Riddle v. Exxon Transp. Co., 75-2298

• Decision Date: 27 September 1977
• Docket Number: No. 75-2298,75-2298
• Citation: 563 F.2d 1103
• Parties: Baysal D. RIDDLE, Appellant, v. EXXON TRANSPORTATION COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1103

563 F.2d 1103

Baysal D. RIDDLE, Appellant, v. EXXON TRANSPORTATION COMPANY, Appellee.

No. 75-2298.

United States Court of Appeals Fourth Circuit.

Argued June 6, 1977.

Decided Sept. 27, 1977.

Sidney H. Kelsey, Norfolk, Va. (Kelsey & Kelsey, Norfolk, Va., on brief), for appellant.

Guilford D. Ware, Norfolk, Va. (Crenshaw, Ware & Johnson, Norfolk, Va., on brief), for appellee.

Before RUSSELL, WIDENER and HALL, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

The plaintiff, a welder employed by the Norfolk Shipbuilding and Drydock Corporation (hereinafter referred to as the Shipyard) was injured in a fire and gas explosion on the EXXON BANGOR while that vessel was undergoing repairs performed by the Shipyard under a contract with the vessel's owner, the defendant Exxon Transportation Company. He sued the shipowner for damages under the terms of the Longshoremen's and Harbor Workers' Compensation Act. ¹ Following a jury verdict in favor of the defendant shipowner, the plaintiff has appealed. We affirm.

I.

The Shipyard and the predecessor of the defendant Exxon entered into a contract for ship repairs to the EXXON BANGOR, along with certain other vessels. Under the contract, the vessel was delivered to the Shipyard, which assumed full responsibility for and control of the "detailed manner and method of doing" the repairs called for thereunder. The right of the shipowner was limited to approval of "the results obtained" by the Shipyard in making the repairs. Before the vessel was accepted by the Shipyard, it was "gas-freed" by the shipowner. The Shipyard verified the fact that the vessel was "gas-free" at time of delivery by having a Certificated Chemist, selected and paid by it, to test the vessel thoroughly and to certify that it was "gas-free." The responsibility for keeping the vessel "gas-free" thereafter rested upon the Shipyard. In discharging this responsibility, the Shipyard issued various instructions to its employees. Among these was a direction that "hot" work could only be performed in an area where there was a current certificate of the Chemist that such area was "gas-free." Any "manipulation of valves or closure equipment tending to alter conditions in pipe lines, tank or compartments subject to gas accumulation, unless specifically approved in the certificate, (would) void(s) the certificate" and "(r)eexamination of spaces so effected (would be) mandatory before hot work (could) begin." There is also a provision in such instructions that "(n)o spray painting shall be done in areas where hot work is in progress." All of these instructions include requirements, which, according to the plaintiff, were well known and understood as reasonable safety measures in the trade.

About 8:00 a. m. on the day of the accident the plaintiff began welding (which is hot work) on the outside of the vessel near an open hole about 14 inches in diameter, which extended through the outside plate into the sea chest leading into the pump room. Painters were engaged in work on the outside at the same time but, when they approached within about 40 feet of the place where plaintiff was working, they discontinued their work and passed over to a point about 40 feet beyond the hole leading to the pump room. In the meantime, the Shipyard Chemist had at the beginning of work that morning certified the pump room as free from gas and safe for welding. A short time later employees of the Shipyard began work manipulating the valves in the pump room. The Shipyard had also placed an exhaust fan on the outside of the pump room with plastic tubing down into the room and it was "sucking air out of the pump room." By early afternoon the plaintiff had completed his outside welding and went aboard to the pump room to engage in welding there. He observed a machinist "standing around some valves up on the forward bulkhead of the pump room" and it looked to him as if he was "packing 'em." ² And the riggers, engaged in the removal of the valves, realized that the plaintiff was doing "hot" work. The gas-free certificate for the room plainly stated it related only to conditions in the room at the time it was issued (i. e. 7:30 a. m.) and that, if any work on the valves connected with the piping was conducted thereafter, the certificate was void and, before any "hot" work was to be permitted in the room, a new gas test must be carried out and a new certificate secured. No new test, however, was made. Shortly after the plaintiff began his welding in the pump room, the explosion occurred and he was injured. At trial the evidence indicated one of two sources for the gas in the room which was ignited, causing the explosion. One source could have been the fumes of the painting drawn in by the suction of the exhaust fan; the other was gas released through the manipulation of the valves.

At the conclusion of the evidence, the District Court submitted the cause to the jury. A verdict was returned in favor of the defendant. From the judgment entered on such verdict, the plaintiff has appealed assigning error in the denial of a mistrial for misconduct of defendant's counsel during trial and error in a number of jury instructions given by the District Court.

II.

The first claim of error in the trial raised by the plaintiff relates to a ruling made by the Court during the defendant's cross-examination of the plaintiff and to the failure of the District Court to grant a mistrial at that point. Counsel for the defendant inquired if the Shipyard had not paid his medical bills. An objection was immediately made by plaintiff's counsel to the question and the plaintiff did not answer. At the request of plaintiff's counsel, a recess was taken during which such counsel moved for a mistrial, contending that the defendant's question represented an impermissible reference to collateral benefits, thereby prejudicing irreparably plaintiff's case. The District Court denied the motion and recalling the jury, instructed them specifically:

"THE COURT: Ladies and gentlemen of the jury, just immediately prior to the recess some question was asked of the witness concerning doctors' or medical expenses, as to whether he had paid them or whether or not some source had paid them, his employer. You will disregard that completely. That's not a part of this case. That's not to be considered by you. Any medical expenses which he has incurred he is entitled to recover in this action, if you decide that he is entitled to recover. So, you'll disregard any statement or any question or any comment made in that regard."

While the rule has been recently criticized, ³ the present rule is that evidence of the receipt of collateral benefits by a plaintiff in a negligence case is not admissible. This was expressly held in Tipton v. Socony Mobile Oil Co. (1963) 375 U.S. 34, 84 S.Ct. 1, 11 L.Ed.2d 4, reh. den. 375 U.S. 936, 84 S.Ct. 328, 11 L.Ed.2d 268; and Eichel v. New York Central R. Co. (1963) 375 U.S. 253, 84 S.Ct. 316, 11 L.Ed.2d 307. Nothing in the new Federal Rules of Evidence authorizes departure from the rule so declared. But neither in Tipton nor in Eichel was the court called on to consider whether such error may be cured by an appropriate instruction, which is the issue here. ⁴ In Tipton for instance, the District Court had ruled that the introduction into evidence of collateral benefits received by the plaintiff was proper and the issue before the Supreme Court was limited to the correctness of that ruling of admissibility. In Eichel the District Court had rejected such evidence but the Court of Appeals found such ruling erroneous. Again, the issue before the Supreme Court was merely the admissibility of that evidence. But in Tipton, the Court, while finding the evidence inadmissible, appeared to recognize that in a proper case an appropriate instruction could cure the error. Thus the Court in that case was careful to add that the Court "did not frame a cautionary instruction." It would seem proper to deduce from this statement of the Court that if such a "cautionary instruction" had been given, a different result could well have followed.

The most nearly analogous situation to an improper reference during trial to collateral benefits is that which arises when the fact that the defendant is protected by liability insurance has been improperly injected into the case at trial. Indeed, in Eichel, the Supreme Court recognized that the two situations were similar and justified similar treatment. Thus, it said:

"It has long been recognized that evidence showing that the defendant is insured creates a substantial likelihood of misuse. Similarly, we must recognize that the petitioner's receipt of collateral social insurance benefits involves a substantial likelihood of prejudicial impact." ⁵

And the authorities seem to do just this, to treat the two situations as governed by like rules.

It seems to be settled in either instance, whether the challenged evidence relates to collateral benefits or to insurance, a cautionary instruction in a proper case will cure any error in the introduction of such an issue at trial. The rule, as to when a cautionary instruction will cure such an error appears to be that "in the absence of anything indicating that the verdict returned was adversely affected by such statements or remarks, or that counsel made persistent and studied attempts to bring the objectionable matter before the jury, prompt action in striking improper references to the defendant's insurance from the record coupled with instructions admonishing the jury to disregard such matter, sufficiently protects the defendant's right." ⁶ Whether, under the circumstances of the particular case the error has been cured by a cautionary instruction is normally "a matter for the proper exercise of the sound discretion of the trial court," ⁷ and "only in the event of a manifest abuse of judicial discretion should the appellate court interfere," ⁸ with the exercise of that...