Roth v. Bird

• Decision Date: 26 December 1956
• Docket Number: No. 16177.,16177.
• Parties: Arthur ROTH, as Administrator of the Estates of Alfredo Escoto, Albert Beadle and James Dean, Deceased, Appellant, v. David C. BIRD, Bessie B. Cox, and John G. Thompson, as Administrators of the Estate of Sid Cox, Deceased, et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

239 F.2d 257 (1956)

Arthur ROTH, as Administrator of the Estates of Alfredo Escoto, Albert Beadle and James Dean, Deceased, Appellant, v. David C. BIRD, Bessie B. Cox, and John G. Thompson, as Administrators of the Estate of Sid Cox, Deceased, et al., Appellees.

No. 16177.

United States Court of Appeals Fifth Circuit.

December 26, 1956.

Arthur Roth, Miami, Fla., for appellant.

Douglas D. Batchelor, David W. Dyer, Smathers, Thompson & Dyer, Miami, Fla., for appellees.

Before RIVES, TUTTLE and JONES, Circuit Judges.

RIVES, Circuit Judge.

This appeal is taken from a judgment entered upon a directed verdict in favor of appellees in a consolidated negligence suit brought under the Jones Act¹ to recover for the death of three seamen, as a result of alleged negligent loading causing unseaworthiness of the M/V Wingate. The vessel was presumably lost at sea about December 22, 1949, while carrying a cargo of raw coffee on a voyage from Matanzas, Cuba to New Orleans, Louisiana. The errors most seriously urged, and hereafter considered seriatim, relate to the court's action (1) in refusing appellant's pre-trial motion for the production of the hull policy insuring the vessel; (2) in refusing to qualify appellant's witness, Richard Irving, to testify as an expert on the issue of whether negligent loading of the vessel proximately caused the loss; and (3) in directing a verdict for appellees for insufficiency of appellant's proof to make out a prima facie case of Jones Act liability.

We consider first the jurisdictional issue raised by appellees' motion to dismiss the appeal for failure to file the notice of appeal within the 30 days allowable under Rule 73(a), Federal Rules of Civil Procedure, 28 U.S.C.A., from the date of the court's entry of its orders denying a new trial. The record shows that appellant first filed motions for leave to appeal in forma pauperis on March 20, 1956, within 30 days after entry of the district court's orders denying such motions for new trial on February 24, 1956; and that orders denying such leave were filed by the court on April 19, such denial being predicated upon appellee's objection that the decedents were aliens with adequate funds whose representative was required to pay the costs of an appeal and could not claim pauper status within the meaning of 28 U.S. C.A. § 1915. Appellant promptly filed notices of appeal on April 19, the same date of entry of the court's orders denying the motions for leave to appeal in forma pauperis, but almost two months after entry of the orders denying their motions for a new trial; and thereafter proceeded timely with the appeal.

In Des Isles v. Evans, 5 Cir., 225 F.2d 235, 236, we held that the filing of a petition for leave to appeal in forma pauperis adequately met the requirements of Rule 73(a) as to the taking of an appeal. It would follow that the subsequent denial of leave to appeal in forma pauperis denied the privilege of not prepaying fees and costs, 28 U.S.C.A. § 1915, but that appellant still had the right promptly to proceed with his appeal as an ordinary appeal without such privilege. Differently construed, the rule would amount to a trap and a pitfall so deprecated in Des Isles v. Evans, supra. Tesciona v. United States, 9 Cir., 141 F.2d 811, 812, is distinguishable because of the failure there promptly to proceed with the appeal.

Appellant in brief insists that² the court improperly denied the motion to produce the hull insurance policy and reports pertaining to payments received thereunder on the theory that to require their production might permit injection of the prejudicial issue of insurance at the trial. We agree. Ordinarily the grant or denial of such motion is within the sound discretion of the trial court, subject to review only for abuse. See Carter v. Baltimore & O. R. Co., 80 U.S. App.D.C. 257, 152 F.2d 129. However, the last sentence of Rule 26(b), F.R. C.P., expressly provides: "It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence." The determinative pre-trial inquiry, therefore, is not whether a possibility of trial prejudice from requiring production of a document exists, an eventuality which it must be presumed the trial court will be alert to avoid, but whether its production will aid in the discovery of truth by revealing admissible evidence. The record reveals no other more likely and authoritative source of the information sought as to any previous hull survey of the vessel, and possible admission by appellees that the vessel sank, than might have been learned from an inspection of the hull policy and its connected reports, in spite of the court's unamplified, pre-trial comment that "there is a better way of getting it."³ Under such circumstances, it seems to us that the district court, in denying the discovery sought, exercised its discretion improvidently and in reliance upon a wrong principle; and that, in so doing, it committed a fully reviewable error of law. See Commercial Credit Corp. v. Pepper, 5 Cir., 187 F.2d 71, 75; Whiteman v. Pitrie, 5 Cir., 220 F.2d 914, 919; Miller v. Tennessee Gas Transmission Company, 5 Cir., 220 F.2d 434, 436.

The error most seriously urged, however, and that which caused the court's direction of the verdict, was its refusal to permit the witness, Richard Irving, to testify as an expert witness concerning unseaworthiness of the Wingate caused by its negligent loading. Irving testified that he was a ship's master, holding "an unlimited master's license" from the United States Coast Guard, which permitted him to serve as master aboard any American vessel in any waters; that he had first gone to sea in 1929 as a cadet, and the next year entered the New York State School Ship from which he received his third mate's license in 1933; that he afterwards served as bosun, quartermaster, and able-bodied seaman on various vessels up until 1939, when he passed his Coast Guard examination and became a second mate; that he passed his examination for first mate in 1943, and his duties as a vessel's first officer included general supervision of all deck operations, as well as responsibility for proper loading of the vessel's cargo; that he received his master's license in 1947, which was renewed in San Francisco in August, 1953; that, while a cargo loading plan is generally presented by those ashore for the master's approval, and the first officer is initially responsible for safe loading and proper stowage, the master of the vessel has final responsibility to see that the loading plan suggested provides for proper stowage and distribution of weight, since these factors strongly affect the stability of a vessel; that on the larger vessels, upon which he had usually sailed, the general rule was to allocate not more than "two-thirds of the weight to the lower hold and one-third * `tweendecks", in order to avoid the possibility of the ship foundering. After objection by appellees' counsel that such testimony was too general, and a warning from the court that his testimony should relate more specifically to loading practice on vessels of the Wingate type, Irving further testified that the principles mentioned were applicable generally to the loading of all cargo vessels, including smaller cargo vessels, with only one hold and no " 'tweendecks", like the Wingate. Irving conceded, however, that he had never served as master aboard a small yacht converted to carry cargo, like the Wingate, though he stated his basic familiarity with their loading problems and that "there is no separation of ships with regard to the stability factor"; that, in fact, "there is a greater precaution necessary on those type of vessels." Upon the court's further intimation that it was still not satisfied with Irving's competency to testify as an expert on the loading of the Wingate, counsel for appellant requested the...