Monomoy Fisheries, Inc. v. Bruno & Stillman Yacht Co., Inc., 79-1433

• Decision Date: 30 July 1980
• Docket Number: No. 79-1433,79-1433
• Parties: MONOMOY FISHERIES, INC., Plaintiff-Appellee, v. BRUNO & STILLMAN YACHT CO., INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 1034

625 F.2d 1034

MONOMOY FISHERIES, INC., Plaintiff-Appellee, v. BRUNO & STILLMAN YACHT CO., INC., Defendant-Appellant.

No. 79-1433.

United States Court of Appeals, First Circuit.

Submitted May 12, 1980.

Decided July 30, 1980.

Robert S. Potters, Grover Henry Nix, III, and Nix & Wendell, Boston, Mass., P. C., on brief for defendant-appellant.

Daniel H. Kelleher, Boston, Mass., on brief, for plaintiff-appellee.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

This is an action for breach of warranty in which the defendant appeals from an award of damages to the plaintiff for defects in a forty-two-foot lobster boat called the "Yellowbird." The plaintiff, Monomoy Fisheries, a Massachusetts corporation engaged in lobster fishing, contracted with the defendant, Bruno and Stillman Yacht Company, for the construction of the Yellowbird at the latter's facility in Newington, New Hampshire. Shortly after accepting delivery of the vessel on July 14, 1975, the plaintiff discovered numerous defects in her construction, including damage to the balsa core hull, leakage in the hydraulic system and stuffing boxes, faulty electrical connections, and defects in the bilge pumps, steering system, support beams and propeller shaft. Following a two-day trial, a jury assessed damages of $25,000 for breach of implied warranty of merchantability. ¹ The defendant now appeals, citing as its sole assignment of error the court's failure to charge, as requested, on the plaintiff's duty to mitigate damages. We affirm.

The threshold question is whether the defendant has properly preserved this issue for appeal. The defendant submitted five requests for instructions, four relating generally to the issue of mitigation, and the fifth suggesting that the amount of hull insurance on the vessel was relevant to any assessment of her value. ² The court included none of these requests in its charge to the jury. Immediately following the charge, the defendant voiced an objection which was subsequently withdrawn only to the court's omission of the requested instruction concerning hull insurance; no reference of any kind was made to the issue of mitigation. In these circumstances, the plaintiff contends that, under Rule 51 of the Federal Rules of Civil Procedure, ³ the defendant has waived its right to advance this issue on appeal.

The defendant responds by acknowledging its noncompliance with Rule 51 but urging that it be overlooked. Citing to Stewart v. Ford Motor Co., 553 F.2d 130, 139-41 (D.C.Cir.1977), and Mays v. Dealers Transit, Inc., 441 F.2d 1344, 1351-52 (7th Cir. 1971), it contends that an objection following the charge was unnecessary because its position on the issue of mitigation had previously been clearly made known to the court and it was evident that a further objection would have been unavailing. We find this argument unpersuasive, for whatever merit this proffered exception to Rule 51 might have generally, see Bouley v. Continental Co., 454 F.2d 85, 88 (1st Cir. 1972), it is plainly inapplicable where a party has done nothing more than submit requests for instructions. By itself, the mere act of tendering requests provides no assurance that the court will consider and fully understand them particularly where, as here, the record is silent as to whether the court ever explicitly rejected the requested instructions, or even discussed them with counsel, prior to the charge. More importantly, the court might inadvertently omit a request that it had intended to include in its charge, or might erroneously believe that its instructions adequately incorporated the substance thereof. See, e. g., United States v. Byrd, 542 F.2d 1026, 1028 (8th Cir. 1976) (per curiam) (Rule 30, Fed.R.Crim.P.); Cone v. Beneficial Standard Life Ins. Co., 388 F.2d 456, 461 (8th Cir. 1968); Dunn v. St. Louis-San Francisco Ry., 370 F.2d 681, 684 (10th Cir. 1966) (court cannot be informed "to what extent a request has not been given" until after charge). Contrary to defendant's view, therefore, a subsequent objection in these circumstances cannot be considered futile or superfluous. We conclude that the mere submission of requests for particular instructions is generally insufficient to preserve an issue for appeal. E. g., Fulton v. Chicago, Rock Island & Pacific R.R., 481 F.2d 326, 338-39 (8th Cir.), cert. denied, 414 U.S. 1040, 94 S.Ct. 540, 38 L.Ed.2d 330 (1973); Greinke v. Yellow Cab Co., 250 F.2d 865, 866-67 (7th Cir. 1958); see e. g., Kennett v. Delta Air Lines, Inc., 560 F.2d 456, 460, 461 (1st Cir. 1977).

As a result, we have only to decide whether the failure to charge on the duty to mitigate damages was "plain error," e. g., Morris v. Travisono, 528 F.2d 856, 859 (1st Cir. 1976) an exception to Rule 51 that is to be applied "sparingly and only in exceptional cases or under peculiar circumstances to prevent a clear miscarriage of justice." Nimrod v. Sylvester, 369 F.2d 870, 873 (1st Cir. 1966). In an attempt to demonstrate that the plaintiff enhanced the damages resulting from the breach of...