Baron Tube Co. v. Transport Insurance Co.

• Decision Date: 03 August 1966
• Docket Number: No. 22680.,22680.
• Citation: 365 F.2d 858
• Parties: BARON TUBE COMPANY, the partnership of Hyman Baron and Jay Baron and Hyman Baron, Individually, Appellants, v. The TRANSPORT INSURANCE COMPANY et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

365 F.2d 858 (1966)

BARON TUBE COMPANY, the partnership of Hyman Baron and Jay Baron and Hyman Baron, Individually, Appellants, v. The TRANSPORT INSURANCE COMPANY et al., Appellees.

No. 22680.

United States Court of Appeals Fifth Circuit.

August 3, 1966.

Burt DeRieux, Greene, Neely, Buckley & DeRieux, James A. Eichelberger, Atlanta, Ga., for appellants.

James L. Norton, Tom Alexander, Houston, Tex., Jonathan Day, of Butler, Binion, Rice, Cook & Knapp, Houston, Tex., Tom Rice of Nall, Miller, Cadenhead & Dennis, Atlanta, Ga., of counsel, for appellees.

Before TUTTLE, Chief Judge, BROWN, WISDOM, GEWIN, BELL, THORNBERRY, and COLEMAN, Circuit Judges, En Banc.

GRIFFIN B. BELL, Circuit Judge.

This appeal arises out of a third party negligence action. A jury verdict and judgment thereon was rendered for plaintiffs-appellees in the sum of Seventy-five Thousand Dollars. Appellants moved for judgment notwithstanding the verdict, and in the alternative for a new trial. This appeal is from the order overruling these motions. We affirm.

Plaintiff James W. Lockmiller, a resident of the State of Texas, was a truck driver employed by Bell Transport Company. Defendant Baron Tube Company is a partnership with its office and principal place of business in Atlanta, Georgia. On the evening of January 17, 1959, Mr. Lockmiller was dispatched to Baron Tube Company's pipe yard in Houston, Texas, to pick up a load of "hot pipe" for immediate delivery to an oil well site in Louisiana. He reached the yard at ten o'clock p. m. To compensate for the lack of overhead lighting and the absence of flood lights on the gin pole truck, a makeshift arrangement of lights from vehicles was devised to illuminate the working area. Shortly after the loading operation commenced, the gin pole operator in charge of lifting the pipe, an employee of Houston Hauling Company, shut down his rig because one of Baron's employees who was helping with the loading appeared to be intoxicated. Mr. Lockmiller took this man's place as the forward "hooker." In the course of the subsequent loading operation, a pipe came loose and Mr. Lockmiller, attempting to avoid the pipe by stepping backward, tripped and fell over a four-by-four timber. He was struck on the leg by a twenty eight foot length of seven inch steel pipe, thereby sustaining the injuries which form the subject matter of the claim for damages.

On December 11, 1962, judgment was entered for Lockmiller on his Texas workmen's compensation claim against Transport Insurance Company, a Texas corporation and insurance carrier for Bell Transport. On March 19, 1964, Lockmiller and Transport Insurance Company filed this third party negligence action against Baron Tube Company and Hyman Baron individually, seeking damages for personal injuries, and reimbursement of the workmen's compensation benefits paid.

I.

Appellants contend that as a matter of law the claim was barred by the statute of limitations, and that the trial court was in error in not so ruling. In the alternative they contend that the statute of limitations issue involved mixed questions of law and fact, and that it was error not to submit this question to the jury.

This is a diversity case. The statute of limitations is substantive for purposes of Erie Railroad Company v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. See Guaranty Trust Company of New York v. York, 1945, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079. Federal courts must look to the substantive law of the state in which they are sitting and this includes the state choice of law rules. Klaxon Company v. Stentor Electric Manufacturing Company, Inc., 1941, 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477. Thus, in the instant case, to determine whether the Georgia or Texas statute of limitations applies, we must look to the Georgia choice of law rule. Under Georgia law and the circumstances of this case, the lex fori governs with respect to the statute of limitations. O'Shields v. Georgia Pacific Railway Company, 1889, 83 Ga. 621, 10 S.E. 268, 6 L.R.A. 152; Blue v. Maico, N.D. Ga., 1963, 217 F.Supp. 747. The applicable Georgia statute of limitations is two years and the period begins running when the cause of action accrues. Ga. Code Ann. § 3-1004. To determine when the cause of action accrued we must look to Texas law. Western and Atlantic Railroad Company v. Strong, 1874, 52 Ga. 461; Slaton v. Hall, 1929, 168 Ga. 710, 715, 148 S.E. 741, 743, 73 A.L.R. 891. Under Texas law the cause of action accrued when judgment was entered on Lockmiller's Texas workmen's compensation claim, December 11, 1962. Buss v. Robison, 1952, Tex.Civ.App., 255 S.W.2d 339, Writ ref'd n. r. e. The present suit was instituted on March 19, 1964, within the two year Georgia statute of limitations, and hence is not barred.

Nor can we agree with the contention that the statute of limitations issue involved mixed questions of law and fact which should have been submitted to the jury. Appellants have not demonstrated any factual determination which was left open for the jury. The dates involved were undisputed. The only question concerned the impact of these facts under Texas law. This was a question of law, and the court was correct in not submitting the issue to the jury.

II.

Appellants further contend that the action was barred as a matter of law by the contributory negligence of Lockmiller under the "volenti" and "no duty" doctrines of Texas case law. However, the trial court must view the evidence and all legitimate inferences therefrom in the light most favorable to the party against whom a motion for directed verdict or for judgment notwithstanding the verdict is made, and such motion must be denied if there is any substantial evidence which would support a verdict. Turner v. Atlantic Coast Line Railroad Company, 5 Cir., 1961, 292 F.2d 586; Hogan v. United States, 5 Cir., 1963, 325 F.2d 276; Palisi v. Louisville & Nashville Railroad Company, Inc., 5 Cir., 1965, 342 F.2d 799; 2B Barron and Holtzoff (Wright Ed.), Federal Practice and Procedure, § 1075 and 5 Moore's Federal Practice, §§ 50.10, 50.12, 50.1350.15 (2d ed.). In light of the facts of record and the Texas authorities, Halepeska v. Callihan Interests, Inc., 1963, Tex., 371 S.W.2d 368; Triangle Motors of Dallas v. Richmond, 1953, 152 Tex. 354, 258 S.W.2d 60, there is no merit in this contention.

III.

We can dispose of three additional assignments of error without extended discussion. We do not agree that the recharge to the jury stressed the contentions of the plaintiffs while excluding those of the defendants and thus deprived appellants of a fair and impartial trial. The recharge was fair and correct.

Appellants complain of the admission into evidence of certain photographs. The fact of the matter is that these photographs, admitted for the limited purpose as they were of showing the location of the pipe racks and the manner in which the pipes rested on the racks, were admissible under any conceivable standard.

They also urge that their counsel had the right to read law to the court in the presence of the jury during his final argument. They assert error in the refusal of the court to permit such to be done, and also in stating, in the presence of the jury, that his effort to make such an argument was improper. The control and conduct of the trial is vested in the discretion of the trial court, Maryland Casualty Company v. Reid, 5 Cir., 1935, 76 F.2d 30, and the action of the court here was well within that discretion. Cf. United States v. Harry Barfield Company, 5 Cir., 1966, 359 F.2d 120.

IV.

The final assignment of error stems from the action of the court in allowing counsel for plaintiffs to base his argument for damages for pain and suffering on a so-called "unit of time" formula. It is the position of appellants that our decision of Johnson v. Colglazier, 5 Cir., 1965, 348 F.2d 420, requires out of hand reversal. They argue that the mere use of such an argument requires summary reversal. They read Johnson v. Colglazier as divesting any discretion the trial court might otherwise have, in any and all circumstances, to permit an argument of this kind. However, such a narrow and rigid interpretation of Johnson v. Colglazier has already been rejected to the extent that reversal is not required where there was no objection to the argument, and a substantial remittitur was ordered. See Country Mutual Insurance Co. v. Eastman, 5 Cir., 1966, 356 F.2d 880. Moreover, this argument ignores a significant distinction between Johnson v. Colglazier and this case based on the presence or absence of a cautionary instruction relative to the argument. There was no such instruction in Johnson v. Colglazier. Here the instruction was full and complete. The court stated in its charge that the argument, and the charts which were a part of the argument, was simply counsel's method of presenting his contention as to how much should be awarded for pain and suffering. The jury was told that this was not evidence in the case, and that they should not be prejudiced by anything that might have transpired outside the actual evidence in the case.

Our principal difficulty in this case comes from the sweep of the opinion in Johnson v. Colglazier. It reaches much beyond its facts and it may well be argued that the court did sound the death knell for the unit of time argument regardless of the circumstances. In language which may hardly be described as narrow or limited, the court concluded:

"We are of the opinion that, while generous in amount, considering the evidence as a whole, the amount of the verdict is not so excessive per se as to require reversal. We are, however, of the clear opinion that the plaintiffs\' argument as a whole transgressed permissible bounds, that the court\'s silence and non-action in not preventing and rebuking the argument was reversible error, and that because of that conduct the judgment must be reversed because excessive, as induced

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