Rivera v. Herndon Marine Products, Inc.
| Citation | 895 S.W.2d 430 |
| Decision Date | 02 February 1995 |
| Docket Number | No. 13-92-676-CV,13-92-676-CV |
| Parties | Roy RIVERA, Appellant, v. HERNDON MARINE PRODUCTS, INC. and the M/V "Gulf King 42", Appellees. |
| Court | Texas Court of Appeals |
Warren L. Eddington, Michael Maldonado, Law Office of Warren L. Eddington, P.C., Corpus Christi, Elizabeth A. Davis, Law Offices of Warren Eddington, Houston, for appellant.
Daniel D. Pipitone, G. Don Schauer, Kimberley Hall Seger, Pipitone, Schauer & Simank, Corpus Christi, for appellees.
Before SEERDEN, C.J., and DORSEY and YANEZ, JJ.
This is an appeal from a take-nothing judgment in a jury trial. In the action below Roy Rivera sued Herndon Marine Products, Inc. for injuries Rivera sustained while working as captain of the Gulf King 42, one of Herndon Marine's shrimp boats. Rivera pleaded causes of action involving negligence under the Jones Act and unseaworthiness under general maritime law. The trial court refused to submit Rivera's seaworthiness claim, and the jury returned findings against Rivera on the issue of negligence. Based on this verdict, the trial court entered the take-nothing judgment. Rivera's appeal raises four points of error. We reverse and remand.
In his first point, Rivera complains that the trial court erred by failing to submit a jury question on seaworthiness. In the alternative, Rivera's second point of error argues that the court should have granted his motion for a directed verdict on the issue of seaworthiness. In his third point of error, Rivera challenges the sufficiency of the evidence underlying the jury's finding that absolved Herndon Marine of negligence. Rivera's final point contends that the trial court erred by admitting certain evidence.
In his first two points of error, Rivera complains that the trial court erred in its approach to the issue of seaworthiness. Rivera's first point argues that the court should have submitted a jury question on seaworthiness because the issue was pleaded and supported by evidence adduced at trial. Rivera's second point raises the alternative argument that the trial court should have found the Gulf King 42 unseaworthy as a matter of law. Because the remedy for the error Rivera complains of in his second point is rendition rather than remand, we address Rivera's second point first. See Lone Star Gas Co. v. Railroad Comm'n of Tex., 767 S.W.2d 709, 710 (Tex.1989).
Under a point of error questioning the denial of a motion for directed verdict, the appellant must show that the record contains evidence establishing the movant's position as a matter of law. Kershner v. State Bar of Tex., 879 S.W.2d 343, 346 (Tex.App.--Houston [14th Dist.] 1994, writ denied). Consequently, we affirm the trial court's ruling if the record contains more than a scintilla of evidence supporting the position contrary to the movant's position. Id.; see also TEX.R.CIV.P. 301.
Rivera contends that he conclusively proved the unseaworthy condition of the Gulf King 42. The record establishes that the shrimp boat was out in stormy mid-December weather when the accident that led to this suit occurred. According to unanimous testimony, the nets were lowered onto the deck to be untangled and cast. These nets were either kept on the deck or secured by hooks above the deck.
Further uncontradicted evidence shows that one of the hook-ended ropes used to bind the boat's nets swung across the deck and hit Rivera in the head. These hooks were ordinarily secured to a ring specifically provided to hold the hook and to prevent the hook from swinging.
After this point, however, the evidence is conflicting. The record contains two contradictory accounts of how the hook came unfastened from its ring.
In a written statement recorded a few months after the accident, Rivera explained that the hook was fastened to the netting but came loose in the storm. The rigman, Juan Solis, provided a different story. He admitted that he had forgotten to attach the hook to the ring and that this lapse was "just a foolish mistake." Solis confessed that he did not secure the hook because he was in a hurry to separate the nets and begin fishing.
Solis's testimony is some evidence that the injury to Rivera was caused by an individual act of negligence rather than by the unseaworthy condition of the Gulf King 42. Accordingly, we cannot sustain Rivera's second point of error.
In the alternative to his second point of error, Rivera contends that the testimony discussed above is at least sufficient to warrant a jury question on the issue of seaworthiness. In response, Herndon Marine argues that Rivera's failure to tender a requested question in substantially correct form waived any error in the trial court's decision not to submit this issue. We do not reach any assessment of whether the evidence supports submission of the issue until we determine that the alleged error was preserved.
The failure to submit a question is grounds for reversal only if submission has been requested in writing and tendered in substantially correct wording. TEX.R.CIV.P. 278. A question tendered in substantially correct wording must be correct "in substance and in the main" and "not affirmatively incorrect." Placencio v. Allied Indus. Int'l, Inc., 724 S.W.2d 20, 21 (Tex.1987).
Rivera requested the following question:
Do you find that the unseaworthiness, if any, which you may have found in response to Question No. 3, was a proximate cause of Roy Rivera's injuries?
(emphasis added). Rivera also provided accompanying instructions on unseaworthiness and causation.
Herndon Marine complains that Rivera's tender fails to include a question on the issue of seaworthiness separate from the issue of causation. According to Herndon Marine, the combination of these two questions assumes the truth of a contested material fact--the unseaworthiness of the vessel--and comments on the weight of the evidence. We disagree.
Issues of causation may be submitted along with other issues under a theory of recovery. In fact, the trial court should submit a cause of action by broad-form questions whenever feasible. TEX.R.CIV.P. 277; Texas Dept. of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex.1990). The requested question combined the issues of seaworthiness and causation. Although the question could have been worded more clearly, there was no error in the presentation of the relevant legal issues. In the context of the accompanying instructions, the tendered question was not worded in a manner that would have allowed the jury to make a finding that did not comport with the governing law. As a result, Rivera's request was not incorrect in substance or in the main.
Additionally, the emphasized portion of the tendered question would not create such confusion or ambiguity as to render the question affirmatively incorrect. The misnumbering of a question is not a substantive or affirmative error. Consequently, Rivera has not waived review on the merits of his first point of error. We must therefore consider whether the trial court erred by refusing to submit Rivera's seaworthiness issue.
The trial court may refuse a properly tendered jury question only if the issue was not pleaded or if no evidence was presented to justify submission of the issue. Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex.1992). Rivera pleaded unseaworthiness as a cause of action and contends that he adduced sufficient evidence of unseaworthiness to warrant the submission of a jury question.
As discussed above, the record contains Rivera's written statement. In this statement, Rivera suggests that the hook was fastened to the netting and came loose only as a result of the rough seas. This evidence indicates that the rings designed to secure the hooks might have been inadequate to perform their intended function during a storm.
In addition to this testimony, the record contains the testimony of the rigman. As we have already mentioned, Solis confessed to having inadvertently failed to attach the hook to the ring. Moreover, Solis himself characterized this error as "a foolish mistake."
Significantly, Solis further testified that each of the other crewmen similarly neglected to secure the hooks in their rings as they hurriedly unfurled the shrimp nets. This testimony raises the possibility that the crew might have been inadequate to man the boat in a storm or poorly trained in safe methods of performing their job.
Rivera brought his case under the Jones Act and under theories of recovery recognized in general maritime law. The Jones Act grants seamen rights against their employers for injuries caused by the employer's negligence. See 46 App.U.S.C. § 688. Maritime law also provides a cause of action for injuries resulting from defects or insufficiencies of a vessel, its crew, or its appurtenances that undermine the vessel's seaworthiness. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549, 80 S.Ct. 926, 932-33, 4 L.Ed.2d 941 (1960). This warranty of seaworthiness involves the owner's absolute duty to furnish a vessel, crew, and appurtenances reasonably fit for their intended use. Id.
Rivera argues that the rigman's failure to secure the hook created an unsafe...
To continue reading
Request your trial
-
King v. Huntress, Inc.
...breach of the warranty of seaworthiness “are separate theories of recovery that must be kept distinct,” Rivera v. Herndon Marine Products, Inc., 895 S.W.2d 430, 434 (Tex.Ct.App.1995), due to the fact that “unseaworthiness is a condition, and how that condition came into being—whether by neg......
-
King v. Huntress, Inc.
...breach of the warranty of seaworthiness "are separate theories of recovery that must be kept distinct," Rivera v. Herndon Marine Products, Inc., 895 S.W.2d 430, 434 (Tex. Ct. App. 1995), due to the fact that "unseaworthiness is a condition, and how that condition came into being—whether by ......
-
Long Island Owner's Ass'n, Inc. v. Davidson
...finding, we must affirm the trial court's submission of the issue and denial of appellant's motions. Dowling, 631 S.W.2d at 728; Rivera, 895 S.W.2d at 432; Strackbein, 671 S.W.2d at The jury was instructed to consider the conduct of LIOA and its predecessors, John Freeland and the Navigatio......
-
Rigdon Marine Corp. v. Roberts
...render it unfit for its intended use, or make the vessel an unsafe place to work. Rivera v. Herndon Marine Prods., Inc., 895 S.W.2d 430, 434 (Tex.App.-Corpus Christi 1995, writ denied). The warranty of seaworthiness is a species of liability without fault. Boudoin v. Lykes Bros. Steamship C......