Miley v. Delta Marine Drilling Company, 71-3067.
| Decision Date | 28 February 1973 |
| Docket Number | No. 71-3067.,71-3067. |
| Parties | Burns MILEY, Jr., Plaintiff-Appellant, v. DELTA MARINE DRILLING COMPANY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Robert S. Cooper, Jr., Baton Rouge, La., for plaintiff-appellant.
W. K. Christovich, New Orleans, La. for Delta.
Before GEWIN, COLEMAN and INGRAHAM, Circuit Judges.
As Amended on Denial of Rehearing and Rehearing En Banc February 28, 1973.
Burns Miley, a member of the crew of the DELTA MARINE 8, brought suit for an injury sustained while performing the task of on-loading one of the mooring chains of said vessel. After a deliberation of nine hours the jury returned a verdict in Mr. Miley's favor, finding that his injury was compensable under the provisions of the Jones Act. The jury awarded Mr. Miley $51,675, which sum was diminished by the amount of negligence attributed to Mr. Miley, to-wit: 65%.
Mr. Miley asserts numerous allegations of error in asking this court to remand for a new trial. For the reasons set forth in the following discussion, the judgment of the district court is affirmed.
The DELTA MARINE 8 was originally a Navy Landing Ship Tank (LST). After the second World War it was converted into an offshore drilling tender and is presently owned by the appellee, Delta Marine Drilling Company. As a part of the conversion process the original bow which consisted of two clamshell doors was replaced by a pointed section containing four chain bins. The additional chains provided added stability while mooring offshore.
On June 18, 1969, the United States Coast Guard ordered the appellee to drydock the vessel for interim inspection. In order to comply it was necessary to lighten her draught so she could enter the drydock. This was accomplished by removing the anchor chains from their bins and stacking them in two piles on the bank.
At this time appellee decided to assemble a new crew to facilitate both the necessary repairs and also to remain aboard the vessel when it returned to location as a drilling tender. Mr. Miley, who once previously had been in the appellee's employ, was enticed from another position he was then holding and returned to work for the appellee as a roustabout aboard the DELTA MARINE 8.
Upon completion of the required repairs, orders were issued to have the anchor chains brought aboard ship and stored in their respective bins. The DELTA MARINE 8 was equipped with self-tiering lockers, but due to the encrusted condition of the chains additional aid was necessary to store them. In order to accomplish this on-loading procedure, Mr. Miley and another roustabout were ordered to station themselves in a chain bin to manually "tier" the chains as they were brought in. Mr. Miley suspended himself by one hand and two feet from the toe-holds in the bulkhead while using a hook held with his free hand to tug at the chain as it descended. Mr. Miley engaged a link of the chain with his hook and was exerting a vigorous tug at the very moment that the chain turned, causing the hook to disengage. This sudden movement caught Mr. Miley offguard, resulting in his falling four to six feet to the bottom of the locker.
The fall inflamed a preexisting arthritic condition for which Mr. Miley had received a 70% veteran's disability rating. The resultant incapacity of Mr. Miley is the basis of the present action.
Mr. Miley alleges that the trial court made numerous highly prejudicial remarks towards his counsel in the presence of the jury. For the sake of brevity, we need only discuss the comment which Mr. Miley asserts clearly constitutes an over-reaching of judicial propriety. Our attention is called to the following dialogue wherein Mr. Miley's counsel was questioning a witness concerning the purpose of an anchor winch:
Mr. Miley's counsel had previously covered this question with the same witness and received an emphatic reply. Mr. Miley's suggestion that reference to a five year old idiot was an obviously inferential castigation of his counsel's ability is without merit.
The judge presiding over a trial is empowered to keep a case moving within the bounds of reason. Continued questioning on matters covered in detail or on irrelevant matters may require a judicial admonition of counsel. Peckham v. Family Loan Company, 262 F.2d 422 (5th Cir., 1959), cert. den. 361 U.S. 824, 80 S.Ct. 70, 4 L.Ed.2d 68.
Counsel for Mr. Miley made no objection to these remarks at the time they were made and now places reliance on the plain-error rule as a basis for this present attack since w...
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...deposition testimony into evidence so that the exclusion of the expert's deposition was harmless error); Miley v. Delta Marine Drilling Co., 473 F.2d 856, 858 (5th Cir.1973)(appellant was allowed two experts at trial to testify to the same issue such that the exclusion of a third was harmle......
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...admonish counsel for unnecessary and improper questions or for failing to comply with the rules of the court. Miley v. Delta Marine Drilling Co., 473 F.2d 856, 857 (5th Cir. 1973), Cert. denied, 414 U.S. 871, 94 S.Ct. 93, 38 L.Ed.2d 89 (1974); United States v. Glaziou, 402 F.2d 8, 17 (2d Ci......
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