Benoit v. Fireman's Fund Ins. Co.

• Decision Date: 04 August 1978
• Docket Number: No. 5988,5988
• Citation: 361 So.2d 1332
• Parties: Sweeney BENOIT, as personal representative of William Benoit, Jr., Plaintiff-Appellee, v. FIREMAN'S FUND INSURANCE COMPANY, Stand-By Crews, Inc., and Deepwater Boats, Inc., Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 1332

361 So.2d 1332

Sweeney BENOIT, as personal representative of William Benoit, Jr., Plaintiff-Appellee, v. FIREMAN'S FUND INSURANCE COMPANY, Stand-By Crews, Inc., and Deepwater Boats, Inc., Defendants-Appellants.

No. 5988.

Court of Appeal of Louisiana, Third Circuit.

Aug. 4, 1978.

Rehearing Denied Sept. 25, 1978.

Camp, Carmouche, Palmer, Barsh & Hunter, Karl E. Boellert, Lake Charles, for defendants-appellants.

Ronald J. Bertrand, Lake Charles, for appellee.

Before DOMENGEAUX, GUIDRY, and CUTRER, JJ.

DOMENGEAUX, Judge.

This matter is before us on remand from judgment of the Supreme Court, 355 So.2d 892 (La.1978) #60,336 on the docket of that Court, rendered March 6, 1978.

Involved is recovery for the maritime wrongful death of William Benoit, Jr., on the part of his three minor children. ¹

Plaintiff-appellee, Sweeney Benoit, brings this action as personal representative of decedent. He alleges that Benoit drowned on March 8, 1973, in the Gulf of Mexico while a member of the crew of the "Carol Ann," a vessel owned by Deepwater Boats, Inc., one of the named defendants, and operated and manned by Stand-By Crews, Inc., another of the named defendants. The last named defendant, Fireman's Fund Insurance Company, is the insurer of both Deepwater Boats and Stand-By Crews. The vessel was used for stand-by purposes in connection with offshore drilling activities.

Plaintiff seeks recovery under the Jones Act, 46 U.S.C.A. Sec. 688; the Death on High Seas Act, 46 U.S.C.A. Sec. 761; and the General Maritime Law, alleging unseaworthiness and negligence. ²

The first time this case was before us, we resolved an issue involving the validity of a settlement on the part of the minor children. We found that the settlement was valid and reversed the trial judge's ruling. ³ On writ of certiorari, the Louisiana Supreme Court reversed our judgment and remanded the case back to us for a consideration of issues not reached in our previous opinion.

In a supplemental brief, filed after remand to this Court, defendants have outlined the issues to be considered at this stage. They are (1) The absence of any proof that William Benoit, Jr. drowned or otherwise perished as a result of the unseaworthiness of the vessel, or as a result of the negligence of the owner or operator of the vessel;

(2) The excessiveness of the award to the minor children;

(3) The refusal of the trial court to submit special interrogatories to the jury, and the lack of balance or precision as to the form actually submitted to the jury; and

(4) The prejudicial and improper conduct of plaintiff's counsel in front of the jury.

We will discuss these issues in order.

I. UNSEAWORTHINESS AND NEGLIGENCE

Decedent disappeared during the early morning hours of March 8, 1973, while the "Carol Ann" was tied to a Mobil Oil Company offshore platform in the Gulf of Mexico. At the time of the disappearance, the "Carol Ann" was being used as a stand-by boat in the event that it would be needed for the oil rig. The vessel was manned by only two crew members, the Captain, Albert Trobl, and decedent.

Benoit was last seen by Captain Trobl between 1:00 and 3:30 A.M. Although the two had retired to their quarters at approximately 10:00 P.M., for some reason, Captain Trobl awoke during the early morning and found Benoit in the galley smoking a cigarette. After a brief conversation, Trobl returned to his quarters. When Trobl arose at approximately 6:10 A.M., he could not find Benoit. A check of Benoit's quarters revealed that his clothing and personal belongings were still there. The entire vessel was searched. Assistance was obtained from Mobil Oil Company personnel on the rig, as well as from the United States Coast Guard. A search was conducted throughout the day; however, neither Benoit nor his body was ever found.

Defendants contend that the evidence presented in this case was insufficient to prove drowning and insufficient to prove unseaworthiness or negligence.

At the outset, we note that the scope of review of jury verdicts in maritime cases like this is the same as that of the Federal Courts. Trahan v. Gulf Crews, Inc., 260 La. 29, 255 So.2d 63 (1971). As we stated in Hocut v. Insurance Company of North America, 254 So.2d 108, 111 (La.App.3rd Cir. 1971), Writ denied, 260 La. 411, 256 So.2d 292 (1972):

". . . . In Gallick v. Baltimore and Ohio Railroad Company, 372 U.S. 108, 83 S.Ct. 659, 9 L.Ed.2d 618, the Supreme Court of the United States in quoting from Tennant v. Peoria & P.U.R. Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520 defined those limits as follows:

' "It is not the function of a court to search the record for conflicting circumstantial evidence in order to take the case away from the jury on a theory that the proof gives equal support to inconsistent and uncertain inferences. The focal point of judicial review is the reasonableness of the particular inference or conclusion drawn by the jury. It is the jury, not the court, which is the fact-finding body. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable. Washington & Georgetown R. Co. v. McDade, 135 U.S. 554, 571, 572, 10 S.Ct. 1044, 1049, 34 L.Ed. 235; Tiller v. Atlantic Coast Line R. Co., supra, 318 U.S. (54) 68, 63 S.Ct. (444) 451 (87 L.Ed. 610), 143 A.L.R. 967; Bailey v. Central Vermont Ry., 319 U.S. 350, 353, 354, 63 S.Ct. 1062, 1064, 87 L.Ed. 1444. That conclusion, whether it relates to negligence, causation or any other factual matter, cannot be ignored. Courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable." 321 U.S., at 35, 64 S.Ct. at 412.'

In Trahan v. Gulf Crews, Inc. (246 So.2d 280 (La.App.3rd Cir. 1971)), we quoted from Rogers v. Missouri Pacific Railway Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493, thusly:

'It is no answer to say the jury's verdict involved speculation or conjecture * * * Only where there is a complete absence of probative facts to support the conclusion reached does a reversible error appear * * * the appellate court's function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.' (Emphasis added) Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916."

Looking to the record in this case, we find that there is no "complete absence of probative facts" which would result in reversible error.

Although it is true that Benoit's body was never found, even after a day long search, we think that the jury could have drawn the inference that Benoit, in fact, had drowned. Caption Trobl testified at trial that the rig to which the Carol Ann was tied was 78 miles offshore. ⁴ He also stated that the depth of the water in this area was about 300 feet and that the distance between the vessel and the rig was approximately 75 feet. It was also established that the "Carol Ann" had no lifeboat and that the vessel rarely drifted close to the rig.

The Captain also said that the last time he saw Benoit, Benoit was clad only in his undershorts and that a search of Benoit's quarters revealed that no additional clothing was missing. We think that these factors give support to the inference that William Benoit, Jr. drowned.

We also find sufficient evidence to support the jury's finding of negligence or unseaworthiness. It was established at trial that Benoit had not been a seaman prior to his employment with Stand-By Crews, although he had been a fisherman. He also worked with rice farmers and cattlemen. He was required by neither the Captain nor Stand-By Crews to wear a life jacket, and he was not given any specialized training or instructions relative to safety procedures or precautions when he entered the ship's service.

It was also established that the vessel only had two crew members assigned to her and did not have a watch to hear the call of seamen who might fall overboard. In addition, the Captain had no certification to operate the vessel.

Furthermore, evidence indicated that although the ship had a railing surrounding it, the railing was only approximately three feet high in the bow and two feet high in the stern.

We think that several constructions could have been placed on these raw facts by the jury in order to come up with a theory whereby the drowning of Benoit would have resulted from negligence or unseaworthiness. For example, the jury could have concluded that the employer was negligent in not requiring Benoit, an inexperienced seaman, to wear a life jacket. ⁵ The jury could have concluded that the railing on the vessel was too low and that, had the railing been higher, Benoit might not have drowned. The jury could have found that the vessel was undermanned, and that, had a watch been posted Benoit would have been rescued and would not have perished. There, perhaps, are many other constructions which could lead to a finding of liability. It is not our function to speculate as to which theory the jury chose. Our function is to examine the record in order to ascertain whether there is some basis of probative facts to support the conclusion reached.

We think there was such a basis and, accordingly, affirm the jury's finding of liability.

II. THE EXCESSIVENESS OF THE AWARDS TO THE CHILDREN

The jury awarded Sherri Benoit $50,000.00; Scott James Benoit $37,500.00; and Donna Benoit $25,000.00 for their loss of support. No award was made by the jury for loss of society. In a motion for a new trial, defendants alleged, Inter alia, that the verdict was not supported by the evidence. In the alternative, defendants also moved for rem...