Adams v. Kelly Drilling Co.

• Citation: 273 F.2d 887
• Decision Date: 23 March 1960
• Docket Number: No. 17862.,17862.
• Parties: Herbert ADAMS, Appellant, v. KELLY DRILLING CO., Inc., et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

273 F.2d 887 (1960)

Herbert ADAMS, Appellant, v. KELLY DRILLING CO., Inc., et al., Appellees.

No. 17862.

United States Court of Appeals Fifth Circuit.

January 15, 1960.

Rehearing Denied March 23, 1960.

Ernest A. Carrere, Jr., New Orleans, La., Kenneth Watkins, of Watkins & Talbot, Houma, La., Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, La., of counsel, for appellant.

P. A. Bienvenu, Blake West, William L. Von Hoene, New Orleans, La., H. Minor Pipes, Houma, La., George Matthews, Bienvenu & Culver, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, La., of counsel, for appellees.

Before RIVES, Chief Judge, and HUTCHESON and CAMERON, Circuit Judges.

HUTCHESON, Circuit Judge.

Herbert Adams, plaintiff, brought suit against Kelly Drilling Company, Inc., his employer, and Employers Mutual Liability Insurance Company of Wisconsin, its insurer, for recovery for personal injuries, under the Jones Act (46 U.S.C.A. § 688, p. 277, Merchant Marine Act of 1920), and by reason of unseaworthiness of the Kelly No. 3, a submersible drilling barge to which plaintiff, a roughneck in the employ of Kelly Drilling Company, was assigned as such.

He alleged that on or about December 2, 1956, while working as a member of the crew of said vessel and assisting in carrying out the overall function for which the vessel was placed in navigation, he was severely injured when a defective chain and plug, weighing in excess of twenty-five pounds, fell upon him from a height of approximately ninety feet, causing permanent injuries, which will prevent him, permanently, from returning to the type of work at which he was employed at the time of his accident.

He further alleged that his employer failed to provide a safe place for him to work, furnished an incompetent supervisory force, failed to maintain properly the drilling barge and its equipment, persisted in using a defective chain attachment to the instant plug, negligently permitted the plug to fall upon plaintiff, failed to carry out a proper inspection and maintenance program aboard said barge, furnished an unseaworthy drilling barge and failed and neglected to pay maintenance and cure, which caused his injuries to become worse and his eventual maximum recovery to be postponed indefinitely.

The original defendants filed a third party complaint against the Texas Company and its insurer. The Texas Company filed a cross-claim against Kelly Drilling Company and its insurer, and, as a protective measure, plaintiff then filed a supplemental complaint naming the Texas Company as a party defendant to guard against the possibility that the court might find that at law plaintiff was an employee of the Texas Company and the barge in question was chartered to the Texas Company.

The case was tried to a jury on a record which, taken most favorably to the verdict, established the facts summarized in the margin,¹ and, plaintiff's motion for an instructed verdict denied, there was a verdict and judgment for defendants. Plaintiff has appealed, urging that there was no sufficient basis in the evidence for the jury's finding and verdict for defendants, and that it was error (1) to refuse to direct a verdict for plaintiff, (2) to deny plaintiff's motion for judgment notwithstanding the verdict, (3) to deny plaintiff's motion for new trial; (4) to refuse to give in charge to the jury plaintiff's requested charges Nos. 2, 2(a), 3 and 4.

In support of his contentions, appellant, apparently of the opinion, notwithstanding the settled law to the contrary, that this court is charged with the duty of retrying the case, pitches his appeal on this proposition:

"We submit that the circuit courts are the instruments for reviewing the findings of juries and must reverse the said findings when they are in error."

In addition, plaintiff contends that reasonable minds could not fail, under applicable law, to conclude that he was a seaman and member of a crew of a vessel, and that the judgment must be reversed and here rendered for him.

On their part, the appellees, pointing out that it is the province of the jury to determine, whether a person is a seaman and a member of the crew of a vessel under the Jones Act and for the purpose of recovering under the warranty of seaworthiness,² argues that the jury's decision is final, if there is evidence to support it, whether or not the district or appellate court agrees with the jury's conclusion, cases note 2, supra, and that even the slightest evidence is sufficient to support a verdict. Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 507, 77 S.Ct. 443, 1 L.Ed.2d 493; Offshore Co. v. Robison, note 2, supra.

As to appellant's complaint of the failure to give in charge to the jury his requested charges 2, 2a, 3 and 4, appellees urge upon us that the charge of the court was full, fair and adequate, and if the requested charges were in themselves unobjectionable, the failure to give them was not error, or, if error, was harmless.

We agree with appellees that at least in the present state of the decisions, the issues in the case were for the jury and the evidence did not demand, indeed it did not permit, the direction of a verdict for either plaintiff or defendant. We agree with it, too, that appellant's reliance on the Robison case as a sort of general declaration or decision that, in all cases where it is alleged that plaintiff, working on a submersible drilling barge, is a seaman and member of a crew, a verdict for plaintiff is demanded, is completely misplaced. Indeed, as plainly appears from plaintiff's requested charge No. 1,³ which the judge gave the jury, it is quite plain that, though plaintiff did move for a directed verdict, he felt if he did not know, that, in the present state of the decisions, the case was for the jury and, therefore, requested the court to so charge.

As to appellant's complaint of the failure to give to the jury certain of plaintiff's requested charges, it is quite plain, we think, that when the charge as a whole is considered, failure to give them was not error. For, in the course of the fair and full charge he gave to the jury, the district judge gave them many special charges which plaintiff had requested of a nature so favorable to plaintiff that the defendant vigorously objected to their being given on the ground: that they in effect instructed the jury that the drilling barge was in fact a vessel, and that plaintiff was in fact a seaman and a member of the crew of the vessel; and thus, in effect, instructed the jury as a matter of law to find for plaintiff.

In addition, when the jury returning to the court room inquired:

"What are the three factors that would establish whether this case comes under the Jones Act?

"Is it understood that all three must be agreed to comply with the Jones Act?

"The definition of a vessel from the charges. Also definition of seaman from charges."

the district judge instructed the jury at length on the matters inquired about, and no objection was made or exception taken by the plaintiff.

To sum up appellant's case, it is quite plain that appellant's real complaint here is that, because the jury in the Robison case found for the plaintiff, and this court refused to set the verdict aside on defendant's contention that as a matter of law it should have had a verdict, the decision in the Robison case must be read as not only favorable to the plaintiff in that case but favorable to plaintiffs generally, in effect, in short, it must be read as a holding that in any case of a submersible drilling barge, a plaintiff must recover under the Jones Act.

It seems quite plain to us that this is a complete...