Smith v. Union Oil Co.

• Decision Date: 04 April 1966
• Citation: 241 Cal.App.2d 338,50 Cal.Rptr. 499
• Court: California Court of Appeals Court of Appeals
• Parties: Frances Elaine SMITH, Plaintiff and Appellant, v. UNION OIL COMPANY et al., Defendants and Respondents. Civ. 28427.

Page 499

50 Cal.Rptr. 499

241 Cal.App.2d 338

Frances Elaine SMITH, Plaintiff and Appellant, v. UNION OIL COMPANY et al., Defendants and Respondents.

Civ. 28427.

District Court of Appeal, Second District Division 4, California.

April 4, 1966.

Rehearing Denied April 20, 1966.

Hearing Denied June 1, 1966.

Magana & Olney, Mitchell Levy, Horace C. Brown and Ellis J. Horvitz, Los Angeles, for plaintiff and appellant.

Lillick, Geary, McHose & Roethke, Lawrence D. Bradley, Jr., Thomas H. Werdel, Jr., and Anthony Liebig, Los Angeles, for defendants and respondents.

KINGSLEY, Justice.

Plaintiff is the widow of, and the administratrix of the estate of, Eldon W. Smith, a deep-sea diver who died as a result of an attack of the 'bends' (caisson disease) suffered during a dive from an offshore oil drilling ship named the Submarex. The fatal dive took place on April 4, 1957, and Smith died the following day. The Submarex was owned, staffed and operated by defendant Louis N. Waterfall, Inc. Waterfall's employee, defendant Alex P. Metson, was the ship's captain. The Submarex was chartered to the CUSS group ¹ to conduct offshore drilling operations, and the CUSS representative on board, Ed McLeod (an employee of Union Oil), was in charge of the drilling operation. Defendant was hired by McLeod, and his fatal dive was made in furtherance of the drilling operation.

Plaintiff commenced this action for recovery under the Jones Act (46 U.S.C. § 688), the doctrine of unseaworthiness, and general maritime negligence. The trial court granted a nonsuit as to the cause of action based on the doctrine of unseaworthiness. ² The remaining causes of action were tried before a jury and, at the request of the parties, the following questions were submitted to the jury for special verdict, and the following verdict was rendered:

'1. Was Eldon Smith an independent contractor? No.

'2. If Eldon Smith was not an independent contractor, of which defendant or defendants was he an employee? CUSS group.

'3. Was Eldon Smith a seaman-member of the crew of the SUBMAREX? Yes.

'4. Was any one of the defendants negligent? Yes, if so, which one or ones? Both.

'If your answer to number 4 was 'no', you will not answer questions 5, 6, 7,8 or 9 but return a verdict in favor of defendants.

'5. If your answer to question 4 was 'yes', was such negligence also a proximate cause of Eldon Smith's death? Yes.

'6. Was Eldon Smith or Charles Rennpage ³ negligent? No.

'7. Expressed in terms of percentage, to what extent did Eldon Smith's and/or Mr. Rennapage's negligence contribute to Eldon Smith's death?

'8. If you find that the Jones Act does not apply, then was the cause or causes of Eldon Smith's death such a known hazard or risk, that Eldon Smith assumed such hazard or risk?

'9. If you find in favor of plaintiff, what is the amount of damages suffered by Mr. Smith's estate? $165,970.00.'

Thereafter, the trial court granted motions for judgment notwithstanding the verdict and, in the alternative, for a new trial. This appeal followed.

Eldon Smith was a professional deep-seadiver, 32 years old, and, at the time of his death he was 'a first-class diver,' in excellent health. The Submarex was specially rigged to perform undersea core drilling operations for the purpose of obtaining geological information in connection with California offshore oil leases. The drilling operation was programmed by the CUSS group. When a location was selected for exploratory drilling, the Submarex would drop anchor and start drilling. The drilling equipment was often damaged by natural causes, which necessitated repairing and relocating the drilling mechanism. Placing the drilling mechanism in its proper position is called stabbing the hole, and it was this job that decedent was employed to perform.

The members of the crew were changed weekly, except for Ed McLeod, the CUSS group representative, who was in charge of programming and supervising the drilling operation. The crew was under the maritime command of Captain Metson.

The bends is a disease which results from the change in external pressure to which the diver is exposed in rising from deep water to the surface. In order to avoid the bends, divers stay below the water on deep dives for carefully measured periods of time, called 'optimum time' (not to be equated with maximum time), and their ascent is interrupted by periodic stops at designated intervals for specific lengths of time. Even with care, a risk of the bends remains. The most successful treatment of the bends is to put a diver in a recompression chamber. A less desirable alternative is to take the diver back into the water. There was testimony from a medical expert that a diver with the bends should be placed in a recompression chamber within twelve minutes maximum after the onset of the attack; and there was further testimony that all deep sea dives should be made with a recompression chamber available.

On April 3rd, Ed McLeod telephoned to the shore to the Associated Divers, with which Smith was connected, for a diver to complete an operation theretofore started by one Frank Donahue. He spoke to Charles Isbell. Isbell told him that the divers preferred to bring their own equipment on board; but McLeod told him that there was already one set of diver's gear on board and asked that another set not be brought. McLeod's statement was testified to have been: 'One, the sea was rough. The second, we could only load or unload equipment at Santa Monica, not Redondo Beach and thirdly, that it would clutter up the decks no end to have two complete sets of diving equipment aboard.' On this basis, Smith was picked up by his tender, Charles Rennpage, at about 3:00 a.m. on April 4th; and although, according to Rennpage's testimony, they had always previously taken along their own equipment, they did not do so on this occasion. As a result, when Smith's attack occurred, there was neither a recompression chamber nor a second set of diving gear that another diver could have used to take Smith back into the water.

Prior to the dive, McLeod explained to Smith the nature, extent and type of work to be performed. Smith made his dive and stayed down for thirty-eight minutes in order to complete stabbing the hole. According to some of this testimony, this was eight minutes longer than the optimum time for the dive. Smith made several stops on his way up.

The evidence is conflicting on whether or not Smith took a sufficient number of stops for a sufficient length of time. Decedent emitted a sharp scream on the way up. Captain Metson and Rennpage agreed to pull Smith up and, when Smith was removed from his suit, he was unconscious, bluish, and there was slight bleeding from the nose. Captain Metson phoned to shore for an ambulance to be called to the pier. Although a helicopter service was available, none was called, but Smith was loaded into a launch for transportation to shore. After he reached shore, there was a wait of twenty minutes before the ambulance arrived. Smith was then taken, by ambulance, to the Long Beach Naval Shipyard, where he was placed in a decompression chamber. It was over an hour from the time Smith was brought on deck on the Submarex until he was placed in the decompression chamber in Long Beach. He died the next day, from the bends.

There was a considerable amount of conflicting testimony on the degree of control Smith had over his own activities. This testimony will be discussed more fully below.

The parties agree that federal standards determine whether or not Smith was covered by the Jones Act. (Garrett v. Moore-McCormack Co. (1942) 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239.) And, under that act, the employer's slightest negligence imposes liability, neither contributory negligence nor assumption of risk being defenses (Rogers v. Missouri Pacific Railroad Co. (1957) 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493), although there can be no recovery if the employee's negligence was the sole cause of his injury. (Willis v. Pennsylvania R. Co. (2d Cir.1941) 122 F.2d 248; Ouzts v. A. P. Ward & Son, Inc. (D.C.Fla.1956) 146 F.Supp. 733.)

Plaintiff contends that, in applying these rules of liability, the trial court usurped the fact-finding function of the jury in violation of the rules governing the respective powers and duties of court and jury in Jones Act cases, as established by federal law. Defendants contend that, as a matter of law, Smith was an independent contractor, guilty of contributory negligence and subject to the defense of assumption of risk and that, therefore, the trial court acted properly in denying recovery.

It follows that the issues before us are: (1) whether or not the trial court erred in granting a judgment notwithstanding the verdict based on its finding that Smith was an independent contractor, as a matter of law, and (2) whether or not the court abused its discretion in granting a new trial on the ground that the findings of employment, negligence, and no contributory negligence were based on insufficient evidence and against the law.

I

We turn first to examine the propriety of the order granting judgment notwithstanding the verdict. That order, if correct, determines the lawsuit and we would not have occasion to consider the order granting a new trial. However, in order to sustain the judgment it must appear either (1) that Smith was, in law, an independent contractor and also that the jury could not, on any theory, have found other than that defendants were not negligent or that, if they were, that Smith was chargeable with either contributory negligence or assumption of risk; or (2) that, if Smith was not an independent contractor as a matter of law, the jury could not have found for him on the issue of negligence.

At least since 1957, it is firmly settled that, in cases arising under either the Jones Act or under the Federal Employers Liability Act, it is for the jury to determine whether or not the elements of...