judge-made "plain error" doctrine has been read into the civil rules by this circuit and others, particularly with regard to jury instructions. 9 Wright & Miller, Federal Practice & Procedure § 2558 at p. 674 (1971); 11 ed. § 2883 at p. 280. We stress again 1 our agreement with the noted scholars just cited: "If there is to be a plain error exception to (Fed.R.Civ.P.) 51 at all, it should be confined to the exceptional case where the error has seriously

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affected the fairness, integrity, or public reputation of judicial proceedings." 9 id. at 675.

We have not limited our plain error doctrine to cases involving erroneous jury instructions but have allowed it to operate in the context of closing arguments to which no objection was made. 2 See Edwards v. Sears, Roebuck & Co., supra ; Hyman v. Insurance Company of North America, 481 F.2d 441, 444 (5th Cir. 1973). Yet Edwards also emphasizes "our continued reluctance to address for the first time on review errors which the trial court was not given an opportunity to consider and correct . . . (especially) when the errors assertedly lie in counsel's closing remarks." 512 F.2d at 286. While it is true that this court in Edwards did reverse on the basis of prejudicial, inflammatory remarks made by counsel in closing argument, the Edwards court had the benefit of a prior finding by the trial judge who, in requiring remittitur, determined that the jury verdict had been improperly influenced by passion and prejudice. Id. at 281-82. Thus, in a sense the...

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