Sanguinetti v. Moore Dry Dock Co.

• Decision Date: 13 March 1951
• Citation: 36 Cal.2d 812,228 P.2d 557
• Court: California Supreme Court
• Parties: SANGUINETTI v. MOORE DRY DOCK CO. S. F. 18232

Page 557

228 P.2d 557

36 Cal.2d 812

SANGUINETTI v. MOORE DRY DOCK CO.

S. F. 18232.

Supreme Court of California

March 13, 1951.

Rehearing Denied April 12, 1951.

Williamson & Wallace, Brobeck, Phleger & Harrison, Wallace, Garrison, Norton & Ray and Moses Lasky, all of San Francisco, for appellant.

Dion R. Holm, City Atty., Edmond P. Bergerot and George E. Baglin, Deputy City Attys., all of San Francisco, Jennings & Belcher, Betts, Ely & Loomis, all of Los Angeles, as amicus curiae on behalf of appellant.

Hoberg & Finger, Henry G. Sanford and John H. Finger, all of San Francisco, for respondent.

SCHAUER, Justice.

Defendant appeals from a judgment rendered against it in plaintiff's action, brought under the Jones Act (46 U.S.C.A. § 688) ¹, to recover for injuries suffered by him while employed as the operator of defendant's tugboat, the 'Moore No. 2.' We conclude that by reason of the misconduct of counsel in moving in the presence of the jury, at the close of plaintiff's evidence, to amend the complaint by increasing the amount prayed for as damages, which motion was subsequently granted by the trial court, and the fact thereof brought to the attention of the jury, the judgment must be reversed.

The tugboat, 45 10 in length and 12 9 wide, was used to tow other craft, to place barges alongside hulls under repair at defendant's shipyards in the Oakland Estuary, and to go where needed around San Francisco Bay. When the tug was not in use, plaintiff did rigging work in the yard. He testified that his 40-hour work week was divided into approximately 24 hours as master of the tugboat and 16 hours as rigger; his hourly rate of pay was greater as tugboat operator than as rigger. His orders came from the rigging department. Plaintiff sometimes handled the tug alone and at other times was assisted by a deckhand.

On May 2, 1947, plaintiff, pursuant to orders, took the tugboat from defendant's Oakland yard to Pier 18 in San Francisco, picked up a 66 derrick barge loaded with scrap steel, and towed the barge back to the Oakland yard where the steel was unloaded. The barge was then to be docked at a pier a short distance away. Plaintiff testified that while the tug was in motion during the docking operations, it became necessary, because of a faulty clutch on the tug, for him to jump back and forth from the tug to the barge. In so doing he lost his balance and his left leg was pinned between the tug and the barge as they swung together, and was badly crushed.

Defendant's first contention on appeal is that plaintiff was not a seaman entitled to sue under the Jones Act, but was rather a harbor worker whose exclusive remedy is under the Longshoremen's and Harbor Workers' Compensation Act (44 Stat. 1424, ch. 509, 33 U.S.C.A. §§ 901, 905). That Act provides in section 902, however, that '(3) The term 'employee' does not include a master or member of a crew of any vessel * * *,' and in section 903 that '* * * No compensation shall be payable in respect of the disability or death-of (1) A master or member of a crew of any vessel * * *.'

Defendant's counsel in his opening statement declared that plaintiff 'was the operator in charge of the tug, and he was in law what would be called a 'master', although in connection with tugs, it is normally called an operator * * *.' At the time plaintiff was injured he was actively engaged as master in navigating the tug and was 'naturally and primarily on board to aid in her navigation' (South Chicago Coal & Dock Co. v. Bassett (1939), 309 U.S. 251, 260, 60 S.Ct. 544, 84 L.Ed. 732). It thus appears that, as plaintiff asserts, under the holding of the case just cited and of Warner v. Goltra (1934), 293 U.S. 155, 159, 55 S.Ct. 46, 79 L.Ed. 254, and Norton v. Warner Co. (1944), 321 U.S. 565, 571-572, 64 S.Ct. 747, 88 L.Ed. 931, he is as master excluded from the coverage of the Workers' Compensation Act, and is entitled to maintain this action. Moore Dry Dock Co. v. Pillsbury (1938), 9 Cir., 100 F.2d 245, relied upon by defendant, concerned a deckhand who was drowned while engaged in repairing a tugboat while she was tied up at the dock, and is not decisive here.

Defendant next contends that plaintiff's counsel committed misconduct in moving, in the presence of the jury, to amend the prayer of the complaint to ask $75,000 instead of $50,000 in damages, and that such misconduct when followed by the action of the court, after argument without the jury's presence, in granting the motion, resulted in such prejudice to defendant as to require reversal of the judgment.

The record discloses the following proceedings in the jury's presence at the close of plaintiff's case:

'Mr. Hoberg (Counsel for Plaintiff): * * * Plaintiff will rest but asks leave to amend the complaint to increase the amount in the prayer from $50,000 to $75,000 incurred and to be incurred on the evidence that has been submitted here before the Court and jury.

'Mr, Ray (Counsel for Defendant): I desire to argue that matter in chambers and reserve the right at this time to move for a mis-trial upon the grounds of plaintiff's misconduct in connection with the motion.

'The Court: Well, I will hear that matter out of the presence of the jury.'

The jurors were then dismissed, and the following proceedings had:

'The Court: Now, then, in regard to this motion to amend the complaint, have you any authority there, or do you want to let it go over until tomorrow?

'Mr. Hoberg: There is no question about this, your Honor. I have done it a hundred times.

'The Court: It is done every day here, but I don't know whether in raising the amount whether that is a matter that should have gone in outside of the presence of the jury.'

After argument the court granted plaintiff's motion, defendant thereupon renewed his motion for a mistrial on the ground of misconduct of plaintiff's counsel in presenting the motion in the jury's presence, and the court denied defendant's motion. Defendant then presented its evidence, and the case went to the jury with an instruction, among others, that 'The damages must be reasonable and cannot be in excess of the amount alleged in the complaint, namely $75,000.' The jury retired from the courtroom, and thirty-five minutes later returned with a verdict for plaintiff in the sum of $75,000.

No California decision directly in point has been cited or discovered by our research. It is, of course, the rule in this State that the jury may be instructed as to the maximum verdict which may be returned, as was done here. (Lahti v. McMenamin (1928), 204 Cal. 415, 421, 268 P. 644; see also McNulty v. Southern Pacific Co. (1950), 96 Cal.App.2d 841, 216 P.2d 534.) In Buswell v. City & County of San Francisco (1948), 89 Cal.App.2d 123, 133, 200 P.2d 115, in discussing defendant's point that a permitted amendment to increase the prayer had not been 'formally made to the complaint,' the court mentions that 'At the end of the trial and in the absence of the jury, plaintiffs moved to amend the complaint to conform to the proof by increasing the prayer * * * Defendant vigorously objected. The court granted the motion.' (Italics added.) The point before us in the instant case was thus not involved in Buswell. In Duffey v. General Petroleum Corp. (1949), 93 Cal.App.2d 757, 758-759, 209 P.2d 986, it is stated that 'At the beginning of the trial, on October 19, 1948, plaintiffs' counsel moved to amend the complaint by increasing the amount of the alleged damage to $4,000, and the motion was granted. Defendant interposed an objection to the amendment, but did not ask for a continuance of the trial by reason thereof. The jury returned a verdict for $4,000.' (Italics added.) No discussion of the point here at issue appears in the opinion.

In several New York cases the impropriety of moving, in the jury's presence, for permission to increase the amount sought in the prayer of the complaint is discussed and the practice condemned. Thus, in Kenney in South Shore Natural Gas & Fuel Co. (1908), 126 App.Div. 236, 110 N.Y.S. 503, 504-505, a personal injury action, 'After the selection of the jury, and before any evidence had been taken, plaintiff moved to amend her complaint by changing the amount asked in her prayer for relief from $10,000 to $25,000. Defendant's counsel duly objected, and the court reserved its decision thereon. The evidence on both sides had been practically completed before the court passed upon the motion, and allowed the amendment asked for.' The verdict was for $20,000. On appeal the judgment was reversed, with the following observations by the court: 'It seems that the court on the trial of an action may, in the proper exercise of its discretion, permit plaintiff to amend his complaint by increasing the amount of damages demanded. (Citations.) * * * (But) we do not think such an amendment can properly be permitted * * * (without) explaining why application for the privilege had not previously been made * * * (and) some reason showing the propriety of the amendment * * *.'

'* * * the record now before us * * * discloses no reason for granting the motion, unless the action of the court thereon was influenced by the evidence produced on the trial as to the extent and nature of plaintiff's injuries. * * * (nor) is there * * * in the statement of the court on granting the motion, a suggestion of a reason why such an amendment was asked for at that time, nor why it was then granted * * *. As the motion was made in the presence of the jury, and the court held its disposition thereof until after the evidence was concluded, it is at least probable that the jury may have been to some extent influenced in arriving at the unusually large verdict awarded by the, perhaps unwarranted, assumption that the court, after hearing the evidence, concluded that plaintiff had shown herself entitled to larger damages than she had at first demanded in her complaint, and that the court's favorable action on the motion was due to...