Menard v. Penrod Drilling Co., 75-1591

• Decision Date: 15 September 1976
• Docket Number: No. 75-1591,75-1591
• Citation: 538 F.2d 1084
• Parties: Larry James MENARD, Plaintiff-Appellee, v. PENROD DRILLING COMPANY et al., Defendants-Appellants. The Charity Hospital of Louisiana, Intervenor.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1084

538 F.2d 1084

Larry James MENARD, Plaintiff-Appellee, v. PENROD DRILLING COMPANY et al., Defendants-Appellants The Charity Hospital of Louisiana, Intervenor.

No. 75-1591.

United States Court of Appeals Fifth Circuit.

Sept. 15, 1976.

Marcel Livaudais, Jr., New Orleans, La., for defendants-appellants.

Darryl J. Tschirn, Gothard J. Reck, Metairie, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before RIVES, GOLDBERG and GEE, Circuit Judges.

RIVES, Circuit Judge:

Larry J. Menard, the plaintiff, born on February 27, 1953, was 19 years of age when he got a job with the defendant Penrod Drilling Company (hereafter Penrod) as a roustabout working on a submersible drilling rig. In the very early morning hours of October 10, 1972 (about 10 months after his employment by Penrod), Menard was working alone in a storage room of the rig, lifting metal "inserts" ¹ off the floor and putting them on a box or shelf about eye level high. Menard testified that he told his tool pusher, Mr. Haley, the inserts were too heavy for one man and "I needed help" but he said "to do the best I could because (we were) short-handed." (App. 462.) Mr. Haley testified differently. Menard further testified that he picked up five or six of the inserts and put them on the shelf or box. The next one slipped in his grasp, he fell backward and down with the insert forcibly striking his abdomen. ² Menard's tool pusher, Mr. Haley, filled out an accident report (App. 224).

According to Menard, when Haley declined to have anyone drive Menard some 200 miles to his home in Kaplan, Louisiana, Menard, despite much pain, went ashore, got in his car at the dock, and drove home arriving between 3:00 and 4:00 P.M. He stayed in bed at home for several days and on October 15, 1972 was admitted to the Kaplan Memorial Hospital (App. 505). A surgeon, Dr. Trahan, on October 17, operated on Menard for a bilateral hernia. Menard was discharged from the hospital on October 25 and continued treatment as an outpatient for several weeks (App. 507).

On November 10, 1972, Menard's attorney filed his complaint titled "SEAMAN'S SUIT UNDER THE JONES ACT" (App. 5). The jury did not agree on a verdict at the first trial, and on November 30, 1973 a mistrial was ordered.

Before that trial, Menard had been married twice. His first marriage ceremony was performed on January 20, 1973 and about one week later, on January 28, his bride permanently separated from him stating as her reason that he was "not a man" (App. 509, 510). Menard testified that he got married to another woman in October, 1973, the month before the first trial, but continued to have sexual problems up to the time of his testimony on the second trial.

The second trial occurred on December 12 and 13, 1974. The jury returned a special verdict ³ as follows:

Judgment was entered upon that verdict (App. 271) against Penrod and its insurer; the defendants' post-trial motions were denied; and the defendants appealed. We come to the issues raised on appeal by defendants-appellants.

MENARD'S STATUS AS A SEAMAN

The district court, at the time of the first trial on November 30, 1973, granted plaintiff's motion for summary judgment as to the status of Penrod's rig # 62 being a vessel in navigation and as to Menard's being a seaman and member of the crew of the said vessel (App. 169). In addition to supporting that motion by a lengthy affidavit (App. 175, 176), the plaintiff introduced a stipulation of the parties to the following facts:

"1. That at the time of the plaintiff's alleged injury he was employed by Penrod Drilling Company;

"2. That at the time of plaintiff's injury he was employed by Penrod Drilling Company aboard their Rig # 62;

"3. That Rig # 62 was a movable drilling barge (jackup rig) owned by Penrod Drilling Company;

"4. That plaintiff was injured while aboard Rig # 62 while in the course and scope of his employment with Penrod Drilling Company "5. That Rig # 62 had been completely constructed and delivered to Penrod Drilling Company some months before plaintiff's alleged accident and injury, earlier that year;

"6. That for some time it had been in full operation of drilling for oil in the Gulf;

"7. That at the time of plaintiff's alleged injury, plaintiff and the rest of the crew were preparing Rig # 62 for an overseas tow, to its next drilling location." (App. 177.)

The defendants offered no evidence in opposition to the motion. The plaintiff's affidavit and the stipulation of the parties sufficiently established the absence of a genuine issue of fact to prevent the defendants from relying upon their denials in pleading and to put them to their defense by affidavits or otherwise, setting forth specific facts to show the existence of a genuine issue for trial. See Rule 56(e), Fed.R.Civ.P.

The defendants had a further opportunity to offer evidence upon the second trial, or to object to the court's repeated instruction to the jury that "I instruct you that the plaintiff, Larry Menard, was a seaman and that he was employed aboard a vessel within the meaning of the Jones Act." (App. 607, repeated at 631.) When the district judge in the absence of the jury called on counsel for objections to the oral charge, defense counsel made a simple objection to the omission of an unrelated requested charge and characterized that as "the only objection I have." ⁴

SUFFICIENCY OF THE EVIDENCE

The defendants' motions for directed verdict, for judgment n. o. v., and for a new trial were denied.

The sufficiency of the evidence to support the verdict is for the jury in the first instance and, under the Seventh Amendment, re-examination of facts found by the jury is strictly limited to the rules of the common law. That constitutional requirement is reinforced by statute in cases brought under the Federal Employers' Liability Act and those under the Jones Act. Boeing v. Shipman, 5 Cir. 1969, 411 F.2d 365, 371. (See 46 U.S.C. § 688.)

The jury and the district judge were in better position than is this Court to judge the credibility of Menard's testimony. Ultimately the case turns on whether Menard testified truthfully or falsely. The jurors obviously believed his testimony. The able district judge declined to set aside the jury's verdict. The evidence of the defendants' negligence in failing to provide a competent driver of an available forklift or to instruct plaintiff how to operate it and in refusing plaintiff's request for help was sufficient to support the jury's verdict.

The judge declined also to hold the amount of the verdict excessive. This Court has held that the court's power to grant a new trial for excessiveness of a verdict, or to condition a new trial upon consent to a remittitur, is "reviewable only for a grave abuse of discretion." Bonura v. Sea Land Service, Inc., 5 Cir. 1974, 505 F.2d 665, 669, 670; reh. en banc den., 1975, 512 F.2d 671. In Gorsalitz v. Olin Mathieson Chemical Corporation, 1970, 429 F.2d 1033, 1045, we quoted with approval Judge Skelly Wright's practical test of "abuse of discretion" in a situation like that here presented:

"There has been much discussion of the content which should be given to the elusive phrase 'abuse of discretion,' with the weight of learning against appellate reversal except in relatively rare cases.

"This learning has largely arisen from consideration of cases in which motions for new trial especially on the ground of excessive verdict have been denied. Two factors unite to favor very restricted review of such orders. The first of these is the deference due the trial judge, who has had the opportunity to observe the witnesses and to consider the evidence in the context of a living trial rather than upon a cold record. The second factor is the deference properly given to the jury's determination of such matters of fact as the weight of the evidence and the quantum of damages. This second factor is further weighted by the constitutional allocation to the jury of questions of fact.

"Where the jury finds a particular quantum of damages and the trial judge refuses to disturb its finding on the motion for a new trial,...