Macartney v. Compagnie Generale Transatlantique, 15664.

• Citation: 253 F.2d 529
• Decision Date: 01 April 1958
• Docket Number: No. 15664.,15664.
• Parties: Walter Herbert MACARTNEY, Appellant, v. COMPAGNIE GENERALE TRANSATLANTIQUE, a corporation, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

253 F.2d 529 (1958)

Walter Herbert MACARTNEY, Appellant, v. COMPAGNIE GENERALE TRANSATLANTIQUE, a corporation, Appellee.

No. 15664.

United States Court of Appeals Ninth Circuit.

February 28, 1958.

Rehearing Denied April 1, 1958.

COPYRIGHT MATERIAL OMITTED

John F. Conway, Portland, Or., for appellant.

Wood, Matthiessen, Wood & Tatum, Portland, Or., for appellee.

Before STEPHENS, Chief Judge, and CHAMBERS and BARNES, Circuit Judges.

BARNES, Circuit Judge.

This is a suit by a longshoreman, a citizen of Oregon, against a foreign corporation seeking to recover for injuries allegedly sustained on October 10, 1954, aboard a vessel owned by defendant while plaintiff was engaged in unloading heavy crates of glass from said vessel, using a dolly in doing so. The action is based both upon unseaworthiness of the vessel and negligence on the part of defendant, in that it was charged the dolly was defective. Jurisdiction of the District Court for the District of Oregon arises under 28 U.S.C. § 1332(a)(2) — suits between citizens of a state and foreign states or citizens thereof. The case was tried to a jury which rendered a verdict for defendant, and answered special interrogatories as follows:

"1. Was the dolly unseaworthy or unsafe? A. No.

"2. Was the (vessel) caused to lurch, careen, tilt, slant, lean or heel over by reason of the fact that too much cargo was being unloaded from one part of the ship at that time? A. No."

The appeal was timely filed. This Court has jurisdiction under 28 U.S.C. §§ 1291 and 1294.

Appellant urges five specifications of error, the second of which is waived by him.

I — The Failure to Specify the General Damages Claimed.

The third error claimed is the failure of the court to mention to the jury the amount of general damages demanded by appellant.¹

The short answer to any claimed error with respect to damages is that presumably the jury never reached that issue, in view of the general verdict and special interrogatories returned.

However, we consider appellant's point. In support of his position that the amount of general damages sued for must be mentioned to the jury, he cites Chesapeake & Ohio R. Co. v. Carnahan, 1915, 241 U.S. 241, 36 S.Ct. 594, 60 L.Ed. 979; McDermott v. Severe, 1905, 202 U.S. 600, 26 S.Ct. 709, 50 L.Ed. 1162; Hoffschlaeger Co., Ltd. v. Fraga, 9 Cir., 1923, 290 F. 146, 149.

Each of these cases holds it was not error for the court to mention the amount prayed for, provided other instructions were given instructing the jury that the amount mentioned was merely a limit beyond which they could not go, "that the sum claimed should not be taken as a criterion to act upon,"² and that proper proof of damage and causal relationship remained the burden of the plaintiff to establish by a preponderance of the evidence.

Because these cases state that giving such an instruction under such circumstances was not error, does not prove the converse: that the failure to give such an instruction mentioning the maximum prayed for was error.

We thus are cited to no cases which support appellant's third specification of error. We find no cases in point.³ However, one of the cases urged by appellant refers to the evidentiary value of such a figure. In Hoffschlaeger Co., Ltd. v. Fraga, supra, this Court said "such claims are not evidence." We reaffirm that much of our previous statement.

II — Supplementary Instructions.

The first specification of error refers to the giving, and the fourth and fifth to the content, of the supplementary instructions given when the jury was recalled to the courtroom.

II A — The Content of the Supplementary Instructions.

Alleged error four refers to a supplementary instruction given by the trial judge on burden of proof. He gave a laudable and perfectly correct instruction, having to do with the duty of the jury to reach a verdict, down to his last four words.

"On the other hand, if a majority or even a lesser number are for the defendant, other jurors ought to consider, to ask themselves again whether they have reason to doubt the correctness of a judgment which is not concurred in by many of their fellow jurors and whether they should not distrust the weight or sufficiency of evidence which fails to convince the minds of several of their fellows beyond a reasonable doubt." Emphasis added. Appellant\'s Brief, p. 37.

This was without doubt a mere slip of the tongue, for the able trial judge had already adequately and properly instructed the jury on the burden of proof in a civil case. When taking up another subject (their duty to attempt to reach agreement), he lapsed into the phrase "beyond a reasonable doubt." This was not correct. On six occasions previously the trial judge had correctly emphasized the "preponderance of the evidence" test. He had correctly given the test each time when discussing burden of proof. It was only when discussing the jury's duty to consult with one another in an effort to reach a verdict, that the wrong standard was inadvertently used.

The trial judge prefaced his supplementary remarks by telling the jury to recall his prior instructions. And those were entirely accurate. Furthermore, at the point where the alleged error occurred, the trial judge was not discussing burden of proof but was articulating to the jury the well known fact that not all persons, even jurors, always see all the facts in the same way, and therefore when there is a difference of opinion, those in the minority should reassess their positions and consider why the facts they have found are unable to create a "reasonable doubt" in the minds of their fellow jurors. It is difficult to see how this chance phrase in the context used could have confused the jury and caused them to believe that plaintiff was suddenly required to sustain a criminal burden of proof rather than the preponderance burden on which they had been fully instructed earlier.

We must keep in mind that the wrong measure of proof is a two edged sword. The jury here found, by its answers to the special interrogatories, that the dolly was not unseaworthy or unsafe, and that the vessel did not lurch, careen, tilt, slant, lean or heel over. To require them in so finding to apply the test of evidence convincing "beyond a reasonable doubt" was harmful to the appellee steamship company. And if the jury did pay heed to the one mis-reference and not to the six correct references to the standard they were to follow, and still found the answers given to the special interrogatories, the error helped the appellant — it did not hurt him.

We agree with the law cited and relied upon by appellant, that "generally, inconsistent instructions require a reversal" (Eid v. Larsen, 1953, 200 Or. 83, 264 P.2d 1051, 1052); "* * * misleading and inconsistent instructions are frequently deemed ground for new trials or reversals * * *" (Williams v. Portland General Electric Co., 1953, 195 Or. 597, 247 P.2d 494, 499); "* * instructions * * * which were calculated to mislead the jury" are error (Rea v. Missouri, 1873, 17 Wall. 532, 84 U.S. 532, 21 L.Ed. 707); and instructions "so inconsistent with other instructions that they tend to confusion and misapprehension" may justify a reversal.

We hold the four words "beyond a reasonable doubt" should not have been given, but under the circumstances of this particular case, giving them was not prejudicial error requiring reversal.

The fifth alleged error charges an erroneous supplementary instruction as to the definition of seaworthiness. Admittedly, voluminous and adequate instructions on this subject were originally given, and were correctly given.

It should be kept in mind that appellant sued on two counts, for negligence and for unseaworthiness. A juror asked for a definition of the word "defective." The trial judge then said, in answer thereto:

"`Defective\' in this instance would be a piece of equipment which a reasonably prudent person would not have maintained. It does not have to be a perfect piece of equipment. I think I explained that to you. The test of seaworthiness is not perfection but what a reasonably prudent person would have done under all the circumstances."

This was not a correct instruction. The court previously had said, correctly:

"* * * again, I want to call your attention to the fact that a ship is not an insurer of the safety of all persons using its facilities and that the standard required of the defendant is not absolute safety but reasonable safety. In other words, the defendant was not required to safeguard the plaintiff against all risk and danger, but only against risk and dangers that are unreasonable. The most reasonable conduct frequently creates risks to others. If such conduct is reasonable no negligence can be said to arise from it."

The court could have properly said: "The test of seaworthiness is not perfection but what constitutes reasonable fitness under all the circumstances." Perhaps the court meant this, but it didn't say it. We cannot approve the instruction. Neither are we required to find it so misleading or confusing, taken with the proper instructions, as to require reversal. We hold it does not.

We are strengthened in our conclusion by our belief that it was the duty of counsel, if he wanted to object to the instructions given, to be present at the time they were given in open court, and reveal his objections to the court before the jury again retired. We shall now discuss that point, which is controlling irrespective of what our conclusions may be with respect to prejudicial error, or the lack of it, in connection with the instructions given.

II B — The Giving of Supplementary Instructions.

After the jury had been out precisely three hours, and could not agree, it was returned to the courtroom. A juror requested clarification of certain instructions. Apparently neither counsel for appellant nor respondent was present. The court was under the impression that both counsel had "waived * * * (their)...