Downen v. Texas Gulf Shrimp Co., 13-91-593-CV

• Decision Date: 07 January 1993
• Docket Number: No. 13-91-593-CV,13-91-593-CV
• Citation: 846 S.W.2d 506
• Parties: John DOWNEN, Appellant, v. TEXAS GULF SHRIMP COMPANY and the M/V "ARSCO 8", Appellees.
• Court: Texas Court of Appeals

Page 506

846 S.W.2d 506

John DOWNEN, Appellant, v. TEXAS GULF SHRIMP COMPANY and the M/V "ARSCO 8", Appellees.

No. 13-91-593-CV.

Court of Appeals of Texas Corpus Christi.

Jan. 7, 1993.

Rehearing Overruled Feb. 11, 1993.

Richard L. Eddington, Corpus Christi, for appellant.

G. Don Schauer, Pipiton, Schauer & Simank, Corpus Christi, for appellees.

Before SEERDEN, KENNEDY, and FEDERICO G. HINOJOSA, Jr., JJ.

OPINION

SEERDEN, Justice.

This is a case for personal injuries brought by John Downen, appellant, against Texas Gulf Shrimp Company and the M/V ARSCO 8, appellees. Downen alleged, pursuant to the Jones Act and general maritime law, that appellees were negligent and, alternatively, that the shrimping vessel, ARSCO 8, was unseaworthy. The jury failed to find appellees negligent and failed to find that the vessel was unseaworthy. The trial court entered a take-nothing judgment based upon the jury's findings. Downen raises five points of error for our review complaining about the sufficiency of the evidence to sustain the judgment and that the trial court improperly admitted evidence which probably resulted in an improper judgment. We affirm the trial court's judgment.

Downen was employed as a seaman aboard Texas Gulf Shrimp's vessel the ARSCO 8. The vessel ran aground at night in a heavy fog as it was making its way back to port. After the vessel ran aground, Downen allegedly was injured when a wave came over the side of the vessel and threw him against some railing as he was attempting to bring in the outriggers.

Downen's contention on appeal is that it was impossible for the ARSCO 8 to run aground in the absence of both negligence and unseaworthiness. Downen asserts that either negligence or unseaworthiness caused the ship to run aground, an event without which he would not have sustained injuries. By his first three points of error, Downen challenges the legal and factual sufficiency of the evidence supporting the jury's verdict. By point one, Downen contends that no evidence exists or, alternatively, that the evidence is factually insufficient to support the jury's finding that negligence was not a producing cause of his damages. By point two, Downen contends that there is no evidence or, alternatively, that the evidence is factually insufficient to support the jury's finding that the vessel was not unseaworthy.

Downen begins his argument addressing the sufficiency of the evidence by directing our attention to Bunge Corp. v. M/V Furness Bridge, in which the court noted that it is well established that there is a presumption of fault against a moving vessel that strikes a stationary object, such as a dock or navigational aid. Bunge Corp. v. M/V Furness Bridge, 558 F.2d 790, 794 (5th Cir.1977). Texas Gulf Shrimp responds that the application of such presumption is inapplicable in this case because Downen failed to assert the presumption before the trial court. Texas Gulf Shrimp contends that Downen failed to object to either the instructions given the jury addressing the burden of proof or the jury questions addressing liability, and thus, he cannot complain about the lack of a presumption on appeal.

We note Downen's rebuttal during oral argument before us. During that portion of his argument, he 1) conceded that the jury questions were properly asked, but that he probably should have asked for an instruction about the presumption, 2) asserted that the burden of proof on the case was properly his, and 3) explained that he was not asserting by his appeal that the trial court erred in not giving him an instruction about a presumption.

In reviewing the record, we agree with Texas Gulf Shrimp that Downen did not object to either the instructions given the jury addressing the burden of proof or the court's questions to the jury addressing liability. When a party does not submit to the trial court requested definitions and instructions in substantially correct form, the party waives error. National Fire Ins. Co. v. Valero Energy Corp., 777 S.W.2d 501, 507-08 (Tex.App.--Corpus Christi 1989, writ denied); Tex.R.Civ.P. 274. Sometimes a request is not sufficient and may not even be appropriate; instead counsel must object. State Dept. of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 240-41 (Tex.1992) (on motion for rehearing). The objection must be specific enough to call the court's attention to the asserted error in the charge. Id.

At oral argument, Downen explained that his complaint is that there is no evidence or, alternatively, that the evidence is factually insufficient to support both findings by the jury; that a vessel's running aground had to be caused by either negligence or the vessel's unseaworthiness. Thus, we proceed to address Downen's sufficiency challenges.

When we review a point of error complaining that a jury finding is against the great weight and preponderance of the evidence, we examine the record to determine if there is some evidence to support the finding and, if so, then determine whether the finding was either so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust or that the great preponderance of the evidence supports its nonexistence. Reviea v. Marine Drilling Co., 800 S.W.2d 252, 254 (Tex.App.--Corpus Christi 1990, writ denied) (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex.1985); Traylor v. Goulding, 497 S.W.2d 944, 945 (Tex.1973)). Since only the trier of fact determines the credibility of witnesses and the weight, if any, to give their testimony, and since only the trier of fact resolves conflicts in the evidence, we may not disregard a finding, make a contrary finding, nor substitute our opinion for that of the trier of fact merely because we might have reached a different determination based upon the same evidence. See Lofton v. Texas Brine Corp., 777 S.W.2d 384, 387 (Tex.1989). This standard of review not only applies to a jury's affirmative finding but also to a jury's failure to find a fact. Reviea, 800 S.W.2d at 254 (citing Ames v. Ames, 776 S.W.2d 154, 158 (Tex.1989), cert. denied, 494 U.S. 1080, 110 S.Ct. 1809, 108 L.Ed.2d 939 (1990); Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 651 (Tex.1988)). Thus, we may not reverse a jury's failure to find a fact simply because we conclude that the evidence would preponderate toward an affirmative jury finding. Reviea, 800 S.W.2d at 254 (citing Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex.1988)). We may reverse a jury's negative answer to a question only if the great weight of the evidence would dictate an affirmative finding. Id.

Under the Jones Act, a seaman may bring a negligence action against his employer. See 46 U.S.C.App. 688 (1982); Reviea, 800 S.W.2d at 254. Recovery is allowed once the seaman establishes that he has been injured as the result of his employer's negligence. Id. The Jones Act places a high standard of care upon the employer; thus, the seaman has only to prove the employer's slight negligence. Id. Though the jury in the case before us was instructed about the Jones Act and the elements Downen was required to prove, "negligence" was defined in the court's charge as the failure to use reasonable care. The instruction continued by defining "reasonable care" as that degree of care which a reasonably careful person would use under like circumstances. Therefore, the Jones Act's high standard of care, requiring a showing of the employer's failure to exercise great care, was not submitted to the jury. See Id. at 254, n. 3.

Downen, on appeal, is complaining about the jury's failure to find slight negligence on the part of Gulf Shrimp. No objection was raised in this regard before the trial court, and thus, on appeal, Downen has waived his right to recover for any slight negligence. See Tex.R.App.P. 52(a); Tex.R.Civ.P. 274, 279.

A vessel owner must provide seamen with a "seaworthy" vessel upon which to work. Reviea, 800 S.W.2d at 255. Seaworthiness within the context of personal injury litigation refers to a vessel owner's nondelegable duty to provide a ship which is reasonably fit for its intended use. Id. If an owner does not provide a seaworthy vessel, then no amount of due care or prudence excuses him, whether he knew or could have known of the deficiency. Negligence is not required for a seaman to recover on an unseaworthiness claim because the claim is not based upon fault. Id. The jury was given the standard maritime instruction on "unseaworthiness." ¹ There were no objections raised nor were there any requests for additional instructions.

In the case before us, Downen alleged that the Captain acted negligently, and that if the equipment had been working properly and monitored properly by the Captain, the vessel should never have run aground. The jury was asked by broadly formed question two, "do you find that the Defendant, Texas Gulf Shrimp Co., was negligent on the occasion in question, which negligence was a legal cause of Plaintiff's injuries, if any." The jury answered "no." Additionally, the jury was asked by broadly formed question three, "do you find that the ARSCO 8 was unseaworthy on the occasion in question, which unseaworthiness was a proximate cause of the Plaintiff's injuries, if any." The jury answered "no."

The evidence at trial showed that the ARSCO 8 lost its anchor, the weather was extremely foggy, and Captain Buchanan decided to return to port. Richard Ellis, the owner of Gulf Shrimp, was asked if, in his opinion, it would be negligent for someone to run a vessel in the fog. He answered that when the anchor line was cut and the boat was adrift, that the Captain would have no option but to return the vessel to port. Captain Buchanan was responsible for the decisions on the vessel while at sea, and it was his decision to attempt to bring the vessel back to port in the fog. Ellis explained that while in the fog, the vessel should be run as slowly as...