Higgins, Incorporated v. Hale, 16829.

• Decision Date: 09 January 1958
• Docket Number: No. 16829.,16829.
• Parties: HIGGINS, Incorporated, Appellant, v. Johnson L. HALE et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

1958 AMC 646, 251 F.2d 91 (1958)

HIGGINS, Incorporated, Appellant, v. Johnson L. HALE et al., Appellees.

No. 16829.

United States Court of Appeals Fifth Circuit.

January 9, 1958.

John P. Hammond and Montgomery, Barnett, Brown & Read, New Orleans, La., for appellant, C. Randall Jones, Jr., Pass Christian, Miss., of counsel.

No appearance entered for appellees.

Before RIVES, BROWN and WISDOM, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

A proceeding which, with its 415 pages of printed record after nearly a week of trial below, has long since exceeded in costs and judicial energy expended the $700 difference between what was sought and obtained, comes to us with the irrepressible nostalgic hope of all proctors that we revive, today at least, the ancient pre-McAllister function of a trial de novo. It really comes to this for the burden of meeting the clearly erroneous test, McAllister v. United States, 348 U. S. 19, 75 S.Ct. 6, 99 L.Ed. 20, 1954 A.M. C. 1999, in a fact controversy of this kind, is difficult, indeed. And this is rightly so for a case of this type in which the act of adjudication is the result of the impact of the continuous barrage of conflicting facts and running advocacy on the mind of the trier. Bisso v. Waterways Transportation Co., 5 Cir., 235 F.2d 741, 743, 1956 A.M.C. 1760, 1761.

This was a libel in rem against the geophysical vessel Phyllis Bamsu and against her owner in personam to recover the unpaid balance of $1,545 on a repair bill of $5,675.23. After a trial in which an experienced judge patiently acquiesced in extended argumentative jousting between the libelant's proctor and the Shipowner's principal expert who tenaciously adhered to his oft-expressed opinions of unreasonableness of work-time, the Court found the Shipyard's time excessive as to four items. The decree awarded $805.72 and by this appeal, libelant seeks to restore the amount of the reduction of $717.75.

The libelant did prove an impressive case and one which, had it been fully credited, would have resisted the perils, not alone of the seas, but of a capsizing by us of the findings from any inherent unseaworthiness as clearly erroneous. But the fact that the Shipyard's evidence showed in great detail with hundreds of time cards, payrolls, job sheets, and the like, the exact number of men by badge number, classification, time and place of performance of specific jobs, the work done and the time actually spent in it, did not necessarily prove up the whole case.

Indeed, the Shipyard, apparently preoccupied with this dovetailing of time-job-accounting records, became transfixed by the selfmesmerism of its own infallibility into thinking that if the time was actually used, it must, perforce, be paid for.

This was to ignore the whole purpose, so plainly evident from the time the opening volley was fired, of the defense whose answer simply was: assuming accuracy of time, that time was excessive, and hence the account is not reasonable.

The result was that after introduction of the Shipyard's chain of records and corroborative oral testimony now comprising 117 pages of the printed record, the rest of this long trial was concerned with evidence, now covering the remaining 248 pages of the record, pro and con, on the reasonableness of time actually taken as opposed to that which, in...