Reviea v. Marine Drilling Co.

• Decision Date: 31 October 1990
• Docket Number: No. 13-89-407-CV,13-89-407-CV
• Citation: 800 S.W.2d 252
• Parties: Robert REVIEA, Appellant, v. MARINE DRILLING COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 252

800 S.W.2d 252

Robert REVIEA, Appellant, v. MARINE DRILLING COMPANY, Appellee.

No. 13-89-407-CV.

Court of Appeals of Texas Corpus Christi.

Oct. 31, 1990.

Rehearings Overruled Nov. 29

and Dec. 13, 1990.

Mark G. Cypert, G.P. Hardy, Hardy, Milutin & Johns, Houston, for appellant.

Ralph F. Meyer, C. Andrew Waters, Royston, Razor, Vickery & Williams, Corpus Christi, for appellee.

Before KENNEDY, SEERDEN and KEYS, JJ.

OPINION

KENNEDY, Justice.

Appeal is taken from the jury trial of a maritime personal injury suit brought under the Jones Act and general maritime law. Based upon the jury's verdict, the trial court entered a take nothing judgment in favor of appellee Marine Drilling Company. Appellant Robert Reviea asserts five points of error. We affirm the judgment.

Reviea brought suit against his employer, Marine Drilling Company, alleging that he was injured on its drilling rig and that his injury was caused by either the negligence of Marine Drilling or the unseaworthiness of its vessel. The jury failed to find Marine Drilling negligent and failed to find its vessel unseaworthy. By his first two points of error, Reviea challenges the legal and factual sufficiency of the evidence supporting the jury's verdict.

At trial, Reviea testified that while he was working on a rotary table, he slipped and fell off the edge, injuring his knee. The rotary table stands approximately two to three inches above the drilling floor. Reviea claimed that the rotary table was covered with slippery fluids and that Marine Drilling's failure (1) to provide a pad on the rotary table and (2) to provide other devices to aid in traction, made the vessel unseaworthy and established Marine Drilling negligent.

When reviewing a point of error complaining that a jury finding is against the great weight and preponderance of the evidence, an appellate court must examine the record to determine if there is some evidence to support the finding and, if so, that the finding is either so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust or that the great preponderance of the evidence supports its nonexistence. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex.1985); Traylor v. Goulding, 497 S.W.2d 944, 945 (Tex.1973); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). This standard of review not only applies to a jury's finding but also applies to a jury's failure to find. See Ames v. Ames, 776 S.W.2d 154, 158 (Tex.1989), cert. denied, 494 U.S. 1080, 110 S.Ct. 1809, 108 L.Ed.2d 939 (1990); Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 651 (Tex.1988). Thus, an appellate court may not reverse simply because it concludes that the evidence preponderates toward an affirmative jury finding. Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex.1988). We may reverse only if the great weight of the evidence supports an affirmative finding. Id.

Jones Act Negligence. Under the Jones Act, a seaman may bring a negligence action against his employer. See 46 U.S.C. § 688 (1982). The standard of liability under the Jones Act is established through the Federal Employers' Liability Act (45 U.S.C. §§ 51-60 (1986)) ("FELA"). Ferguson v. Moore McCormack Lines, Inc., 352 U.S. 521, 523, 77 S.Ct. 457, 458, 1 L.Ed.2d 511 (1957). Recovery is allowed once the seaman establishes that he has been injured as the result of his employer's negligence. Boeing Co. v. Shipman, 411 F.2d 365, 370 (5th Cir.1969). However, the Jones Act imposes a higher standard of care upon the employer; thus, the seaman has the burden to prove only the employer's slight negligence. Miles v. Melrose, 882 F.2d 976, 984 (5th Cir.1989), cert. denied, 494 U.S. 1066, 110 S.Ct. 1783, 108 L.Ed.2d 785 (1990); Rogers v. Eagle Offshore Drilling Serv., Inc., 764 F.2d 300, 304-05 (5th Cir.1985); Allen v. Seacoast Prod., Inc., 623 F.2d 355, 361 (5th Cir.1980). ¹

In the present case, Reviea alleged that Marine Drilling was negligent in two respects: first, failing to provide a rotary pad on the rotary table and, second, failing to provide other devices to aid in traction. At trial, Reviea presented the testimony of three safety experts. Essentially, each testified that the use of a rotary pad would decrease the chances of slipping while working on the rotary table. One testified that he was not sure whether or not the absence of a pad was a deficiency, while another testified that the absence of a pad constitutes negligence. However, the latter expert also testified that his own company's safety manual does not require a pad on the rotary table. Frankie Wilbourn, a roughneck on the rig, testified that rotary pads are intended to prevent slips. Yet, Bill Hathcock, the rig's tool pusher, testified that rotary pads were not required on these rigs. In its case-in-chief, Marine Drilling presented the testimony of an expert who stated that sixty to sixty-five percent of the rigs have rotary pads, but, just as Hathcock, he testified that the pads are not required.

Regarding Marine Drilling's alleged failure to provide other traction devices, the evidence showed that "cocoa mats" were available for an employee's use. Henderson testified that cocoa mats can be placed on the rotary table to assist the employee's footing. He further testified that cocoa mats were available for Reviea's use on the rig, and the decision whether or not to use them is made by the employee.

After carefully reviewing the record, we are mindful that we may not reverse simply because we may conclude that the evidence preponderates toward an affirmative answer. See Herbert, 754 S.W.2d at 144. We conclude that the jury's failure to find negligence was not so against the overwhelming weight and preponderance of the evidence as to be clearly wrong or manifestly unjust.

The Warranty of Seaworthiness. A vessel owner must provide seamen with a "seaworthy" vessel on which to work. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549, 80 S.Ct. 926, 932, 4 L.Ed.2d 941 (1960). Seaworthiness within the context of personal injury litigation refers to a vessel owner's nondelegable duty to provide a ship which is reasonably fit for its intended use. Id. at 550, 80 S.Ct. at 932; Miles, 882 F.2d at 981. A shipowner's negligence is not required for a seaman to recover under an unseaworthiness claim because the claim is not based on fault. Mitchell, 362 U.S. at 548, 80 S.Ct. at 932; Mahnich v. Southern S.S. Co., 321 U.S. 96, 100, 64 S.Ct. 455, 458, 88 L.Ed. 561 (1944); Miles, 882 F.2d at 981. Seaworthiness is a warranty that the vessel owner owes to the seaman. Schill, The Unsolvable Puzzle of Maritime Personal Injury Litigation: One False Move and You're Out, 24 Hous.L.Rev. 635, 644 (1987).

From the evidence previously discussed, the jury was free to find that the rig was reasonably safe, suitable, and fit for its intended purpose. ² Again, after reviewing the record, we find that the jury's finding is not so contrary to the overwhelming weight and preponderance as to be clearly wrong or manifestly unjust.

Having failed on his factual sufficiency arguments, it is self-evident that Reviea also fails on his legal sufficiency arguments, namely, that Marine Drilling's negligence and the vessel's unseaworthiness were established "as a matter of law." Points one and two are overruled.

By his third point of error, Reviea argues that the trial court erred both in failing to strike the entire jury panel when a venireman commented about excessive insurance rates and in failing to grant a new trial on this same ground. The relevant portion of the voir dire examination follows Defense: All right, sir. Anything about that experience [pumping oil and gas wells] that would lead you to think you might be impartial [sic] or biased in a case like this?

Juror: Well, I think everybody has to watch out for their own safety, especially nowadays, since insurance is outrageous because of safety requirements and--

Defense: All right, sir.

Juror: Feel like everybody is probably trying to do the best they can to save money--

Defense: All right.

Juror: --on insurance because of accidents, it jacks their rates up.

Defense: All right, sir. Thank you.

Plaintiff's Counsel: I'd like to approach the bench.

The purpose of voir dire is to seat a fair and impartial jury. Babcock v. Northwest Memorial Hospital, 767 S.W.2d 705, 709 (Tex.1989). Historically, Texas courts have held that it is improper for a jury to be informed of whether or not a party is protected by insurance. See Godfrey, Civil Voir Dire in Texas: Winning the Appeal Based on Bias or Prejudice, 31 S.Tex.L.J. 409, 416-20 (1990) [hereinafter Voir Dire ]. However, not every mention of insurance requires the setting aside of a jury's verdict. St. Louis S.W. Ry. v. Gregory, 387 S.W.2d 27, 33 (Tex.1965); see also Dennis v. Hulse, 362 S.W.2d 308, 309 (Tex.1962).

Crucial to our analysis is our recognition that this is not a situation where counsel has elicited information about insurance or has commented during voir dire about insurance. In some cases, harm has been presumed when counsel asked questions regarding the insurance industry or insurance rates. See, e.g., Hemmenway v. Skibo, 498 S.W.2d 9 (Tex.Civ.App.--Beaumont 1973, writ ref'd n.r.e.); A.J. Miller Trucking Co. v. Wood, 474 S.W.2d 763, 764 (Tex.Civ.App.--Tyler 1971, writ ref'd n.r.e.); Johnson v. Reed, 464 S.W.2d 689 (Tex.Civ.App.--Dallas 1971, writ ref'd n.r.e.), cert. denied, 405 U.S. 981, 92 S.Ct. 1197, 31 L.Ed.2d 256 (1972); see generally Voir Dire at 417-18. On the contrary, in the present case, the improper comments about insurance rates were spontaneously made by a prospective juror.

In Dennis v. Hulse, 362 S.W.2d 308 (Tex.1965), the Court held that a party complaining of a witness' testimony, referring to a party's insurance coverage, must show that the trial court's failure to grant a mistrial probably caused the rendition of an...