McClendon v. Reynolds Electrical and Engineering, 27441.

• Decision Date: 07 October 1970
• Docket Number: No. 27441.,27441.
• Citation: 432 F.2d 320
• Parties: Jude McCLENDON, Plaintiff-Appellant, v. REYNOLDS ELECTRICAL AND ENGINEERING, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

432 F.2d 320 (1970)

Jude McCLENDON, Plaintiff-Appellant, v. REYNOLDS ELECTRICAL AND ENGINEERING, Defendant-Appellee.

No. 27441.

United States Court of Appeals, Fifth Circuit.

October 7, 1970.

Ben H. Stone, Gulfport, Miss., Bobby G. O'Barr, Clyde Hurlbert, Biloxi, Miss., for plaintiff-appellant.

George Morse, Eldon Bolton, Jr., Morse & Morse, Gulfport, Miss., for defendant-appellee.

Before WISDOM, SIMPSON and CLARK, Circuit Judges.

SIMPSON, Circuit Judge.

Jude McClendon appeals from an adverse jury verdict and judgment in the district court. The judgment denied recovery of money damages from the defendant, Reynolds Electrical and Engineering, a corporation (Reynolds). Reynolds was a subcontractor of McClendon's employer, Malan Construction Company of Koppers, Inc. (Malan) at a NASA missile site in Hancock County, Mississippi. Jurisdiction below was based on diversity of citizenship and requisite amount in controversy between McClendon, a Mississippian, and Reynolds, a Texas corporation. The appellant was a forty-one year old Negro construction worker with ten dependents.

On the morning of September 2, 1965, appellant, as directed by Malan, was helping Bobbie Shivers, a Reynolds employee, excavate the earth for the placement of pipe. Shivers was using a diesel-powered machine known as a back hoe, essentially a hole digger. Its parts were a boom with an attached 200 pound bucket. The boom was capable of being moved rapidly. As Shivers and McClendon were changing buckets on the boom, Shivers attempted to raise the boom and touched the wrong lever. This mistake caused the boom and the heavy bucket to come about quickly and strike appellant before he could get out of its way. He was struck in the hip and lower back with such force as to knock him four or five feet away. McClendon lay where he fell until he was transported to a hospital by ambulance. There he was examined by a doctor, x-rayed, released and sent back to work.

Following this accident McClendon continued to work from September 2, 1965 to January 10, 1966. He slept on a hard bed, took aspirin as prescribed for his pain and used an electric heat pad. On January 10 he felt a sharp pain in his back upon lifting a five-gallon bucket during a manhole cleaning job. Again, he was on loan to Reynolds with Shivers his supervisor.

Doctor Kirgis, the third of four doctors to examine appellant subsequent to this second occurrence, saw him first in March 1966. He diagnosed appellant's condition as a ruptured lower lumbar disc by reason of which McClendon was unable to perform manual labor at the time of trial in November 1968. Dr. Kirgis had continued to treat McClendon in the interval, several times sending him back to work a few days at a time.

On September 8, 1967, McClendon received $11,066.31 in Workmen's Compensation benefits from Malan's compensation insurance carrier. Thereafter on April 19, 1968 he filed suit in the court below against Shiver's employer, Reynolds, seeking recovery for all past, present and future pain, suffering, loss of wages, and medical expense proximately caused by the September 2, 1965 accident and any subsequent damages caused by aggravation of the injury.

The jury returned a general verdict for the defendant Reynolds, and the court below, after denying motions for new trial and judgment n.o.v., entered the judgment appealed from.

The sole issue urged on appeal is the adequacy of the charge to the jury. It is urged by appellant that the instructions taken as a whole were so misleading as to preclude the jury from proper consideration of whether the injury received on January 10, 1966 aggravated the pre-existing injury proximately caused by the defendant's earlier and admitted negligence in inflicting the September 2, 1965 injury. We agree that this is so and reverse for a new trial.

The misleading nature of the trial court's instructions manifested itself in three particulars. First, the court charged the jury:

"As you know, this man had two accidents. He had an accident on September the 2nd, 1965 and that accident is the subject matter of this suit. He also had an accident on January 10th, 1966, and that accident is not in any manner or form a part of this suit, and the defendant in this case had no responsibility and has no liability whatsoever for the accident of January the 10th, 1966. The only question before you for determination in this case is as to whether or not the defendant in this case was negligent in injuring this plaintiff on September the 2nd, 1965, and as to whether or not such negligence was the proximate cause of plaintiff\'s damages and injuries for which he sues in this case, and, if so, as to the amount of such damages and if not it would be your duty to then return a verdict for the defendant.

* * * * * *

"* * * and he must likewise prove by the greater weight of the more convincing evidence as to what his injuries were as a proximate result of that incident on September the 2nd, 1965, because that is the only accident that is before this Court in this case for which the defendant could possibly have any responsibility or liability." (Emphasis added)

These instructions so isolated and emphasized the September 2, 1965 liability and resultant damages that the jury may well have been misled into understanding they could not consider appellee's negligence on September 2, 1965 as the proximate cause of the January 10, 1966 injuries.

Second, the court instructed:

"You are further instructed that if you find for the plaintiff, in determining or fixing the amount of any damages you will award him, it is your duty to take into consideration * *

"5. Any reasonable and necessary future medical expenses which will probably be incurred, if any, by the plaintiff as a result of the September 2, 1965, accident.

* * * * * *

"You are not to assess damages for any injury or condition from which the plaintiff may have suffered or may now be suffering unless * * * such injury or condition was proximately caused by the accident in question on September 2, 1965." (Emphasis added)

These instructions gave the jury basis for understanding incorrectly that if appellant's condition at trial was caused in part by the January 10, 1966 incident, they could not assess damages for injuries except those in existence prior to January 10, 1966.

Third, we believe that the court's charge may have misled the jury when it failed to place proximate cause in proper relation to aggravation. Under the facts of this case, it was the duty of the trial court to instruct the jury that if the September 2, 1965 accident caused an injury which was subsequently aggravated on January 10, 1966, the original wrongful act is deemed the proximate cause of the entire injury, and damages are recoverable therefrom, provided the act of the injured plaintiff aggravating the injury was in keeping with the conduct of a reasonably prudent person under all the circumstances. This principle is well established in our law. 25A C.J.S. Damages § 184, pp. 207, 208; 22 Am.Jur.2nd, Damages § 111, p. 162; Restatement of the Law, Torts, Second Edition, § 460, p. 379. Also cf. Henderson v. United States, 5 Cir. 1964, 328 F.2d 502; Mississippi Central R. Co. v. Lott (1918), 118 Miss. 816, 80 So. 277; and Occhipinti v. Rheem Manufacturing Co., Inc. (1965), 252 Miss. 172, 172 So.2d 186. As a result of the trial court's failure to give an appropriate instruction relating proximate cause and aggravation, the jury was deprived of the opportunity to consider the proximate cause of the claimed aggravation and the reasonableness of the appellant's act January 10, 1966, in picking up the five-gallon bucket. Although the court did give abstract proximate cause instructions,¹ it failed to make clear to the jury that the September 2, 1965 negligence and damages could be found to be the proximate cause of the January 10, 1966 injuries as the result of an aggravation of the September 2, 1965 injuries.

The court's instructions considered as a whole were misleading and erroneous.

It is urged by the appellee Reynolds that the court did instruct the jury on "subsequent injury" and that this instruction should have made clear to the jury that they could find the January 2, 1966 injuries as aggravations of the September 2, 1965 injury. We think that the court's general instruction on "subsequent injury"² was vitiated...