Nimnicht v. Dick Evans, Inc., 72-3125 Summary Calendar.

• Citation: 477 F.2d 133
• Decision Date: 19 March 1973
• Docket Number: No. 72-3125 Summary Calendar.,72-3125 Summary Calendar.
• Parties: Darrell G. NIMNICHT, Plaintiff-Appellant, v. DICK EVANS, INC., et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

477 F.2d 133 (1973)

Darrell G. NIMNICHT, Plaintiff-Appellant, v. DICK EVANS, INC., et al., Defendants-Appellees.

No. 72-3125 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

March 19, 1973.

Darryl J. Tschirn, C. T. Williams, Jr., New Orleans, La., for plaintiff-appellant.

John O. Charrier, Jr., New Orleans, La., for defendants-appellees.

Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

PER CURIAM:

This is a seaman's action for damages for personal injuries sustained while working on a barge off the coast of Louisiana.

Darrell G. Nimnicht was employed by Dick Evans, Inc. on Lay Barge No. 23 owned by J. Ray McDermott and Company, Inc. On February 13, 1970, Nimnicht was assigned to remove a small hand-operated hydraulic pump from a gondola cart on a total saturation diving system aboard Barge No. 23. The diving system was owned by Evans. This gondola cart was used to move a diving bell into position so that the divers could be transferred from the system to the bell and vice-versa. While in the process of removing this pump, Nimnicht sustained an injury to his back.

Alleging the unseaworthiness of the barge and negligence of his employer, Nimnicht filed suit under the Jones Act and General Maritime Law against Evans, McDermott, and McDermott's insurer, Travelers Insurance Company. The case was submitted to the jury on interrogatories.

On the special interrogatories submitted to it, the jury found that Nimnicht was a seaman but that his employer was not negligent and that the barge was not unseaworthy. Nevertheless, in response to another interrogatory pertaining to compensatory damages, the jury entered an award of $13,500. In addition, the jury made certain findings regarding maintenance and cure which are not on appeal here. The relevant interrogatories answered by the jury are as follows:

1. Was plaintiff, Darrell G. Nimnicht, injured aboard McDermott Barge #23 on February 13, 1970?

A. Yes.

2. Was plaintiff a seaman or a member of the crew of McDermott #23?

A. Yes.

3. Was the barge McDermott #23 unseaworthy?

A. No.

5. Did Dick Evans own, operate, control or have an operational interest in the barge in question?

A. Yes.

6. Was the defendant, Dick Evans, Inc., through its employees, negligent?

A. No.

9. Was the plaintiff, Darrell Nimnicht, negligent?

A. No.

11. Without any reduction for negligence on the part of the plaintiff, if any, what amount do you find will fairly and adequately compensate plainfiff for the damages he sustained?

A. $13,500.

After receiving the verdict responding to the interrogatories, the trial court pointed out to the jury that finding no negligence or unseaworthiness on the part of appellees there was no party which could be held liable to pay the damage award. Then, the Court, acting on the authority of Rule 49(b) F.R.Civ. P., entered judgment for appellees. Appellant moved for a new trial on the ground that the inconsistent verdicts evinced confusion on the part of the jury. Motion denied. He appeals. We affirm.

There was no objection to the form of the interrogatories as propounded to the jury. It, therefore, is too late to complain on appeal, Wyoming Construction Company v. Western Casualty & Surety Company, 10 Cir., 1960, 275 F.2d 97, cert. denied 362 U.S. 976, 80 S. Ct. 1061, 4 L.Ed.2d 1011, Halprin v. Mora, 3 Cir., 1956, 231 F.2d 197.

This leaves only the question of whether the trial court proceeded correctly in entering judgment for the appellees, notwithstanding the response to Interrogatory 11. For the answer to this we look to Rule 49(b), F.R.Civ.P., which provides:

"The court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict. The court shall give such explanation or instruction as may be necessary to enable the jury both to make answers to the interrogatories and to render a general verdict, and the court shall direct the jury both to

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