Merchant v. Ruhle

Citation740 F.2d 86
Decision Date01 August 1984
Docket NumberNo. 83-1908,83-1908
PartiesJames P. MERCHANT, Plaintiff, Appellee, v. Philip Henry RUHLE, Defendant, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Frank H. Handy Jr., Boston, Mass., with whom Kneeland Kydd & Handy, Boston, Mass., was on brief, for defendant, appellant.

Joseph M. Orlando, Gloucester, Mass., with whom Orlando & White, Gloucester, Mass., was on brief, for plaintiff, appellee.

Before COFFIN, Circuit Judge, STEWART, * Associate Justice (Retired), and BREYER, Circuit Judge.

COFFIN, Circuit Judge.

This case began as a seaman's claim for damages arising from a back injury suffered as the result of the shipowner's alleged negligence under the Jones Act and alleged maintenance of an unseaworthy vessel. What takes it out of the ordinary is that the jury rendered arguably inconsistent verdicts on negligence and seaworthiness. It answered "yes" to the question: "Did the plaintiff's injuries result in whole or in part from the negligence of the defendant?" It answered "no" to the question: "Did the plaintiff's injuries result in whole or in part from an unseaworthy condition of the defendant's vessel?"

The facts, viewed favorably to the plaintiff-appellee, follow. Plaintiff, who was a member of the crew of a fishing vessel, was loading boxes of frozen mackerel to serve as bait for swordfish when he was injured. His job was to stand on a platform composed of "penboards". Penboards are planks designed to be stacked vertically so as to form a fourth side to enclosures, or "pens" in which fish are stored. In this ship, however, the planks were arranged so that they could be placed horizontally at adjustable heights in the center of the hold to form a platform.

On the day the plaintiff was injured, his assignment was to stand on this platform, which was painted with latex paint, and to reach up to the deck to receive a fifty to seventy-five pound box of bait, which had been carried by a chute from a truck to the deck. A deckhand would take the box from the chute and hand it to the plaintiff who then had to swivel, crouch, and hand it to a crewman in the hold for stowage in a pen. For an hour plaintiff performed this work, occasionally kicking away accumulations of ice which had been spewed onto the platform by two ice machines located on the deck. Finally, plaintiff fell, complaining of pain in his back, but he continued to work for another hour. Plaintiff's witnesses testified that other and better loading methods were feasible: use of a chute to avoid the stage of operations performed by plaintiff; covering the penboards with a less slippery surface such as asphalt tile; constructing the platform of grates with raised edges; lowering the boxes of bait into the hold by winch.

At the end of the three day trial the district court gave its instructions. It began by saying that the jury could find that plaintiff's injuries had been caused "by either the negligence or by the unseaworthiness of the vessel, or by both". It concluded with the same thought. In between, it wrestled with the definitions of negligence and unseaworthiness. Addressing negligence, the court urged the jury to consider the "whole picture" and gave the example of the differing requirements of care for one driving through a busy shopping district during the Christmas rush and for one using the same street when the shops are closed. It wound up its discussion by characterizing the alleged negligence as permitting or causing plaintiff to use a platform of penboards made slippery by ice. The court added that the jury had heard the evidence and its recollection was to govern.

In addressing unseaworthiness the court at first adopted a narrow definition, saying "that things about a ship, whether it's the hull, or the decks, the machinery, the equipment, the tools, must be reasonably fit for the purpose." Only later, in the course of a third explanation did the court add that unseaworthiness could also consist of the "manner" in which equipment was used. Its bottom line conclusion, however, was that plaintiff's unseaworthiness claim was that he was required to work on an icy platform of penboards--the same characterization it had given the negligence claim.

After the charge, appellant objected only to the court's refusal to give requested charges on contributory negligence and on prejudgment interest. The jury, after approximately two hours, requested another explanation of unseaworthiness. The court repeated its earlier instruction. Upon ascertaining that the jury was not yet satisfied, the court undertook a third explanation, saying that the question was whether use of the penboard platform onto which ice had allegedly fallen was a reasonably fit way to take the boxes of bait into the hold. The court added that this was "in addition to negligence. Negligence has nothing to do about this." An hour later the jury reported, finding the defendant negligent but the vessel seaworthy. The court asked if there were any questions. Counsel for defendant said, "No, your Honor."

Several days later defendant moved for a new trial, charging that there had been insufficient evidence of both negligence and unseaworthiness and that the verdicts were "irreconcilably inconsistent". We need spend no time on the challenge to the sufficiency of evidence of unseaworthiness; defendant, after all, has a jury verdict in his favor. Little more effort need be spent on the sufficiency of evidence of negligence. The use of the smooth, painted penboards, the spraying of ice on the platform, the failure to employ a longer chute, or grates, or asphalt tiling, or to lower the boxes by winch--any of these factors would have been sufficient to support a finding of unreasonableness in the bait loading operation.

Nor need we tarry in dealing with the alleged error of the court in refusing to instruct the jury to determine whether plaintiff was solely or contributorily negligent. There was no testimony that plaintiff acted other than with reasonable care. Counsel's only basis for his requests was that plaintiff had himself to blame for finding himself working where and as defendant had ordered. The district court aptly cited Ballwanz v. Isthmian Lines, Inc., 319 F.2d 457, 462 (4th Cir.1963), for the proposition that a worker is not "obligated to protest against the method of operation which he had been instructed to follow or to devise a safer method, nor was he obligated to call for additional or different equipment."

What gives us pause is the charge of alleged irreconcilable inconsistency in the two verdicts. In considering this issue, we first must determine whether we are dealing with two general verdicts or a general verdict and answers to interrogatories under Fed.R.Civ.P. Rule 49(b). 1 If the latter applies, we must scrutinize the negligence and seaworthiness findings for irreconcilable inconsistency. Gallick v. Baltimore & Ohio R. Co., 372 U.S. 108, 83 S.Ct. 659, 9 L.Ed.2d 618 (1963); Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 82 S.Ct. 780, 7 L.Ed.2d 798 (1962). If we are dealing with general verdicts, we do not have the compulsion of a procedural rule to determine such inconsistency.

What the court did was to submit to the jury a "Verdict Sheet" asking the two questions noted at the outset of this opinion, each question embracing both the existence of fault (whether negligence or unseaworthiness) and causality. These were followed by three other questions, asking for a figure for damages, prejudgment interest, and interest rate. The jury said "yes" to the negligence question, "no" to unseaworthiness, "$85,000" for damages, and "no" to prejudgment interest, leaving blank any response on interest rate. The court then issued an order for judgment for the plaintiff "in accordance with the verdict dated July 22, 1983". There was no other verdict document than the "Verdict Sheet" we have described.

We would be reluctant to interpret Rule 49(b) as applicable. First, there is no "general verdict" even if the jury's response qualify as answers to "interrogatories upon one or more issues of fact". Second, the first and second questions and answers are in such comprehensive and conclusory terms as to constitute essentially general verdicts on the two counts of the complaint in all respects but damages. 2 Third, and perhaps most conclusively, in this circuit we follow what we perceive to be the majority rule that "[u]nder Rule 49(b), objections to the inconsistency of verdicts must be made before the jury is discharged or by motion to resubmit to the jury." Fernandez v. Chardon, 681 F.2d 42, 58 (1st Cir.1982) (footnotes and citations omitted). See also 5A Moore's Federal Practice p 49.04, at 49-55 (1983). But see 9 C. Wright and A. Miller, Federal Practice and Procedure Sec. 2513, at 527 (1971).

We therefore address the question: absent a rule, do irreconcilably inconsistent jury verdicts in civil cases mandate the granting of a new trial? The law has long been that inconsistency in criminal verdicts on separate charges against one defendant is not a ground for setting them aside. As Justice Holmes wrote, "[c]onsistency in the verdict is not necessary." Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356 (1932). That Dunn is as strong as ever is clear from Harris v. Rivera, 454 U.S. 339, 102 S.Ct. 460, 70 L.Ed.2d 530 (1981). Applicability of this principle to civil jury verdicts is perhaps less categorically established. 9 C. Wright and A. Miller, Federal Practice and Procedure Sec. 2510, at 525 n. 12 (1971). But a number of considerations point to the same tolerance for inconsistency.

In Parker v. Gordon, 178 F.2d 888 (1st Cir.1949), we dealt with the issue of inconsistent verdicts on two counts in a civil case, so interpreting them that we found no facial inconsistency. In that case Chief Judge Magruder wrote that, "we have no...

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