Sunray Oil Corporation v. Allbritton, No. 13148.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtHUTCHESON, , and HOLMES, McCORD, BORAH, and RUSSELL, Circuit
Citation187 F.2d 475
PartiesSUNRAY OIL CORPORATION v. ALLBRITTON.
Docket NumberNo. 13148.
Decision Date15 February 1951

187 F.2d 475 (1951)

SUNRAY OIL CORPORATION
v.
ALLBRITTON.

No. 13148.

United States Court of Appeals Fifth Circuit.

February 15, 1951.


187 F.2d 476

C. E. Bryson, Ben H. Rice, III., Houston, Tex., Angus G. Wynne, Philip Brin, Longview, Tex., Edward Howell, Oklahoma City, Okl., Gene M. Woodfin, Houston, Tex., for appellant.

J. Edwin Smith, George E. Cire, Houston, Tex., for appellee.

Before HUTCHESON, Chief Judge, and HOLMES, McCORD, BORAH, and RUSSELL, Circuit Judges.

HUTCHESON, Chief Judge.

For a statement of the issues and pertinent facts in this case, we refer to the opinion of the trial court, which is reported in D.C., 88 F.Supp. 54. We agree with the lower court's holding: that, if Sunray retained control over the premises and the derrick, it was bound to exercise reasonable care to maintain the derrick in safe condition for use; and that there was substantial evidence to support its finding that Sunray did retain such control. We agree, too, with its holding: that there was substantial evidence to support the jury's findings, that Sunray failed to exercise such care and that such failure was the proximate cause of the collapse of the derrick and the injuries sustained by the appellee.

The crucial question as to liability on this appeal is whether the appellant retained control of the derrick at the time of its fall. Neither side requested an instruction to the jury for a special verdict on this particular point; the court gave none; and the jury made no finding thereon. There was a finding by the jury that the derrick was defective immediately prior to its collapse, and that its defective condition could have been discovered by appellant by the exercise of ordinary care, which it failed to do, and which failure was a proximate cause of the derrick's falling. There were also findings that, at the time of the collapse and immediately prior thereto, the contractor had, and the contractee did not have, control over the means and manner of performance of the work which was required of appellee.

The court below rejected appellant's contention that the jury's finding as to who had control over the means and manner of performing the work prevented it from being liable on the theory that it retained control of the derrick. The court held that such finding had reference only to the dispute as to whether Allbritton was employed by the appellant or the contractor; and the jury found that he was not employed by appellant. No special finding by the jury having been made or requested on the particular issue as to control of the derrick, the trial judge was empowered to make it under Rule 49(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. By failing to request such finding by the jury, each party waived the right to a trial thereof by jury. On this point, said Rule 49(a) further provides as follows: "As to an issue omitted without such demand the court may make a finding; or, if it fails to do so, it shall be deemed to have made a finding in accord with the judgment on the special verdict."

It is contended by the appellee that he was a business invitee under the derrick and on the premises of appellant; the latter admitted in its responsive pleading that appellee "was either an employee or an invitee of the defendant as alleged by plaintiff." It is obvious from this that admittedly Allbritton was either an employee

187 F.2d 477
or invitee of the appellant. The jury found that he was not an employee; the trial court found or is deemed to have found that he was an invitee. Allbritton was not required to work on the derrick; he himself did not use it; and his work in no way affected it. He was required to handle only tools as distinguished from machinery. At no time did he go upon the derrick, though he was required to be at a point which put him in danger of being hit by it if it fell. Other independent contractors were performing work for Sunray under the derrick at the time it fell, and the latter's superintendent at the same time was supervising the whole operation. The trial court's finding, that Sunray had not surrendered control of the derrick to appellee's employer, is supported by substantial evidence and should not be set aside as clearly erroneous. It appearing from the working arrangement that the derrick remained under the control of appellant, and the appellee being an invitee as aforesaid, it follows that appellant was under the legal duty to exercise ordinary care to keep the premises, including the derrick, in a reasonably safe condition for appellee's use

Finding no reversible error in the record, we, therefore, affirm the judgment, except as to the recovery of $13,084.70, which had been paid to Allbritton by the workmen's compensation insurance carrier, and which Allbritton had sought to recover on its behalf. Though it was the real party in interest, with the right to sue therefor, it was not a party to this suit, having failed and refused to prosecute it against appellant. Instead, it sought to recover without suing by agreeing with appellee that, if he would bring the suit, he could recover, and hold for it, all sums that it was entitled to recover against defendant by virtue of its subrogation rights under the laws of Texas. Appellee accordingly prayed that he recover and hold said sums as trustee, but this he could not do. He was not the trustee of an express trust in the sense of Rule 17(a), which provides that every action shall be brought in the name of the real party in interest but that the trustee of an express trust may sue in his own name without joining with him the party for whose benefit the action is brought. Moreover, it is now settled by the Texas law that the employee's right to recover against third persons is limited to damages in excess of the compensation paid to him.1

The judgment is, therefore, reformed by reducing it by the sum of $13,084.70, and, as reformed, is Affirmed.

Reformed and affirmed.

HOLMES and McCORD, Circuit Judges, dissenting.

HOLMES, Circuit Judge (dissenting).

The moderated verdict is manifestly excessive, in my opinion, and the judgment entered thereon should not be affirmed unless the excessive portion be fully remitted by the appellee. Heretofore it has been well settled in federal jurisprudence that general excessiveness in verdicts in actions for personal torts was a question for the trial courts, and that appellate courts lacked jurisdiction in such matters.1 The earliest of these cases, and the prototype of them all, is Parsons v. Bedford, 3 Pet. 433, 7 L.Ed. 732, wherein the appellant complained of the trial court's refusal to order the clerk to record the testimony, which might have established an error of the jury upon an issue of fact. The Supreme Court held the assignment immaterial for the reason that the Seventh Amendment

187 F.2d 478
prohibited its re-examination of such matters where the issues were tried by a jury. The decision of this constitutional question was not necessary to the disposition of the case, because under Section 22 of the Judiciary Act of 1789, no reversal upon writ of error was permissible in the Supreme Court for any error of fact. 1 Stat. 84, Chap. 20, Sec. 22, 2 Stat. Chap. 40, Sec. 2, p. 244, 18 Stat. Chap. 80, Sec. 1, p. 318, R.S., Sec. 1011, 36 Stat. Chap. 231, Sec. 291, p. 1167, 28 U.S.C. (1940 Ed.), Secs. 879 and 880. See revised 28 U.S.C.A. § 2105, and note preceding § 1

When writs of error were abolished and appeals substituted therefor, it was expressly provided that appeals from the district courts should be subject to the same rules, regulations, and restrictions, as were previously prescribed in law in cases of writs of error. Title 28 U.S.C. (1940 Ed.) 880. The Judiciary Act of September 24, 1789, was adopted nearly twenty-seven months before the Seventh Amendment became effective. The language of the statute forbidding reversals upon writs of error for any error in fact was without limitation or qualification, whereas the applicable language of the Seventh Amendment prohibits re-examination of any fact tried by a jury only otherwise "than according to the rules of the common law."

This statutory limitation on the power of federal appellate courts, except as modified by Rule 52, remained in effect until September 1, 1948, when it was repealed by the new Judicial Code. The reason for its repeal is immaterial, because the evident fact is that there was no intention on the part of Congress or the Revisors of the code to extend the scope of appellate judicial review beyond the limits prescribed by the Seventh Amendment. Consequently, it is plain that this Amendment is the only barrier to the present power of appellate federal courts, in cases of excessive verdicts, to call upon the plaintiff to enter a remittitur or suffer a reversal of the judgment; and whether it is any such barrier depends upon the rules of the common law on December 15, 1791. Therefore, a reexamination of the foundation upon which rests the classic dictum in Parsons v. Bedford is now appropriate.

That the trial court has jurisdiction to call on the plaintiff for a remittitur, without curtailing the function of the jury, is conceded in both the majority and dissenting opinions in Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603. See also the scholarly opinions in Slocum v. N.Y. Life Ins. Co., 228 U.S. 364, 365, 33 S.Ct. 523, 57 L.Ed. 879. Why, then, may not an appellate federal court exercise the same power when the amount of the verdict is clearly excessive? The advantages of such procedure are generally recognized, Northern Pacific R. R. Co. v. Herbert, 116 U.S. 642, 646-647, 6 S.Ct. 590, 29 L.Ed. 755; Arkansas Valley Land & Cattle Co. v. Mann, 130 U.S. 69, 74, 9 S.Ct. 458, 32 L.Ed. 854; the defendant is not prejudicially affected by a reduction of the amount adjudged against him; the plaintiff is merely given the option to have a new trial or to accept the maximum recovery that the court has...

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30 practice notes
  • Hayman v. United States, No. 12297.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 14, 1951
    ...sense that a court required to do a job may make the necessary orders to accomplish it. I think this is implied in Barrett v. Hunter, 187 F.2d 475 10 Cir., 180 F.2d 510, 514, certiorari denied 340 U.S. 897, 71 S.Ct. Not a single proposition in any of the opinions filed was urged by either p......
  • Johnson v. Colglazier, No. 21722.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 10, 1965
    ...Wilson, (5th Cir. 1934), 74 F.2d 439; Sunray Oil Co. v. Allbritton, 5th Cir., 188 F.2d 751, 752; Sunray Oil Co. v. Allbritton, 5th Cir., 187 F.2d 475, 477; Vaughn v. Magee (8th Cir. 1914) 218 F. 630, 631; West Texas Utilities Co. v. Renner (Tex.Com.App.1932) 53 S.W.2d 451. 3 "Note 2 `The ju......
  • Dagnello v. Long Island Rail Road Company, No. 173
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • March 24, 1961
    ...1955, 220 F. 2d 914; Phoenix Indemnity Co. v. Givens, 5 Cir., 1959, 263 F.2d 858, 863; cf. Sunray Oil Corp. v. Allbritton, 5 Cir., 1951, 187 F.2d 475. Even the Eighth Circuit has started to wobble a bit. See St. Louis Southwestern Ry. Co. v. Ferguson, 1950, 182 F.2d We need not pause to con......
  • Gulf Oil Corporation v. Wright, No. 15692.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • August 10, 1956
    ...well; that it had retained control of the premises and the work being done there; and that under Sunray Oil Corp. v. Allbritton, 5 Cir., 187 F.2d 475, 476,4 where the defendant 236 F.2d 56 had furnished a derrick for use by the contractor, and the cases on which it rests, it owed plaintiff,......
  • Request a trial to view additional results
30 cases
  • Hayman v. United States, No. 12297.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 14, 1951
    ...sense that a court required to do a job may make the necessary orders to accomplish it. I think this is implied in Barrett v. Hunter, 187 F.2d 475 10 Cir., 180 F.2d 510, 514, certiorari denied 340 U.S. 897, 71 S.Ct. Not a single proposition in any of the opinions filed was urged by either p......
  • Johnson v. Colglazier, No. 21722.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 10, 1965
    ...Wilson, (5th Cir. 1934), 74 F.2d 439; Sunray Oil Co. v. Allbritton, 5th Cir., 188 F.2d 751, 752; Sunray Oil Co. v. Allbritton, 5th Cir., 187 F.2d 475, 477; Vaughn v. Magee (8th Cir. 1914) 218 F. 630, 631; West Texas Utilities Co. v. Renner (Tex.Com.App.1932) 53 S.W.2d 451. 3 "Note 2 `The ju......
  • Dagnello v. Long Island Rail Road Company, No. 173
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • March 24, 1961
    ...1955, 220 F. 2d 914; Phoenix Indemnity Co. v. Givens, 5 Cir., 1959, 263 F.2d 858, 863; cf. Sunray Oil Corp. v. Allbritton, 5 Cir., 1951, 187 F.2d 475. Even the Eighth Circuit has started to wobble a bit. See St. Louis Southwestern Ry. Co. v. Ferguson, 1950, 182 F.2d We need not pause to con......
  • Gulf Oil Corporation v. Wright, No. 15692.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • August 10, 1956
    ...well; that it had retained control of the premises and the work being done there; and that under Sunray Oil Corp. v. Allbritton, 5 Cir., 187 F.2d 475, 476,4 where the defendant 236 F.2d 56 had furnished a derrick for use by the contractor, and the cases on which it rests, it owed plaintiff,......
  • Request a trial to view additional results

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