Molitor v. American President Lines, Ltd., 19086.

• Decision Date: 30 March 1965
• Docket Number: No. 19086.,19086.
• Citation: 343 F.2d 217
• Parties: Robert MOLITOR, Appellant, v. AMERICAN PRESIDENT LINES, LTD., Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

343 F.2d 217 (1965)

Robert MOLITOR, Appellant, v. AMERICAN PRESIDENT LINES, LTD., Appellee.

No. 19086.

United States Court of Appeals Ninth Circuit.

March 30, 1965.

Jack H. Werchick, San Francisco, Cal., for appellant.

Graydon Staring, Lillick, Geary, Wheat, Adams & Charles, San Francisco, Cal., for appellee.

Before MADDEN, Judge of the Court of Claims, and HAMLEY and KOELSCH, Circuit Judges.

HAMLEY, Circuit Judge:

Robert Molitor brought this action against American President Lines to recover damages for personal injuries sustained while employed aboard the S.S. PRESIDENT HOOVER. Molitor, an unlicensed junior engineer, alleged that he was injured while threading pipe in the machine shop located in the engine room of that vessel. Asserting that the proximate cause of such injuries was the negligence attributable to defendant, and to the unseaworthiness of the S.S. PRESIDENT HOOVER, Molitor sought damages in the sum of $150,000.

The cause was tried without a jury and judgment was entered for defendant dismissing the action. Appealing to this court, Molitor questions the trial court holdings that defendant was not negligent, that the vessel was not unseaworthy, and that no negligence or unseaworthiness was the proximate cause of any injury to the seaman.

About February 25, 1960, a certain line of two-inch pipe was fabricated and installed in the vessel's engine room. The vessel's first assistant engineer assigned Molitor to thread certain pieces of pipe for this purpose. Molitor did so, using a pipe vise affixed to a work bench in the vessel's machine shop. He also used a pipe die of appropriate size, together with the ratchet handle provided for it. Molitor testified that while lifting the handle it struck him in the side of his thigh causing the injuries of which he complains.

Molitor begins his argument with the assertion that the district court "* * * made no findings of fact," stating that the "findings" which appear in the transcript were, upon the request of the court, prepared by counsel for the prevailing party. For this reason and because, in Molitor's view, the trial court terminated the trial prematurely precluding the production of relevant evidence, he urges us to "* * * weigh the evidence as introduced at trial as though this were an appeal from a summary judgment." Molitor then discusses the evidence bearing upon the issues of unseaworthiness and negligence as if these matters were before this court for de novo determination.

The asserted premature termination of the trial will be discussed at a later point in this opinion. If this appeal involved review of a summary judgment we would have no function to "weigh the evidence," since under Rule 56(c), Federal Rules of Civil Procedure, no summary judgment may be entered if there is a genuine issue as to any material fact. Contrary to Molitor's assertion, the trial court made complete findings of fact. It is immaterial that counsel for the prevailing party, at the request of the court, prepared the findings.

The only question concerning the facts of this case which this court may appropriately consider is whether any of the essential findings of fact are clearly erroneous. McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 99 L.Ed. 20. We shall consider Molitor's arguments concerning the facts of the case having in view this limited scope of our reviewing function. We shall also bear in mind that in determining whether any of the findings are clearly erroneous, due weight must be accorded to the trial court's appraisal of the credibility of the witnesses. Nuelsen v. Sorensen, 9 Cir., 293 F.2d 454, 460.

Molitor argues that uncontroverted testimony establishes that the space in which he was required to perform this work was insufficient, and that the court should therefore have found that, for this reason, defendant was negligent or the vessel was unseaworthy.

Molitor testified that in using a pipe die with a ratchet handle to thread a pipe it is easier to push down on the handle than to lift up. But because of a pile of boxes and the presence of a bulkhead, Molitor stated, he could not use the extension of the ratchet handle when bearing down. The result was, according to his testimony, that he accomplished most of the threading by lifting up on the die handle. Elijah J. Bosserman, a marine surveyor, testified that the area in which the vise and other equipment was located "* * * is reasonably restricted to work in." He expressed the opinion that it would be quite difficult to thread any length of pipe over three or four feet in length due to the restriction of the machinist's vise in the immediate area.

Other testimony given by Molitor in a deposition which was read into the record put this area problem in a somewhat different light. Molitor there indicated that he could have accomplished the entire threading by pushing down on the ratchet and then pushing the ratchet around the pipe after each push, instead of going to the other side of the pipe and pulling up. He further testified, in his deposition, that pushing down eventually makes the shoulders tired, "* * * so you shift it and you could get more leverage when you pull up." Molitor also indicated in his deposition that the reason an extension of the ratchet handle could not be used for more than a notch at a time in the space provided, was because of the proximity of the deck to the vise located on a pedestal bench.

Considering this and other testimony bearing upon the space issue we hold that the implied finding of the district court that there was no negligence or unseaworthiness in this regard is not clearly erroneous.

Molitor also contends that uncontroverted testimony establishes that the work area in question was defective in respects other than size. Specifically, he asserts that a platform about the work bench was improperly designed. Molitor here relies upon the testimony of Bosserman to the effect that a wooden platform on the deck of the work room was defective because it ended at the end of the bench. Bosserman thought that, for this reason, the area was unsafe for this job because, with the roll or pitch of the vessel, a workman standing on the platform would probably lose his balance "* * * by twisting his foot from the edge of this wooden platform."

Molitor sustained injuries on February 25, 1960. Bosserman did not inspect the machine shop of the S.S. PRESIDENT HOOVER until August or September, 1963. Appellee states that there was no evidence that this was a condition existing in February, 1960, and that no testimony tended to connect such a platform with Molitor's...