Socony-Vacuum Oil Co. v. Lambert

• Decision Date: 15 May 1944
• Docket Number: No. 5617.,5617.
• Citation: 180 S.W.2d 456
• Parties: SOCONY-VACUUM OIL CO., Inc., v. LAMBERT.
• Court: Texas Court of Appeals

180 S.W.2d 456

SOCONY-VACUUM OIL CO., Inc., v. LAMBERT.

No. 5617.

Court of Civil Appeals of Texas. Amarillo.

May 15, 1944.

Appeal from District Court, Jefferson County; W. S. Nichols, Judge.

Action by Claude Lambert against Socony-Vacuum Oil Company for personal injuries and for maintenance and cure. Judgment for plaintiff, and defendant appeals.

Judgment reformed so as to deny recovery of damages for personal injuries, and recovery for maintenance and cure affirmed.

Lipscomb & Lipscomb, of Beaumont, and John W. Knox, of New York City, for appellant.

Adams, Hart & Daughtry, of Beaumont, for appellee.

STOKES, Justice.

This is an action for damages instituted by the appellee, Claude Lambert, against the appellant, Socony-Vacuum Oil Company, Incorporated, in which the appellee sought to recover damages for personal injuries received by him while employed by appellant as a seaman on the steamship Rochester, an oil tanker owned by appellant and plying between the ports of New York and Beaumont. About midday on January 30, 1942, off the Virginia coast, an explosion of some kind occurred and the ship was damaged to such an extent that it sank. The appellee had been asleep in the forecastle and a few seconds before the explosion occurred he awoke and approached the door, intending to go to the lavatory located in another part of the ship. As he placed his hand on the doorknob, the explosion occurred and he was injured to such an extent that he immediately became unconscious and remained in that state until some time afterwards when he realized he was in the bow of a lifeboat. No question is raised as to the seriousness of his injuries. He was placed in a hospital where he remained for seventeen days and his condition required medical attention from that time and he had by no means recovered at the time of the trial. He alleged that the steamship Rochester was torpedoed "presumably by a German submarine"; that The Rochester was not armed with defensive guns or weapons by which it could defend itself against submarine attack; and that in failing to arm the vessel the appellant was guilty of negligence which proximately caused his injuries.

The case was submitted to a jury upon special issues, in answer to which the jury found that the steamship Rochester was sunk as a result of torpedo fire by an enemy submarine, as a proximate result of which appellee received his injuries; that the vessel was not armed; that the failure of appellant to arm the ship was negligence, which negligence was a proximate cause of the personal injuries suffered by the appellee; that $18,312.50 would reasonably compensate appellee for the injuries received by him and that to provide reasonable medical care and maintenance from the date he received the injury until he probably would recover would require $2,700. The court rendered judgment in favor of the appellee for the amounts, respectively, found by the jury and, its motion for a new trial being overruled, appellant perfected an appeal to the Court of Civil Appeals for the Ninth Supreme Judicial District, at Beaumont. By an order equalizing the dockets of the Courts of Civil Appeals, the Supreme Court has transferred the case to this court and it is now before us for review.

Appellant presents and urges eight assignments of error, but in the view we take of the case it will not be necessary to discuss any of them except the fourth, which is to the effect that the court erred in submitting to the jury Special Issue No. 2, calling for a finding as to whether the steamship Rochester was sunk as a result of torpedo fire from an enemy submarine, because there was no proof in the record to support such finding. It is obvious that if this assignment of error is well taken, appellee was not entitled to recover anything from the appellant as damages and, in our opinion, the judgment is lacking in support in the evidence on this vital question. The only witness who testified as to the cause of the sinking of the steamship Rochester was the appellee. His testimony was that he had no recollection of the manner in which he left or was taken from the vessel after the explosion occurred. He said he was in his room and had been asleep but that he awoke, slipped on his shoes, intending to enter the hall and go to the lavatory; that when he reached the door of his room something happened and he knew nothing from that time until he awoke in the bow of a lifeboat, at which time he regained semiconsciousness. He said the last thing he remembered was when he placed his hand on the doorknob to open the door and that "then is when the torpedo struck, or whatever it was, and I know no more." Upon being asked what happened to the ship, he said it was torpedoed and sunk. No other witness testified concerning the sinking of the ship, and it will be noted that even the appellee himself did not testify that it was torpedoed by an enemy submarine. We take judicial notice that on the date the ship was sunk, this country was at war with Germany and Japan, and it is a matter of common knowledge, of which we also take judicial notice, that enemy submarines were then infesting the waters of the American Atlantic coast, but that this ship was attacked and sunk by an enemy submarine was a vital matter of fact which it was necessary to establish by competent testimony, and the burden of proving it rested upon the appellee. It is well known that ships were being sunk in almost all the waters of the seven seas by mines, both floating and submerged. It is also known that ships were being sunk as a result of internal explosions, and since the negligence charged against appellant by appellee was the failure to equip the steamship Rochester with armaments by which it could have defended itself against submarines, and that if it had done so the catastrophe would not have occurred, it was essential that he prove by competent testimony that his injuries resulted from such failure. No one would claim that guns or any sort of defensive weapons would have protected the ship against floating or submerged mines, and obviously they would not have protected it against an internal explosion.

Appellant strongly contests the allegations of negligence and contends that for a number of reasons it was not guilty of negligence in failing to arm the vessel. Among such contentions are: That it did not have the legal right to arm the steamship Rochester; that no armaments were available; that it was not customary to arm such vessels; and that the United States Shipping Board and other governmental agencies, including the Navy, had assumed both the responsibility and the authority to arm merchant vessels. Conceding, for the sake of the discussion, however, that appellant was guilty of negligence in failing to arm the vessel, as found by the jury, there is no evidence by which it may reasonably be inferred that such negligence was the proximate cause of the explosion and resulting injury to the appellee. The testimony is wholly destitute of any proof that there was any causal connection whatever between the appellant's failure to arm the vessel and the injuries received by the appellee. No witness testified to the presence of an enemy submarine anywhere in the vicinity, or even in the region where the explosion occurred or that the missile which attacked or exploded and caused the ship to sink came from an enemy submarine or any other source that could have been forestalled by deck guns or any other armament on the steamship Rochester. The rule is thoroughly established in this State, as well as in other jurisdictions in this country, that this missing link in the evidence can not be supplied by presumption. It is a matter that must be proved by competent testimony, and the burden of proving it rests squarely upon the shoulders of the plaintiff in the case. Texas & P. R. Co. v. Shoemaker, 98 Tex. 451, 84 S.W. 1049; Missouri, K. & T. R. Co. v. Greenwood, 40 Tex.Civ.App. 252, 89 S.W. 810; Houston Lighting & Power Co. of 1905 v. Barnes, Tex.Civ.App., 152 S.W. 722; Houston East & West...