Gorsalitz v. Olin Mathieson Chemical Corporation, No. 27807.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: PER CURIAM
• Citation: 429 F.2d 1033
• Parties: Richard William GORSALITZ, Plaintiff-Appellee-Cross Appellant, v. OLIN MATHIESON CHEMICAL CORPORATION, Defendant-Appellant-Cross Appellee, v. GENERAL ELECTRIC CORPORATION, Third Party Defendant-Appellee, Electric Mutual Liability Insurance Company, Intervenor-Appellee.
• Docket Number: No. 27807.
• Decision Date: 18 August 1970

429 F.2d 1033 (1970)

Richard William GORSALITZ, Plaintiff-Appellee-Cross Appellant,
v.
OLIN MATHIESON CHEMICAL CORPORATION, Defendant-Appellant-Cross Appellee,
v.
GENERAL ELECTRIC CORPORATION, Third Party Defendant-Appellee,
Electric Mutual Liability Insurance Company, Intervenor-Appellee.

No. 27807.

United States Court of Appeals, Fifth Circuit.

June 17, 1970.

Rehearing Denied and Rehearing Denied August 18, 1970.

429 F.2d 1034

COPYRIGHT MATERIAL OMITTED

429 F.2d 1035

B. Jeff Crane, Jr., Houston, Tex., for Olin Mathieson Chem. Corp

John H. Holloway, Houston, Tex., for Richard W. Gorsalitz.

Sam H. Hood, Jr., Houston Tex., for G. E. Corp.

Blake Tartt and John F. Nichols, Vincent W. Rehmet, Houston, Tex., for Intervenor Electric Mut. Liability Ins. Co.

Before JOHN R. BROWN, Chief Judge, and RIVES and GEWIN, Circuit Judges.

Rehearing Denied and Rehearing En Banc Denied August 18, 1970.

RIVES, Circuit Judge:

The plaintiff, Richard W. Gorsalitz, sued the defendant, Olin Mathieson Chemical Corporation, for damages to compensate for extremely severe personal injuries sustained by the plaintiff while working on the premises of the defendant in Lake Charles, Louisiana.¹ The defendant Olin instituted a third party action for indemnity against the plaintiff's general employer, General Electric Company. The issues between the plaintiff and the defendant Olin were tried to a jury which returned a special verdict

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under Rule 49(a), Fed.R.Civ.P., answering Interrogatory No. 1, to the effect that the defendant was negligent in fifteen different respects; Interrogatory No. 2, that such negligence proximately caused the plaintiff's injuries; and Interrogatory No. 3, that plaintiff was not guilty of any act of contributory negligence

The final two interrogatories and the jury's answers were as follows:

"Interrogatory No. 5:

"Do you find that the work which the plaintiff was doing at the time of the occurrence made the basis of this suit was part of the regular trade, business or occupation of the defendant Olin Mathieson Chemical Corporation?

"You will answer `Yes\' or `No.\'

"Answer: No.

"Interrogatory No. 6:

"What amount of money if now paid in cash, do you find from a preponderance of the evidence, will fairly and reasonably compensate the plaintiff, Richard William Gorsalitz, for the injury sustained by him on November 10, 1964?

"You will answer by stating the amount in dollars and cents.

"Answer: $1,380,000.00."

The defendant Olin moved under Rule 50(b) for judgment n.o.v. and, in the alternative, for a new trial. Also, as third party plaintiff, the defendant moved for judgment for indemnity against the third party defendant, General Electric; which, in turn, moved to dismiss the third party complaint or, in the alternative, for a directed verdict in its favor.

The district court denied the defendant's motion for judgment n.o.v. It found that the verdict should be reduced from $1,380,000.00 to $690,633.00 and that, if plaintiff filed an appropriate remittitur within twenty days, the motion for new trial would be denied. Otherwise the verdict would be set aside and the motion for new trial would be granted. The plaintiff filed the remittitur under protest and reserved his right to appeal. The court entered judgment for the plaintiff Gorsalitz (and the intervenor Electric Mutual) against the defendant Olin for $690,633.00 with interest from the date of the judgment. It denied Olin's claim for indemnity and entered judgment in favor of the third party defendant, General Electric.

Olin appeals both from the judgment against it in favor of the plaintiff and the intervenor, and from the judgment denying its claim of indemnity against General Electric. Gorsalitz appeals from the final judgment and from the order conditionally requiring him to file a remittitur.

Olin's Appeal Against Gorsalitz

Olin asserts against Gorsalitz a single claim of error, namely:

"POINT OF ERROR No. 1

"The District Court erred in failing to sustain this Defendant\'s Motion for instructed verdict in that the Plaintiff\'s exclusive remedies for such personal injuries as he may have sustained were under the Workmen\'s Compensation Law of the State of Louisiana."²

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To that claimed error Gorsalitz asserts four defenses:

"COUNTER-POINT NO. 1

"The Court of Appeals does not have jurisdiction of Appellant\'s Point No. 1, and defendant has waived appellate review of the jury finding that plaintiff was not a `statutory employee\' of defendant under Louisiana law and any error in denying a directed verdict as to such issue, because defendant did not file a motion to disregard the jury finding and for judgment non obstante verdicto sic under Rule 50(b), F.R.C. P., so as to properly preserve any error in the trial court\'s denial of its motion for directed verdict.

"COUNTER-POINT NO. 2

"The Court of Appeals does not have jurisdiction of Appellant\'s Point No. 1 because defendant did not file a motion for new trial asserting any error in the jury finding that plaintiff was not a `statutory employee\' of defendant under Louisiana law or contend that the trial court erred in refusing to direct a verdict on such issue.

"COUNTER-POINT NO. 3

"A federal court should apply the law of the forum where the forum has the greater interest in applying its own compensation laws, including its third-party practice, where the application of a sister state rule would be contrary to the public policy of the forum, where the contract was entered into in Texas and the compensation act is a part of such contract, where the place of injury would apply its own compensation laws if the facts were reversed, and where Texas has the most `significant relationship\' to the transaction.

"COUNTER-POINT NO. 4

"The trial court properly denied defendant\'s motion for directed verdict since a fact issue existed as to whether plaintiff\'s status is that of an independent contractor under R.S. 23:1021(6) of the Louisiana Compensation Act, and because defendant failed to establish that the work being performed by plaintiff is regularly performed repairs `customarily\' done by its own employees within the business, trade or occupation of the defendant."

I.

We find no merit in Gorsalitz's counterpoints Nos. 1 and 2. Olin did file a motion under Rule 50(b) for judgment n.o. v. and in the alternative for a new trial, asserting as one ground that "the Court erred in submitting to the jury over the timely and proper objections of this Defendant Interrogatories Nos. 1 and 2 and the sub-parts thereof." However, Olin's objections to those two interrogatories were so phrased as not to assert a contention that plaintiff's exclusive remedies were under the Louisiana Workmen's Compensation Law. Nor did Olin's motion for judgment n.o.v. or for a new trial otherwise attack the jury's answer to Interrogatory No. 5.

We do not, however, agree with Gorsalitz's view that the cases upon which

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he relies³ hold that a defendant's failure to move for judgment n.o.v. based on its "no evidence" contention precludes appellate review of the denial of its earlier motion for directed verdict. Those cases go no further than to limit the remedy which may be granted upon such a review to ordering a new trial instead of directing entry of judgment for the defendant.⁴ Further, a failure to file a motion for new trial based on the "no evidence" contention would not preclude ordering a new trial as a remedy for erroneously denying a motion for directed verdict. So far as we are advised or have found, no court has ever so held. Such a holding would, we think, run counter to the provisions of Rule 59(d), Fed.R.Civ.P., that the district court "of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party," and, on appeal, would be contrary to the broad power of an appellate court to "order, or require such further proceedings to be had as may be just under the circumstances." 28 U.S.C. § 2106

II.

Gorsalitz's counterpoint No. 3 to the effect that Texas law, rather than Louisiana law, should determine the question of whether Gorsalitz could maintain a tort action for damages against Olin is precluded by this Court's decision of the identical underlying question of law in Tucker v. Texas Company, 1953, 203 F.2d 918. We see no purpose in adding to the discussion of the question contained in that case, or in accepting Gorsalitz's implied invitation to consider overruling that case, unless we reach the conclusion that under Louisiana law the judgment should be reversed for failure to grant Olin's motion for a directed verdict.

III.

On his counterpoint No. 4, Gorsalitz fares better. We find that the evidence presented a fact issue as to whether the work contracted for by General Electric was a part of Olin's "trade, business, or occupation" within the meaning of LSA-R.S. 23:1061, quoted in n. 2, supra, and the jury's finding on that issue in its answer to Interrogatory No. 5 must be sustained.

By its answers to interrogatories, Olin admitted that, on October 21, 1964, it contracted with General Electric to effect repairs on two large transformers then located in Olin's plant at Lake Charles, Louisiana. They were the only transformers of such size and nature located in the plant. The two transformers were installed in 1948. Olin had never through its own employees performed any major repairs upon those transformers. Olin further answered the interrogatories:

"There are no employees working for Olin Mathieson Chemical Corporation qualified to make the repairs contracted out to General Electric and this is for the reason that it is more economical to subcontract this work due to its infrequent nature than it is to own and maintain the equipment necessary and train the employees to do such work, if and when the need arises within the plant.

* * * * * *

"It is not true that any agreement had been reached as to whether or

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