Kinney v. General Const. Co.

• Decision Date: 13 December 1967
• Citation: 435 P.2d 297,248 Or. 500
• Parties: Jay KINNEY, Respondent, v. GENERAL CONSTRUCTION COMPANY, a corporation, Appellant.
• Court: Oregon Supreme Court

Page 297

435 P.2d 297

248 Or. 500

Jay KINNEY, Respondent, v. GENERAL CONSTRUCTION COMPANY, a corporation, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted July 10, 1967.

Decided Dec. 13, 1967.

Lloyd W. Weisensee, Portland, argued the cause for appellant. With him on the briefs were Gray, Fredrickson & Heath, Portland.

Philip A. Levin, Portland, argued the cause for respondent. With him on the brief were Pozzi, Levin & Wilson, Portland.

Before: PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN, DENECKE and HOLMAN, JJ.

HOLMAN, Justice.

This is an action to recover damages for personal injuries which was brought by an employee against his employer for negligence under 46 U.S.C.A. (The Jones Act) and under the doctrine of unseaworthiness in accordance with general maritime law. A jury trial resulted in a verdict for plaintiff in the sum of $3,900 special damages and $48,000 general damages. Defendant appealed.

Plaintiff was employed as a deckhand on defendant's tug "Tillie". The "Tillie" was furnishing motive power for defendant's dump barge which was being used to transport bottom materials from the scene of a dredging operation. It was plaintiff's job to handle the lines on the barge and to keep its deck clean. The barge was moored to the dredge during loading by a spring line which was operated from a winch on the dredge. The line was bent around a steel-jacketed post about 18 inches in diameter and 30 inches high which was located on an upstream corner of the barge. Loading commenced into the downstream end of the barge and as the loading proceeded forward, the barge was positioned by slacking off the line. As the barge was loaded it sank lower in the water and the angle of the line from the dredge to the mooring post on the barge became more acute. There was no cap or cleat on the top of the post to keep the line from slipping off. The mooring line slipped from the post and in so doing whipped the plaintiff across the back and threw him against a bulkhead on the barge causing the injuries in question.

With one exception, all assignments of error relate to instructions which the court either gave or failed to give. The first two assignments of error will be given no consideration because they relate to matters to which an insufficient exception was taken. The purpose of an exception is to inform the trial judge of the reason the instruction should not have been given so that he will have an informed opportunity to reconsider the matter. The first assignment of error relates to an instruction to which an exception was taken but no reason was given therefor, and the second assignment relates to a failure to instruct where no instruction was requested.

Defendant's third specification of error in reality contains two specifications. The first is the claim that the following instruction was faulty:

'Now, let us take up some of the charges of negligence which plaintiff makes against the defendant:

'Plaintiff charges defendant in failing to provide a corner post on said barge without a cap, cleat or knob with which to secure the wire rope.

'Now, a barge owner has an absolute duty to seamen working on board a barge to furnish reasonably suitable appliances. If he does not do so, then no amount of due care or prudence excuses him, whether he knew, or could have known, of the deficiency at the outset or after use.

'Thus if you find that the defendant furnished a post which was not reasonably suitable for the purpose for which it was intended, and you further find that the plaintiff was injured as a proximate result of such failure, or that such failure contributed to any degree to cause the damage or injury, then the defendant would be negligent in that particular.'

There is no doubt that the instruction was erroneous because it confused unseaworthiness and negligence. It, in effect, told the jury that defendant had an absolute duty, regardless of the degree of care exercised, to furnish a proper post on the barge and that if it did not do so, it was negligent. However, the exception that was taken to the instruction was as follows:

'MR. WEISENSEE: Your next instruction which I want to except to is the first one on negligence, regarding the defendant has a duty to furnish reasonably suitable appliances. I can't--I couldn't write any more--I was trying to listen to it--but I think it was the first one under negligence, and it had no reference to any charge in the case. It was just a general instruction on furnishing reasonably suitable appliances, so I believe that would be an improper instruction, and I except to it for that reason.'

The suitable appliance instruction which was objected to was immediately preceded and had reference to the specification of negligence '* * * failing to provide a corner post on said barge without a cap, cleat or knob with which to secure the wire rope.' Therefore, defendant's exception that the instruction did not refer to a specific charge of negligence did not reach the defect in the instruction. The court was not apprised of the defect so that it had an opportunity to rectify it.

In addition, the distinction between negligence and unseaworthiness in relation to the corner post on the barge is really immaterial. The doctrine of unseaworthiness, which is a form of liability without fault, ¹ is applicable to any defect in the post caused by its lack of a cap. Thus, insofar as the allegation in question is concerned, the doctrine of liability without fault has swallowed that of negligence. The following statement is found in Gilmore & Black The Law of Admiralty, Ch. VI, p. 320 (1957):

'* * * And unseaworthiness has come to include not only such obvious things as defects in the structure of the ship and in the ship's machinery, appliances, furnishings, equipment and tackle, but even the fact that the ship's company includes incompetent officers and crew. The only case which is today clearly outside the scope of the unseaworthiness doctrine is the almost theoretical construct of an injury whose only cause is an order improvidently given by a concededly competent officer on a ship admitted to be in all respects seaworthy.'

The second instruction which was claimed objectionable by the third specification of error was as follows:

'You are instructed that an employer in the position of the defendant corporation in this case owes to its employees, seamen, and in this case the plaintiff, the duty of providing him with a reasonably safe place to work. This duty is a continuous, positive and non-delegable duty, a breach of which constitutes negligence.'

The instruction is virtually identical to an instruction set forth in Gentry v. States Steamship Co., 229 Or. 233, 248--249, 366 P.2d 880, 887 (1961). In that case it had been requested by the plaintiff and refused. The court held the refusal to be proper and pointed out that it was erroneous because it was directed to the issue of negligence and not unseaworthiness, yet it omitted any reference to the rule that defendant could be held liable for negligence only if defendant knew or reasonably should have known of the defect. The opinion recognized that it would have been proper if given in relation to an instruction on unseaworthiness, since it stated: 'It tended to define negligence as identical to unseaworthiness.' Also see Interocean S.S. Co. v. Topolofsky, 165 F.2d 783, 784 (C.A. 6th Cir. 1948), which states: '* * * Appellant had the duty of furnishing appellee a safe place in which to work and was responsible for a seaworthy ship and safe equipment. * * *'

The instruction having been incorrect, it remains to determine whether the exception taken to it was sufficient to apprise the court of its error, and if it was, whether the giving of it was reversible error considering the context in which it was used and the other instructions that were given. The exception was taken as follows:

'MR. WEISENSEE: Then you also gave an instruction on 'safe place to work,' and that wasn't charged and I--

'THE COURT: Well, that was in respect to unseaworthiness.

'MR. WEISENSEE: You gave two instructions on that.

'THE COURT: Well, unseaworthiness--

'MR. WEISENSEE: I except to the instruction on 'furnishing of a safe place to work.'

'THE COURT:--and non-delegable as part of that.'

The exception was apparently taken on the basis that the instruction was wrong because there was no separate allegation that...