Savoie v. Otto Candies, Inc.

• Decision Date: 29 November 1982
• Docket Number: No. 81-3084,81-3084
• Parties: , 12 Fed. R. Evid. Serv. 269 Michael SAVOIE, Plaintiff-Appellee Cross-Appellant, v. OTTO CANDIES, INC., Defendant-Appellant Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 363

692 F.2d 363

1985 A.M.C. 220, 12 Fed. R. Evid. Serv. 269

Michael SAVOIE, Plaintiff-Appellee Cross-Appellant, v. OTTO CANDIES, INC., Defendant-Appellant Cross-Appellee.

No. 81-3084.

United States Court of Appeals, Fifth Circuit.

Nov. 29, 1982.

Rufus C. Harris, III, Roger D. Allen, New Orleans, La., for defendant-appellant cross-appellee.

Leonard A. Radlauer, New Orleans, La., for plaintiff-appellee cross-appellant.

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

Before COLEMAN, POLITZ and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge:

This is an appeal from a judgment for damages rendered in favor of Appellee in an action brought under the Jones Act, 46 U.S.C. 688. Respecting the primary questions presented, we hold that there is sufficient evidence to support the jury's finding that Appellee was a Jones Act seaman at the time of his October 1979 injury; that the admission of evidence of maintenance payments made by Appellant to Appellee was not reversible error; and that there is sufficient evidence to support the jury's finding that Appellee was contributorily negligent. The trial court's judgment is affirmed.

I.

Appellant Otto Candies, Inc. is engaged in the marine transportation business. It employs approximately 300 workers and operates 80 vessels. In February 1978, Candies hired Appellee Michael Savoie to work as a deckhand aboard its vessels. Savoie worked as a deckhand until August 18, 1978, when he suffered a fractured leg in an automobile accident. A metal rod was inserted into Savoie's leg to provide support, and he was unable to work for about nine months.

Savoie returned to work on June 18, 1979, and was assigned to the M/V ADELLE CANDIES. He worked on this vessel as a deckhand until September 21, 1979, when he left work to have the metal rod removed from his leg. Savoie's doctor, Dr. Raymond Horn, surgically removed the metal rod on September 28, 1979. Dr. Horn told Savoie that he could return to regular duty in six weeks. On October 11, 1979, Dr. Horn released Savoie for light duty. On or about October 15, 1979, Savoie went to Candies' office and presented a duty slip, prepared by Dr. Horn's office, on which both light duty and regular duty were circled. A Candies employee, Wayne Andrus, after consulting with Dr. Horn's nurse, determined that Savoie was fit for regular duty, and Savoie returned to the M/V ADELLE CANDIES as a deckhand. On or about October 20, 1979, Savoie boarded the vessel. The next day, however, Andrus learned from Dr. Horn's office that Savoie was, in fact, restricted to light duty, and Andrus had Savoie taken off the vessel.

On October 26, 1979, Savoie went to Candies' office to pick up his paycheck. A Candies employee, Captain Welch, asked Savoie if he wanted a light duty job. Savoie accepted, and Captain Welch told him to be at the office the next morning. The next morning, Paul Candies, vice president of Otto Candies, Inc., told Savoie to clean some duck blinds owned by Otto Candies, Inc. and located on land leased by it.

The duck blinds were located in a pumped out marsh. In the area where Savoie was working, however, the ground was muddy, and the terrain was uneven. While he was cleaning the third duck blind, Savoie refractured his leg. This injury is the only one of relevance to this case. ¹

Savoie filed suit against Otto Candies, Inc. under the Jones Act. The jury, in response to special interrogatories, found that Savoie was a Jones Act seaman at the time of the October 1979 accident; that Otto Candies, Inc. was negligent, and that such negligence was a cause of the injury; that Savoie's damages were $80,000; and that Savoie was contributorily negligent in an amount of 20 percent. The trial court rendered judgment for Savoie for $64,000. Candies does not complain of the findings that its negligence was a cause of the injury, the percentage of negligence attributable to it, or the amount of Savoie's damages.

II.

Candies contends that the jury's finding that Savoie was a Jones Act seaman is contrary to law and to the evidence. It argues that Savoie had no vessel connection when he was injured, for he was physically unable to work on a vessel, and therefore, not subject to the call of a vessel. We disagree.

The standard for testing a jury's finding that a worker is or is not a Jones Act seaman is whether there is a reasonable evidentiary basis to support that finding. Normally the question of seaman status in a particular case is to be resolved by the fact finder. Senko v. LaCrosse Dredging Corporation, 352 U.S. 370, 374, 77 S.Ct. 415, 417, 1 L.Ed.2d 404, 408 (1957) ("the determination of whether an injured person was a 'member of a crew' is to be left to the finder of fact"); Abshire v. Seacoast Products, Inc., 668 F.2d 832, 835 (5th Cir. 1982); Guidry v. South Louisiana Contractors, Inc., 614 F.2d 447, 454 (5th Cir. 1980) ("seaman status ordinarily is a jury question"); Hardaway Contracting Company v. O'Keeffe, 414 F.2d 657, 660 (5th Cir. 1968); Bodden v. Coordinated Caribbean Transport, Inc., 369 F.2d 273, 275 (5th Cir. 1966). Applying that standard here, we hold that there was sufficient evidence for the jury to find that Savoie was a Jones Act seaman when he was injured.

It is undisputed that Savoie was injured in the course of his employment for Candies and that he was a Jones Act seaman in Candies' employ at some point not long before his injury. Once it is established that a worker is a seaman, it is not necessary that the tasks he performs at the time he is injured be related to the service of a vessel. Higginbotham v. Mobil Oil Corporation, 545 F.2d 422, 432 (5th Cir. 1977), rev'd on other grounds, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978).

"However, Higginbotham does not imply that a maritime worker assigned to work ashore for a very long period of time would continue indefinitely to be a seaman merely because it is contemplated that he will some day return to the vessel, nor that a seaman's status continues if he commences work for another employee." Guidry, 614 F.2d at 453.

The crucial question is whether Savoie remained a seaman on October 27, 1979, the date of his injury.

"[H]ow long a seaman's status continues after a shoreside assignment is itself a fact question dependent on such factors as the duration of the assignment, its relationship to the employer's business, whether the employee was free to accept or reject it without endangering his employment status and any other factors relevant to the ultimate inquiry: at the moment of injury was the employee a seaman by conventional Jones Act criteria who happened not to be on navigable waters, or was he at that time no longer a seaman whatever his past relationship or his future prospects?" Guidry, 614 F.2d at 453.

Seven days before his injury, Savoie was working aboard the M/V ADELLE CANDIES as a deckhand. As a deckhand, it was Savoie's job to clean the vessel and to keep it in shape. Although there is no evidence of precisely how long Savoie's assignment to clean the duck blinds was to last, it is quite evident that it was not a task of extended duration, and Savoie had worked on the blinds only an hour before he was injured. Moreover, Savoie was to return to regular duty aboard the M/V ADELLE CANDIES in two weeks. The duck blinds were used to entertain Candies' business clients, and the evidence shows that Savoie was reluctant to reject his employer's direction that he clean them.

Apart from the factors listed in Guidry, Candies argues that Savoie was physically incapable of performing his duties aboard a vessel. There is, however, no conclusive evidence that Savoie was physically incapable of performing light duty aboard a vessel. ²

In summary, the evidence was sufficient to support a finding that the assignment to clean the duck blinds was temporary; and that most recently when Candies considered Savoie healthy, he was routinely reassigned to "his" vessel as a deckhand. Nothing in the record conclusively establishes that Savoie's general pattern of employment with Candies as a deckhand was changed by the temporary assignment to clean its duck blinds. Higginbotham, 545 F.2d at 433.

Candies contends that the trial court's charge to the jury concerning seaman status was strongly prejudicial, and in effect, compelled the jury to find that Savoie was a seaman when he was injured. We disagree.

The court instructed the jury as follows:

"A seaman is injured 'in the course of his employment' when, at the time of injury, he was doing the work of his employer, that is, he was working in the service of the vessel as a member of her crew.

"Now, in order for the plaintiff to establish that he was a 'member of the crew' of a vessel, he must prove that he was assigned more or less permanently to the vessel, or that he performed a substantial part of his work on it. He must also prove that the capacity in which he was employed or the duties that he performed contributed to the function of the vessel's regular operation or to the accomplishment of its mission.

"A Jones Act 'seaman,' however, can still recover from his employer even for injuries received while he is on shore. Nor does the act require that the tasks he is performing at the time he is injured be related to service of the ship. A seaman does not lose his status when he is temporarily assigned by his employer to duties off the vessel.

"How long a seaman's status continues after a shoreside assignment is itself a question of fact for you, ladies and gentlemen of the jury, to decide. The answer to this question depends on such factors as the duration of the assignment, its relationship to the employer's business, whether the employee was free to accept or reject it without endangering his employment status and any other factors relevant to this issue. You must make the ultimate determination as to whether or not plaintiff remained a Jones Act seaman at the time of his...