Telfair v. Zim Israel Navigation Company, 27418.

• Decision Date: 22 July 1970
• Docket Number: No. 27418.,27418.
• Citation: 428 F.2d 127
• Parties: Herman TELFAIR, Plaintiff-Appellant, v. ZIM ISRAEL NAVIGATION COMPANY, Limited, Defendant-Third-Party Plaintiff-Appellee, v. LUCKENBACH STEAMSHIP COMPANY, Third-Party Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

428 F.2d 127 (1970)

Herman TELFAIR, Plaintiff-Appellant, v. ZIM ISRAEL NAVIGATION COMPANY, Limited, Defendant-Third-Party Plaintiff-Appellee, v. LUCKENBACH STEAMSHIP COMPANY, Third-Party Defendant-Appellee.

No. 27418.

United States Court of Appeals, Fifth Circuit.

June 19, 1970.

Rehearing Denied July 22, 1970.

Robert Orseck, Miami, Fla., Roger Vaughan, Jr., Wagner, Cunningham & Vaughan, Bill Wagner, Tampa, Fla., for plaintiff-appellant.

Dewey R. Villareal, Jr., John W. Boult, Fowler, White, Gillen, Humkey & Kinney, P. A., Tampa, Fla., for Zim Israel Navigation Co.

James O. Davis, Jr., J. A. McClain, Jr., McClain, Turbiville, and Heller, Tampa, Fla., for Luckenbach S.S. Co.

Before WISDOM, GEWIN, and AINSWORTH, Circuit Judges.

WISDOM, Circuit Judge.

Seas Shipping Company v. Sieracki, 1946, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099, extended the warranty of seaworthiness to longshoremen. Ryan Stevedoring Company v. Pan-Atlantic S.S. Corporation, 1956, 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133, shifted the liability to the stevedore when it breaches the warranty of workmanlike service. In this longshoreman (Telfair) — shipowner (Zim Israel) — stevedore (Luckenbach) case, Telfair complains of the court's granting a new trial which resulted in a much lower verdict than the verdict in his first trial. We review, first, the district court's decision to grant a new trial because it had originally withheld from the jury the shipowner's defense of contributory negligence and, second, its conclusion that the stevedore breached its warranty of workmanlike service. We affirm the district court's judgment.

I.

On May 4, 1966, Herman Telfair, "header" (foreman) of a longshoreman gang, slipped on a ladder while descending into the hold of the Mazal, a ship owned by Zim Israel Navigation Company, Limited. The injury required first a cartilege removal and then, because of arthritis coupled with the torn meniscus and operation, a knee joint fusion or arthodesis, permanently disabling Telfair from work as a longshoreman. The screws in his knee and joint-stiffening produced chronic back problems which eventually will cause disc problems.

In December 1966, Telfair sued Zim Israel in a Florida state court for negligence and unseaworthiness, alleging that he had slipped on grease on an access ladder. Zim Israel removed the case to federal district court and filed a third party complaint against the stevedore company, Luckenbach Steamship, for indemnity. Both Zim Israel and Luckenbach argued that Telfair had been contributorily negligent.

At the close of all the evidence, the district court granted Telfair's motion for a directed verdict on the issue of contributory negligence. The jury found that Zim Israel was not negligent, but awarded Telfair $133,385 for the Mazal's unseaworthiness. The district court entered judgment March 27, 1968. Two months later, the court granted Zim Israel's motion for a new trial (timely filed), finding "that there was sufficient evidence to have permitted the jury to consider the issue of the contributory negligence of the plaintiff".

At the second trial, the jury awarded Telfair $50,000. The district court denied Telfair's motion for a new trial. The court also entered judgment in favor of Zim Israel and against Luckenbach on the third-party claim. Telfair and Luckenbach appealed.

II.

The precedent is longstanding in this Court that

A motion for new trial is addressed to the trial judge\'s discretion. He may grant a new trial if he thinks he has committed error; * * * The exercise of his discretion is not ordinarily reviewable on appeal, though a failure to exercise discretion, or an abuse of it, may be corrected.

Marsh v. Illinois Central Railroad Company, 5 Cir. 1949, 175 F.2d 498, 500; see Stewart v. Texas & Pacific Railway Company, 5 Cir. 1960, 278 F.2d 676, 678. Indeed, "in few, if any situations is the discretion of a trial judge broader than in granting a new trial". Willitt v. Purvis, 5 Cir. 1960, 276 F.2d 129, 132. Here the district court initially removed the issue of contributory negligence from the jury, believing there was no evidence on which to submit it. Prompted by Zim Israel's motion, however, the district court upon further consideration concluded that he should have allowed that issue to go to the jury. Consequently, he granted the motion for a new trial.

In diversity cases, the question whether sufficient evidence is presented to send a case to the jury is controlled by federal standards in this Circuit. Boeing Company, v. Shipman, 5 Cir. 1969, 411 F.2d 365, 368-370. Boeing directs that a "mere scintilla of evidence" will not prevent a directed verdict, but "if there is substantial evidence opposed to the motions", "in the light and with all reasonable inferences most favorable to the party opposed to the motion", then the issue should properly be submitted to the jury. Here, Beam, the first...