Delta Engineering Corporation v. Scott

• Decision Date: 15 August 1963
• Docket Number: No. 19861.,19861.
• Citation: 322 F.2d 11
• Parties: DELTA ENGINEERING CORPORATION and the Travelers Insurance Company, Appellants, v. Joseph Ruby SCOTT et al., Appellees. COLUMBIAN ROPE COMPANY, Appellant, v. Joseph Ruby SCOTT, Appellee. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, Appellant, v. Joseph Ruby SCOTT, Appellee. Joseph Ruby SCOTT, Appellant, v. DELTA ENGINEERING CORPORATION et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

322 F.2d 11 (1963)

DELTA ENGINEERING CORPORATION and the Travelers Insurance Company, Appellants, v. Joseph Ruby SCOTT et al., Appellees.

COLUMBIAN ROPE COMPANY, Appellant, v. Joseph Ruby SCOTT, Appellee.

INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, Appellant, v. Joseph Ruby SCOTT, Appellee.

Joseph Ruby SCOTT, Appellant, v. DELTA ENGINEERING CORPORATION et al., Appellees.

No. 19861.

United States Court of Appeals Fifth Circuit.

August 15, 1963.

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Robert B. Acomb, Jr., George Denegre, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, La., for Delta Engineering Corp. and Travelers Ins. Co.

A. R. Christovich, Jr., Christovich & Kearney, New Orleans, La., for Columbia Rope Co.

Charles Kohlmeyer, Jr., Thomas W. Thorne, Jr., Lemle & Kelleher, New Orleans, La., for Indemnity Ins. Co.

Donald V. Organ & Louise S. Korns, New Orleans, La., for Joseph Ruby Scott.

Christopher Tompkins, New Orleans, La., Deutsch, Kerrigan & Stiles, New Orleans, La., of counsel, for National Supply Co.

Before CAMERON and BROWN, Circuit Judges, and WHITEHURST, District Judge.

JOHN R. BROWN, Circuit Judge.

In this five-sided Donnybrook tried as a jury civil action thanks in part to the Louisiana Direct Action Statute which gave the Court jurisdiction over some Louisiana citizens to determine rights under a mixture of state and federal maritime principles, none are happy and all appeal. This comes about from the injury received by Plaintiff Scott when his workboat fell on him as a result of a rope sling parting during the time the vessel was suspended by a dragline crane operated by Delta. This complexity, however, is more apparent than real and not more than a single new significant legal question is presented. As for the balance, it all washed out with the jury verdict so we once again serve the therapeutic function of giving heed to arguments which had to prevail elsewhere, but did not.¹

Scott was the owner of the Lugger BARBARA MARIE, about 45 feet long. She was under an oral, informal, daily time charter to Placid. Under the charter, Placid, the charterer, was to supply fuel, lube oil and all rope needed for lines and the like. Just the day before the accident, Placid furnished a coil of brand new 1¼ inch manila rope manufactured by Columbian and sold by its distributor National Supply. And thereby hangs this tale if not the BARBARA MARIE.

Scott reported to Placid that repairs were required. To avoid a two-day lay up which would take the needed vessel out of charterer's service, Placid requested Delta to hoist the vessel's stern by use of Delta's dragline crane mounted on a barge. Delta was engaged in pipeline construction work for Placid in this amphibious oilfield. For this service, it was to be, and was, paid its regular contract rate. A bridle, made by doubling up a length of the new Columbian rope, was passed under the lugger's stern and made fast by a shackle to the wire rope fall of the crane. With the lugger's bow still afloat, the stern was hoisted so that Scott could work under the vessel from a floating pontoon. After being suspended in this way about 45 minutes, the vessel fell on Scott when the new rope parted about a foot below the knot at the apex of the bridle.

The jury under a submission on a general charge, but with special interrogatories (F.R.Civ.P. 49) and without which all of the legal questions would have been perpetually sealed behind the impenetrable mystery of a general verdict,² reached these decisive conclusions. It found Delta negligent, the rope defective from a defect which existed when the rope left the custody of Columbian who either knew or should have known of the defect. It also found that the defect in the rope existed while it was in the custody of National and of Placid, but that neither National nor Placid knew or should have known of the defect. The Plaintiff Scott was found to have been 10% negligent and total damages were fixed at $108,800. There were, of course, appropriate findings of proximate cause.

The Judgment.

After reducing the award of damages by 10%, the Court entered judgment for Scott against Delta, Columbian, and Placid.³ It allowed recovery over by Placid against Delta and simultaneously denied Delta's claim over against Placid and Columbian.⁴ Subsequently, on motions for new trial it granted a new trial unless the Plaintiff Scott filed a remittitur reducing recovery to $75,000.

Plaintiff Scott's Appeal.

Scott seeks to set aside the remittitur and reinstate the judgment to $98,200. All defendants within the risk of judgment oppose this on two grounds. The first is that voluntary acquiescence in the remittitur forecloses further review. The second seeks to justify the Court's action on the intrinsic merits. We need not pass expressly on the first. We would assume, without deciding, that until such time as a plaintiff has actually obtained the fruits of a judgment (which is not the case thus far here), he is free to challenge the legal correctness of the Court-enforced remittitur. It would be a strange rule that would keep a plaintiff from challenging the legal correctness of any action having such portentous consequences. But allowing the plaintiff to make the challenge, the burden is a heavy one and the scope of appellate review correspondingly narrow. Great latitude is allowed to a United States District Judge to grant a new trial where in the discretion of the Judge it is needed to prevent an injustice. A clear abuse of that discretion or some extraordinary legal situation must be demonstrated to obtain relief from such action.⁵

Assuming that the Plaintiff Scott is free to assert the attack, we are clear that on the intrinsic merits no abuse of discretion has been shown. This able, experienced trial Judge, on top of the case at all times, was thoroughly aware of the detailed evidence bearing upon the nature and extent of the injuries, the monetary damages sustained, and related factors. At the same time, however, we also reject the attack made by Delta. Reducing the amount of the award to this sum was not the equivalent of a determination by the Court that the verdict was the product of passion and prejudice. What, and all that it was, was an implied finding that on the evidence, the jury had awarded too much. The figure fixed was the outside figure which the Court thought could be approved.

Delta's Appeal.

In its brief Delta levels a charge of sixteen separate errors, only a few of which warrant discussion. The most basic one is that the evidence was insufficient as a matter of law. We think the trial Judge was correct in submitting this case to the jury, and Delta is bound by the jury findings.

Delta's effort to picture itself as one extending gratuitous help to Scott as a man in need hardly bears analysis. Delta was requested by Placid to do the work. Placid expected to, and did, pay Delta's charges for the work. It was therefore, as a minimum, required to exercise reasonable care in the execution of this contractual undertaking.

There was ample evidence which the jury could, and presumably did, credit on which to base a finding of negligence. And this evidence did not confine negligence to the defective rope, as such. One major factual controversy between Scott and Delta's superintendent was whether Scott requested and Delta declined to put the stern of the vessel on the bank in order to eliminate the very hazard of the vessel falling. And very much in evidence was the underlying question whether this rope sling should have been used, especially in view of accepted safety factors when applied to maximum breaking strength.

This came close, of course, to Scott's own negligence in acquiescing in this method and working under these hazards. But there again there was evidence that permitted the jury to find that because of Delta's superior knowledge in problems of rigging, Scott had a right to rely on the experienced judgment of Delta's representative. And, of course, Delta's efforts to transmute the 10% contributory negligence finding into a complete bar under Louisiana principles is at least ten years too late as our opinion in Southport Transit Co. v. Avondale Marine Ways, 5 Cir., 1956, 234 F.2d 947, 949, 1956 AMC 1498, recognized, and as to which all doubt has now been dispelled by Kermarec v. Compagnie Generale Transatlantique, 1959, 358 U.S. 625, 629, 79 S.Ct. 406, 3 L.Ed.2d 550, 1959 AMC 597.

As to the other specifications, little need be said. Considering the remittitur discussed above, Delta has not demonstrated, as claimed, that the jury verdict was motivated by passion and prejudice. With the medical testimony, Scott's own complaint of pain and inability to work, expenses incurred and employment opportunities diminished, there was adequate basis for the award. Considering the charge as a whole, we do not think it subject to any of the exceptions now urged by Delta. So far as procedural errors in the handling of evidence, opening statement of counsel, argument of counsel, and the like, if any of these were an error, it was slight and of no significant consequence.

This leaves only the contention that the Court erred in allowing Placid to recover indemnity over against Delta and, conversely, in not allowing Delta to recover from Placid. So far as Delta's right of recovery against Columbian is concerned, we think the Judge's indicated basis amply sustained denial of this claim over. This cross claim was unavailing, he said, because "Delta's liability inheres, not in the defective rope, but in its own separate and distinct acts of negligence which were found by the jury to be a proximate cause of the accident." (See note 4, supra) Columbian was, at most, then a joint tort-feasor from whom contribution, not indemnity, might be available. See Travelers Ins. Co. v. Busy Electric Co., 5 Cir., 1961, 294 F.2d 139; cf. Halliburton Co. v. Norton Drilling Co., 5 Cir., 1962, 302 F.2d...