Fisher v. Danos, 80-3510

• Decision Date: 31 March 1982
• Docket Number: No. 80-3510,80-3510
• Citation: 671 F.2d 904
• Parties: Doris Jean FISHER, Plaintiff-Appellant Cross-Appellee, v. Willie DANOS, Defendant-Appellee, v. GULF OIL CORPORATION and Travelers Insurance Company, Defendants-Appellees Cross-Appellants. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 904

671 F.2d 904

Doris Jean FISHER, Plaintiff-Appellant Cross-Appellee, v. Willie DANOS, Defendant-Appellee, v. GULF OIL CORPORATION and Travelers Insurance Company,

Defendants-Appellees Cross-Appellants.

No. 80-3510

Summary Calendar.

United States Court of Appeals Fifth Circuit.

March 31, 1982.

Robert McComiskey, New Orleans, La., for plaintiff-appellant cross-appellee.

Bubrig & Scandurro, Darryl W. Bubrig, Sr., Buras, La., for Danos.

Charles Hanemann, Houma, La., for Gulf Oil and Travelers.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before BROWN, POLITZ and WILLIAMS, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

This appeal arises from Doris Jean Fisher's lawsuit against Gulf Oil Company and The Travelers Insurance Company for injuries sustained when a skiff on which Fisher was passenger struck an unlit jetty built by Gulf. The owner of the skiff, Willie Danos, was released by compromise before this suit was filed. At trial, the jury found on special interrogatories that Gulf was not negligent, that the negligence of Mr. Danos was 70 per cent, and that Doris Fisher was 30 per cent contributorily negligent. Judgment was entered on the verdict, and following denial of motion for j.n.o.v. or for new trial or both, the present appeal was brought. Gulf and Travelers have filed a cross-appeal, claiming that the compromise executed by Fisher released Gulf and Travelers as well as Danos. On the basis of Fisher's right to a non-jury trial, we reverse and remand to the District Court for reconsideration by the Judge on the basis of the present record uninfluenced by the jury verdict.

Non-Jury Trial Election ¹

Fisher contends that she was entitled to a non-jury trial because of the maritime nature of her claim. See F.R.Civ.P. 9(h); Romero v. Bethlehem Steel Corp., 515 F.2d 1249, 1252 (5th Cir. 1975) (general rule that admiralty claims are to be tried without a jury). After Danos was released, complete diversity of citizenship existed, and Gulf amended its answer to plead diversity and pray for trial by jury. In January, 1978, a pre-trial order designated the case as one to be tried by a jury. Fisher contends that she repeatedly sought to amend this order to obtain a non-jury trial, and that her signature on the first pre-trial order did not constitute a final election. Even if that order is seen as an election, it is argued that it is not irrevocable. Because seventeen months elapsed between notice to Gulf of Fisher's desire to proceed without a jury and the commencement of trial, and because Gulf understood that this action was capable of being brought within admiralty jurisdiction, she urges that no prejudice may be claimed by Gulf.

Both sides of the present dispute agree that a Rule 9(h) election, whether to proceed in admiralty without a jury or at law with a jury, is not irrevocable. Doucet v. Wheless Drilling Co., 467 F.2d 336, 339 (5th Cir. 1972). Gulf perceives that although Fisher elected in her complaint to proceed without a jury under Rule 9(h), she later impliedly revoked that election, with the consent of the court and the defendants, and chose to proceed with a jury. Gulf bases its perception upon her attorney's signature on the pre-trial order of January, 1978. Moreover, Gulf contends that Fisher acquiesced in the District Court's April, 1978, setting of the case for trial by jury. However, on October 10, 1978, at a second pre-trial conference, Fisher challenged Gulf's right to trial by jury. Because trial was scheduled for October 23, 1978, Gulf quickly moved for recognition of its right to a trial by jury on the issue of whether the compromise agreement with Danos also released Gulf and Travelers. Fisher then filed a memorandum alleging that her right to a non-jury trial, or, in the alternative, the right to revoke her choice of trial by jury, was never waived and surely persisted as a greater right than Gulf's right to a jury on the incidental demand against Danos. Gulf's motion for a jury was granted, but the October 23, 1978, trial setting was continued. Fisher filed an interlocutory appeal to this Court on the jury issue, and we disallowed the appeal as not ripe for judicial review.

The issue is further complicated by Gulf's position that it is entitled to a trial by jury because complete diversity of citizenship exists between Fisher and the defendants Gulf and Travelers. Indeed, Gulf even argues that diversity is the only basis for federal jurisdiction in this case, thus creating its absolute right to trial by jury. However, given the facts that the vessel involved in this accident was not primarily a pleasure boat, that the accident occurred on a navigable channel of the Mississippi River, and that the alleged cause of the collision was an unlit jetty obstructing the channel, we find that the case is properly characterized as one in admiralty. ² See Kelly v. Smith, 485 F.2d 520, 523-526 (5th Cir. 1973), cert. denied, 416 U.S. 969, 94 S.Ct. 1991, 40 L.Ed.2d 558 (1974). In the alternative, Gulf argues that even if it did not have a right to a trial by jury, the trial judge may properly have the case tried to an advisory jury, F.R.Civ.P. 39(c); thus if any error exists as to Fisher's right to a non-jury trial, the error is harmless. This matter deserves more attention, particularly with regard to the District Court's admiralty jurisdiction.

In Johnson v. Penrod Drilling Co., 469 F.2d 897 (5th Cir. 1972), this Court faced the situation where Rule 9(h) plaintiffs attempted to withdraw their earlier demand for trial by jury without the consent of the defendants and without a finding by the District Court that a right to trial by jury did not exist. 469 F.2d at 901-03. We held that the defendant was entitled to trial by jury because the plaintiffs did not comply with F.R.Civ.P. 39(a). Likewise, in Romero v. Bethlehem Steel Corp., 515 F.2d 1249 (5th Cir. 1975), a plaintiff was forced to a non-jury trial because of his failure to amend and withdraw his admiralty claim under Rule 9(h). 515 F.2d at 1253. The present case, however, is somewhat more confusing. Fisher did attempt to oppose Gulf's insistence on a jury trial and, given our construction that the claim was adequately identified as one under admiralty, her right to a non-jury trial remained an option even if she had earlier consented to a trial by jury.

In Harrison v. Flota Mercante Grancolombiana, S.A., 577 F.2d 968, 986 (5th Cir. 1978), we held that "by electing to proceed under 9(h) rather than by invoking diversity jurisdiction, the plaintiff may preclude the defendant from invoking the right to trial by jury which may otherwise exist." 577 F.2d at 986, citing Romero, supra. Rule 9(h) is a "device by which the pleader may claim the special benefits of admiralty procedures ... including a non-jury trial." Romero, 515 F.2d at 1252. There can be no doubt that this case was within the Court's admiralty jurisdiction. The substance of the injuries took place on navigable waters in connection with the navigation of a vessel. See Executive Jet Aviation v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972), cited in Moser v. Texas Trailer Corp., 623 F.2d 1006, 1009 (5th Cir. 1980); Sperry Rand Corp. v. Radio Corp. of America, 618 F.2d 319, 320-22 (5th Cir. 1980); Boudloche v. Conoco Oil Corp., 615 F.2d 687, 688 (5th Cir. 1980). In light of Fisher's right to a non-jury trial, we must remand this case to the District Court. ³ However, a new trial is not technically required in the present action, because the District Court shall make its decision solely on the basis of the records and testimony as submitted to the jury.

Extent of the Release

Before concluding, it is necessary to address Gulf's cross-appeal. Gulf urges that even if this Court finds errors in the trial proceedings such errors are harmless because the trial court should have dismissed Fisher's claims on the grounds of the release executed February 28, 1975. Gulf relies on the language in the compromise agreement stating that Fisher releases "Willie Danos and all other persons." At trial, Fisher by her testimony claimed to have not understood all of the terms of the...