Melton v. OF Shearer & Sons, Inc.

• Decision Date: 21 December 1970
• Docket Number: No. 19928.,19928.
• Parties: Clara Rose MELTON, Administratrix of the Estate of Mark Melton, Deceased, Plaintiff-Appellant, v. O. F. SHEARER & SONS, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

436 F.2d 22 (1970)

Clara Rose MELTON, Administratrix of the Estate of Mark Melton, Deceased, Plaintiff-Appellant, v. O. F. SHEARER & SONS, INC., Defendant-Appellee.

No. 19928.

United States Court of Appeals, Sixth Circuit.

December 21, 1970.

COPYRIGHT MATERIAL OMITTED

H. Solomon Horen, Louisville, Ky., for plaintiff-appellant; W. Mallam Lake, Hartford, Ky., on brief.

T. Kennedy Helm, Jr., Louisville, Ky., for defendant-appellee; Lively M. Wilson, Stites & McElwain, Louisville, Ky., on brief.

Before PHILLIPS, Chief Judge, McCREE, Circuit Judge, and O'SULLIVAN, Senior Circuit Judge.

O'SULLIVAN, Senior Circuit Judge.

Plaintiff-appellant, Clara Rose Melton, administratrix of the estate of her deceased son, appeals from judgment entered upon a jury verdict which absolved defendant-appellee, O. F. Shearer & Sons, of liability for the alleged wrongful death of appellant's ten year old son. The son was drowned when a flatboat in which he was a passenger was swamped by stern waves created by appellee's towboat, then operating on the Green River in the State of Kentucky. This diversity case was removed to and tried in the United States District Court for the Western District of Kentucky.

The jury returned a verdict for the defendant, O. F. Shearer & Sons, Inc. The colloquy between the Court and jury foreman during the announcement of the verdict suggests that the jury may have found the navigator of the flatboat, Eugene Melton, father of the deceased boy, Mark Melton, and the pilot of the towboat, both guilty of negligence contributing to the casualty. Under applicable Kentucky law, contributory negligence of the father would be a defense in bar to the action. Emerine v. Ford, 254 S.W. 2d 938, 941 (Ky.1953); Burch v. Byrd, 246 S.W.2d 595 (Ky.1952).

Appellant charges error in the District Judge's refusal to allow plaintiff's counsel, having called him to the stand, to cross-examine and impeach the pilot of the defendant's towboat, either as a hostile witness, an adverse party, or as a managing agent of defendant. The witness, Claude A. Keymon, was not in the employ of defendant at the time of trial, but was still engaged as a river boat pilot for another employer, operating on the Green River. Plaintiff also charges error in the District Judge's refusal to allow in evidence those parts of the deposition of an expert witness called by plaintiff which were based in part upon answers given by the towboat's pilot in a pretrial deposition. Error is further assigned in the District Judge's refusal to give various instructions proffered by plaintiff, one of which would have allowed the jury to consider whether plaintiff should recover under the doctrine of last clear chance.

The involved fatal accident occurred during the daylight hours of Labor Day, September 4, 1967. Defendant's towboat, the Etta Kelce, was pushing four empty barges upstream in the Green River, in Kentucky. At the scene, Green River forms the boundary between Muhlenberg County on the right and Ohio County on the left, as boats proceed upstream. The towboat was negotiating a left bend in the river. The plaintiff's deceased, Mark Melton, along with two brothers and a friend, was riding in a small flatboat operated by his father. The flatboat was proceeding downstream, some distance above the approaching towboat. Deciding that he could not safely proceed to the Ohio County side where the party was going hunting, the deceased's father crossed the river ahead of the towboat and began angling downstream toward the Muhlenberg County side. Before he reached a place of safety, the flatboat was swamped by one of the towboat's stern waves. Young Melton was drowned when the flatboat sank. Plaintiff charged that the cause of the boy's death was the negligent operation of the towboat and its barges, and that the operator of the flatboat, the deceased boy's father, was exercising due care. Plaintiff also claimed that the conduct of the towboat's pilot was such that the jury should have been allowed to fix liability on defendant by application of the last clear chance doctrine.

1. Cross-examination and impeachment of defendant's pilot.

Claude A. Keymon was acting as pilot of the tow unit during the events here considered. He had been subpoenaed by plaintiff, but arrived at court in the company of defendant's attorneys. He testified that although he had never been licensed as a pilot, he was, at the relevant time, exclusively in control of the Etta Kelce and its barges. He was called to the stand by plaintiff's counsel "as if on cross-examination, being a hostile witness." Upon objection of defense counsel that Keymon was no longer in the employ of defendant and had not been shown to be hostile, the District Judge advised plaintiff's counsel that Keymon would be his witness and thereafter forbade cross-examination by leading questions or otherwise, and refused to allow plaintiff's counsel to impeach Keymon's testimony or refresh his recollection by using statements made by Keymon in a pretrial deposition. The District Judge's ruling also frustrated plaintiff's use of some parts of the de bene esse deposition of plaintiff's expert witness, Captain Duncan, a pilot licensed to navigate towboats and barges on the Green River in Kentucky. A pretrial discovery deposition of defendant's pilot, Keymon, had been taken prior to the taking of Captain Duncan's deposition. A hypothetical question was put to Duncan as an expert, based in part upon facts which had been testified to in Keymon's deposition. Keymon's deposition had been denied admission in toto, because of the Court's above ruling. Objection was therefore sustained to such parts of the deposition testimony of Captain Duncan as were bottomed upon the deposition of Keymon. Appellant claims additional hurt to plaintiff's case, in that statements made by Keymon in his excluded deposition were allegedly relevant to and supportive of his claim that he was entitled to have the jury consider whether liability of defendant could be found based on the doctrine of last clear chance.

We need not here make a full exposition of the conflicts between Keymon's testimony in court and that given on his deposition. Sufficient to say that there were material conflicts between his trial and deposition accounts of what happened on the day young Melton was drowned.

a) Keymon's hostility and status as managing agent of defendant, or adverse party.

In considering the foregoing subject, we are advised by the Federal Rules of Civil Procedure, as well as Kentucky's like rules. Rule 43(b) of the Federal Rules provides:

"(b) Scope of Examination and Cross-Examination. A party may interrogate any unwilling or hostile witness by leading questions. A party may call an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party, and interrogate him by leading questions and contradict and impeach him in all respects as if he had been called by the adverse party, and the witness thus called may be contradicted and impeached by or on behalf of the adverse party also, and may be cross-examined by the adverse party only upon the subject matter of his examination in chief."

Dealing with the same subject, Rule 43.07 of the Kentucky rules provides:

"Impeachment of Witnesses. A witness may be impeached by any party, without regard to which party produced him, by contradictory evidence, by showing that he had made statements different from his present testimony, or by evidence that his general reputation for untruthfulness renders him unworthy of belief; but not by evidence of particular wrongful acts, except that it may be shown by the examination of a witness, or record of a judgment, that he has been convicted of a felony."

We are of the view that whether we employ one or the other, or both, of the above rules, plaintiff's counsel should have been permitted to cross-examine and impeach the witness Keymon. The District Judge's position was that when Keymon was called, he was plaintiff's witness and would remain so until Keymon's attitude on the stand was demonstrative of hostility to plaintiff's case. Absent the special circumstances here, we would agree that resolution of a witness' hostility vel non would be a matter within the discretion of the trial judge. Such is a correct general rule. Rossano v. Blue Plate Foods, Inc., 314 F.2d 174, 179 (5th Cir.), cert. denied 375 U.S. 866, 84 S.Ct. 139, 11 L.Ed.2d 93 (1963); Sanford Bros. Boats, Inc. v. Vidrine, 412 F.2d 958, 970 (5th Cir. 1969).

It is with some reluctance that we find fault with the District Judge's ruling. This is so because of counsel's meager articulation of the bases for his claim of right to cross-examine witness Keymon. After a bare assertion that he was calling Keymon for cross-examination, and upon the first refusal to allow him to do so, counsel said:

"This man was the pilot of the boat and an employee of the company at the time it occurred, sir, and inasmuch as he is obviously a hostile witness may we have the privilege of cross examining him?"

Later, when it appeared that Keymon's trial testimony was at odds with some statements made by him in a pretrial deposition, plaintiff's counsel said:

"If he counsel is surprised by inconsistent statements of this witness as compared to statements made by the same witness prior to trial, that he is permitted to introduce for the purpose of affecting the credibility of that witness statements made before trial, and I cite Your Honor Barkley v. U. S., 319 F2d 217 (sic) which involved a tax case. And a more recent case of Journeyman Plasterers, et al., v. NLRB, 7 Cir., 341 F.2d 539, stating in effect that a witness who surprises his party calling him by giving testimony contrary to statements made prior to the trial may be impeached by their statements made prior to trial."

After employing our opportunity for contemplative consideration of the...