Cargo Ships & Tankers, Inc. v. McDonald

• Decision Date: 18 December 1968
• Docket Number: No. 6993,6993
• Citation: Cargo Ships & Tankers, Inc. v. McDonald, 435 S.W.2d 866, 1970 A.M.C. 245 (Tex. Ct. App. 1968)
• Parties: CARGO SHIPS & TANKERS, INC., Appellant, v. Thomas McDONALD, Appellee. . Beaumont
• Court: Texas Civil Court of Appeals

Page 866

435 S.W.2d 866

1970 A.M.C. 245

CARGO SHIPS & TANKERS, INC., Appellant, v. Thomas McDONALD, Appellee.

No. 6993.

Court of Civil Appeals of Texas Beaumont.

Dec. 18, 1968.

Royston, Rayzor & Cook, Houston, for appellant.

Billy J. Sanders, Beaumont, for appellee.

ON MOTION FOR REHEARING

PARKER, Justice.

The opinion in this cause of November 27, 1968, is withdrawn. This opinion will be substituted therefor and judgment rendered as hereinafter set forth.

Thomas E. McDonald brought this suit in the 58th District Court of Jefferson County, Texas, pursuant to the provisions of the Jones Act (46 U.S.C.A. Section 688), alleging injuries sustained while sailing as a member of the crew of the SS CYCLONE owned and operated by the appellant, Cargo Ships & Tankers, Inc. It was the plaintiff's claim that he sustained his injuries as the result of an accident in the shaft alley of the vessel on December 31, 1964 when a loose or unsecured floor plate of the catwalk caused him to fall to the bilges below. The case was tried to a conclusion before a jury which returned a verdict awarding damages to this plaintiff-seaman in the amount of $50,000.00, plus maintenance to the date of trial in the amount of $4,264.00 or a total judgment of $54,264.00. Following the entry of the judgment, appellant, Cargo Ships & Tankers, Inc., duly perfected this appeal. In this opinion, Thomas McDonald will be called appellee or plaintiff, and Cargo Ships & Tankers will be called defendant or appellant.

Appellant's first three points of error are:

1.

The Trial Court erred in overruling Appellant's Motion for Directed Verdict following the close of the Appellee's evidence inasmuch as Appellee failed to sustain his burden of proof and brought forth no evidence of probative force to prove that he sustained an accident on the date and in the manner alleged with resulting injury and damages.

2.

The Trial Court erred in overruling Appellant's Motion for Directed Verdict following the close of all of the evidence, inasmuch as Appellee failed to sustain his burden of proof and to prove by adducing evidence of probative force that he sustained an accident on the date and in the manner alleged with a resulting injury and damages.

3.

The Trial Court erred in overruling Appellant's Motion For Judgment Non Obstante Veredicto following the verdict of the jury in view of the complete absence of evidence or legally sufficient evidence to support a finding that he sustained an accident in the shaft alley of the SS CYCLONE on December 31, 1964, or that the alleged resulting injuries and damages stem from an accident on board said vessel; that the Appellee wholly failed to sustain his burden of proof and to prove his case by means of evidence of probative force in accordance with the applicable law.

Appellee contends that appellant's Points of Error Nos. 1, 2, and 3 are not subject to review by this court because appellant's motion for directed verdict following the close of appellee's evidence, appellant's motion for directed verdict following the close of all of the evidence and appellant's motion for judgment non obstante veredicto were not presented to or acted upon by the trial court. Appellee, in support of his contentions as to waiver of these three motions by appellant, cites Ellis Drilling Corporation v. McGuire, Tex.Civ.App., 321 S.W.2d 911, ref., n.r.e.; Musick v. Muecke, Tex.Civ.App., 243 S.W.2d 594 (writ dismissed); Choate v. American Motorist Ins. Co., Tex.Civ.App., 323 S.W.2d 188 (no writ hist.).

Appellant's motion for instructed verdict at the close of the plaintiff's evidence bears the file mark of October 16, 1967. However, in open court, the following took place.

BY MR. BUE:

I want to be sure, Your Honor, the plaintiff has rested?

BY MR. WALDMAN:

Yes, the plaintiff rests.

BY MR. BUE:

Then, Your Honor, we'd like to make a motion.

BY THE COURT:

Well, consider it filed as of now. Let the record show that as of this time, Mr. Bue's motions are considered filed.

(The Court Reporter recorded the time as 2:00 P.M.)

Its motion for instructed verdict at the close of all the evidence was filed October 16, 1967. Its motion for judgment non obstante veredicto was filed October 16, 1967. Appellant also filed a motion to defer ruling on prejudgment motions pending transcribing of relevant portions of the record at the trial on October 17, 1967. In this latter motion, it is recited that the motions for directed verdict and the motion for judgment non obstante veredicto had been filed. On October 23, 1967, plaintiff below, appellee here, filed its replication to defendant's motion for instructed verdict, its replication to defendant's motion for instructed verdict made at close of evidence, a reply to defendant's motion for judgment non obstante veredicto, and a reply to defendant's motion to defer ruling on prejudgment motions pending transcribing of relevant portions of record at the trial. In Plaintiff's reply to defendant's motion for new trial, he stated 'that this Honorable Court did not err in overruling the defendant's Motion for Directed Verdict following the close of plaintiff's evidence,' 'that this Honorable Court did not err in overruling Defendant's Motion for Directed Verdict after the close of all the evidence,' and also 'that this Honorable Court did not err in overruling defendant's Motion for Judgment Non Obstante Verdicto (sic) following the verdict of the jury.' The appellant has complied with Rules 268, 300, and 301, as it affirmatively appears that the various motions of the defendant below were filed with notice given to adverse counsel and each were presented to and overruled by the trial court according to the admissions of plaintiff below, appellee here. The judgment was announced, rendered, and entered on October 31, 1967. Appellant's Points of Error Nos. 1 through 3 will be considered.

Point of Error No. 4 complains that the verdict of the jury is not supported by any evidence as itemized in Paragraph IV of appellant's motion for new trial. As part of Point of Error No. 4, there is an alternative contention that there is insufficient evidence as so itemized. Appellant's Point of Error No. 4 is:

4.

The verdict of the jury is objected to as not supported by any evidence and indeed is contrary to the overwhelming weight and preponderance of the legal and credible evidence presented at the trial so to be clearly wrong and unjust, all as itemized in Paragraph IV of Appellant's Motion For New Trial.

This embraces eleven different possible errors. We are considering the errors briefed by appellant only.

Considering only the evidence most favorable to the jury findings, the no-evidence points are overruled. Considering the entire record, including evidence not detailed herein, the insufficient-evidence points are overruled.

The plaintiff's original petition alleged that:

On or about December 30, 1964, while the SS CYCLONE was on a foreign voyage, plaintiff, who was employed by the defendant as a seaman and member of the crew of such vessel, was walking in the shaft alley of the vessel going to take soundings when he stepped on a loose or unsecured floor plate, causing him to fall to the bilges below, and suffer serious personal injuries.

The key special issues relevant to the accident submitted to the jury are as follows:

Special Issue No. 1

Do you find from a preponderance of the evidence that plaintiff, Thomas E. McDonald, sustained an injury on December 31, 1964, while working aboard the SS CYCLONE?

Special Issue No. 2

Do you find from a preponderance of the evidence that plaintiff, Thomas E. McDonald, sustained such personal injury, if you have so found, when he stepped on an unsecured floor plate, if any, in the shaft alley of such vessel?

Special Issue No. 9

Do you find from a preponderance of the evidence that the plaintiff, Thomas E. McDonald, fell in the shaft alley on the morning of December 31, 1964?

To each of the above special issues, the jury answered 'We do.' Appellant did not object to these issues as submitted to the jury.

Appellee testified that his accident happened while he was walking down the shaft alley of the vessel for the purpose of taking some soundings when a steel floor plate gave way, when, in his own language, the following happened:

Q. Tell the jury in your own words what happened to you?

A. Well, I was going down there to take this sounding and the first thing I knew I was sitting on a bench. * * *

Q. All right, what was the first notice that you had that something was wrong?

A. I was getting dizzy and started to pass out.

Q. All right, tell us, as best you can recall, what setup was there, what were those plates like--tell us all about them?

A. Well, they are about four or five feet long and about a foot wide. They have little diamond ridges on them that are supposed to keep you from slipping when you walk on them. And, I had those marks on my legs when I started to remembering a little bit, they were all over my one leg. It left hose spots, and I had a bump on my head.

Q. Did you have any bruise or anything on your head?

A. I had a knot on my head here, right on the right side.

Q. On the right side?

A. Yes, sir.

The plates were supposed to be bolted or screwed down. Prior to the accident, plaintiff had 'requested that this floor plate be repaired by the chief engineer and he refused to do it.' This plate had holes in it so it could be bolted securely. The plaintiff said his clothing was all torn, dirty, and he had bruises on his knee and repeated that there was an imprint of this plate all over his leg.

McDonald testified that the lighting in the shaft alley was inadequate. Also:

Q. Well, did you see the floor plates that you are contending fell through before you stepped on it?

A. Yes, sir.

Q. Did it appear to be all right?

A. It appeared to be all right to me, as far as I could see.

Q. But yet you know that you fell through that floor plate?

A. Yes, sir, I know I fell...