Comeaux v. T. L. James & Co., Inc.
| Citation | 666 F.2d 294 |
| Decision Date | 28 January 1982 |
| Docket Number | No. 79-2127,79-2127 |
| Parties | Lester P. COMEAUX, Sr., Plaintiff-Appellant, v. T. L. JAMES & COMPANY, INC. and Highlands Insurance Company, Defendants-Appellees. . Unit A * |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Brumfield & Brumfield, H. Alva Brumfield, III, Sylvia Roberts, Baton Rouge, La., for plaintiff-appellant.
Francis Emmett, New Orleans, La., for defendants-appellees.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before BROWN and POLITZ, Circuit Judges **.
Lester Comeaux sued his employer, T. L. James & Co., Inc., for injuries sustained from two successive accidents while working aboard a dredge and its tender vessels. Appealing a judgment based on a jury verdict in his favor, Comeaux complains of the denial of his motion for a directed verdict and a new trial, the exclusion of evidence, prejudicial conduct by the court, misleading and insufficient jury instructions, and insufficient evidence to sustain certain jury findings. Having determined that Comeaux was entitled to a directed verdict on the issue of unseaworthiness, we reverse in part and remand. 1
Lester Comeaux was employed by T. L. James & Co. as a mate on the dredge ARMADILLO, located off the coast of Mississippi at Bayou Cadet. As part of his duties, he normally supervised a crew of three deckhands and two boathands in maintaining the pontoon lines. The pontoon line, a 22 inch diameter floating discharge pipeline, is mounted above floating cylinder tanks with a catwalk built over it. The line has lights, battery powered, at approximately 50 foot intervals, to warn other vessels of the presence of the line and to aid the crew in making sure that the line has no bends. As the dredge moves forward, the line must be kept relatively straight and with sufficient slack to prevent it from breaking. To perform his duties, Comeaux made use of two work boats, the MISS FRANCES and the BEN JAMES.
On October 2, 1977, upon reporting for work at 11:00 p.m., Comeaux discovered he had no boathands or deckhands to assist him in his duties, as these other crew members had quit the previous day. The prior shift had prepared the pontoon lines with sufficient slack for the dredge to continue moving forward for approximately three hours. Comeaux was also advised by the prior shift that the lights on the pontoon line were out. Because of the rough weather and lack of crew, Comeaux told his immediate supervisor, the leverman, that dredging operations should be suspended until he could secure some help in maintaining the pontoon lines. The leverman told Comeaux to go do his job, and rather than waking the crew from the previous shift, to get the galleyhand, Larry Tucker, to assist him. Tucker had no experience as a deckhand or boathand and in addition was blind in one eye.
Sometime between 2:00 and 3:00 a. m. the slack in the pontoon lines as arranged by the prior crew was no longer sufficient and Comeaux determined that more line would have to be pulled in order to keep up with the dredge. Since the nonfunctioning battery powered lights on the line were necessary to see the line for pulling, Comeaux and Tucker proceeded to take the MISS FRANCES out to replace the batteries. This could be done by holding or putting the vessel against the cylinder and having a crew member alight and replace the batteries, while another crew member controlled the vessel. Since Tucker, afraid of falling overboard, refused to change the batteries, Comeaux piloted the MISS FRANCES to the pontoon lines, positioned the bow against the cylinder, put it in forward gear, and instructed Tucker to hold the wheel as steady as possible while Comeaux attempted to replace the batteries.
While Comeaux was changing a battery, Tucker either moved the wheel or tampered with the controls causing the MISS FRANCES to move forward. This movement caused Comeaux to lose his balance and fall on his back. He was almost killed when the bow of the boat ran over him with Tucker, the inexperienced galleyhand, at the wheel. After running the MISS FRANCES back to the dredge and reporting the accident, Comeaux was subsequently transferred to the hospital in Bay St. Louis, Mississippi, where he was treated for a contusion and tenderness over the lower lumbar and sacral area by Dr. Phillips.
Comeaux, in considerable pain, continued to work for several more days until the job at Bayou Cadet was finished and the dredge moved to the mouth of the Pearl River where the pontoon lines were prepared for towing to another location. It is at this time that Comeaux allegedly suffered a second injury to his back. Apparently Comeaux and his crew were fastening the pontoon lines together when the BEN JAMES rammed into the line and knocked Comeaux and two deckhands overboard. Comeaux asserted that the second accident was caused by a defective throttle on the BEN JAMES.
According to Comeaux, following this second accident, he returned to the dredge and reported the incident to Glenn Trahan, Assistant Safety Engineer, and Captain Kidder. Comeaux left work and shortly thereafter consulted an orthopedic specialist, Dr. Longnecker, in Biloxi, Mississippi, and Dr. Morse, an associate of Dr. Longnecker. After two operations on his back, Comeaux continues to suffer pain and is unable to perform work requiring heavy lifting or bending.
On February 1, 1978, Comeaux brought suit against his employer, T. L. James (James), and its insurer, Highlands Insurance Co. (Highlands) under the Jones Act, 46 U.S.C. § 688 and General Maritime Law claiming a ruptured disc resulting from these two accidents, each of which was brought about by the negligence of James, the unseaworthiness of the dredge and the two tender vessels, or both.
At trial, evidence of the first accident and the circumstances surrounding it was presented in the form of testimony by Comeaux and by the deposition of Larry Tucker, the galleyhand. As to the second accident, the evidence consisted of testimony by Comeaux and the depositions of three eyewitnesses, Ricky Mitchell and Jesse Parker, two crew members working with Comeaux on the pontoon lines, and Thomas Bailey, a crew member on board the BEN JAMES. Several doctors, both in person and in the form of depositions, testified as to the nature and extent of Comeaux's injuries. James presented only two witnesses, Glenn Trahan, a safety engineer employed by it, and Gerald Busich, an insurance adjuster. Their testimony focused largely on the second accident and attempted to establish the nonexistence of this accident. James' theory that no second accident occurred was based on the lack of an accident report, Comeaux's alleged failure to mention the second accident to the insurance adjuster or to his doctors, and the differing dates and time of day given for the accident by the witnesses. Trahan also was questioned on the acceptable procedures for changing the battery for pontoon lights.
The case was submitted to the jury under F.R.Civ.P. 49(a) with a general charge and special interrogatories covering each accident, under both Jones Act negligence and unseaworthiness. 2 As to the first accident, the jury found Jones Act negligence on the part of James and no unseaworthiness of either the dredge or the workboat MISS FRANCES as proximate cause. The verdict fixed damages in the amount of $150,000 but the jury determined that Comeaux was contributorily negligent to the extent of 75%. The jury made a finding that no second accident had occurred. Judgment was entered in the amount of $37,500 ($150,000 reduced by 75%). Comeaux's motions for j.n.o.v., new trial, and additur were denied.
On appeal, Comeaux's primary contention is that the District Court should have granted a directed verdict on the issue of unseaworthiness in the first accident. Also, Comeaux asserts that there is no evidence to support the finding of contributory negligence as to that accident. As to the second accident, Comeaux argues that the jury's finding is contrary to the evidence. Additional errors are urged based on exclusion of evidence, questioning of experts by the court, instructions to the jury, and actions of the defense counsel.
James' primary response as to unseaworthiness in the first accident is that since Comeaux received a verdict in his favor on the Jones Act case the issue of unseaworthiness is of no consequence. It is "like winning a football game 7 to 0 versus 14 to 0." James asserts that there is sufficient evidence to sustain the finding of 75% contributory negligence and that such finding would apply both to the claim of Jones Act negligence and to unseaworthiness.
As to the second accident, James asserts that there was sufficient evidence to sustain the jury finding (Int. No. 8) that no accident occurred. This took the form of (1) the variation in the testimony as to the time and date given for the accident by the eyewitnesses, (2) Comeaux's failure to recall the exact date of the alleged second accident, (3) his failure to mention the second accident to his treating physicians and the insurance adjuster and (4) the testimony of Trahan that plaintiff had not reported a second accident. Comeaux testified that he reported the second accident to Trahan and also to Captain Kidder. Kidder was sworn as a witness by the court but was released by James without leave of court and therefore not available to Comeaux as a rebuttal witness to Trahan's testimony that Comeaux never reported the second accident. Comeaux asserts that the District Court erred in subsequently excluding as rebuttal testimony Kidder's pretrial deposition in which he stated that the accident had been reported to him (Kidder).
Finding that Comeaux was entitled as a matter of law to a directed verdict on the issue of unseaworthiness in the first accident, we reverse in part and remand. While we affirm the finding of Jones Act...
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