Trahan v. Gulf Crews, Inc.

Decision Date08 November 1971
Docket NumberNos. 51410,51443,s. 51410
Citation260 La. 29,255 So.2d 63
PartiesMrs. Myrtle TRAHAN et al. v. GULF CREWS, INC., et al.
CourtLouisiana Supreme Court

Jones & Jones, J. B. Jones, Jr., Cameron, for plaintiffs-applicants.

Edgar F. Barnett, Lake Charles, Hinds & Meyer, John K. Meyer, Houston, Tex., Faris, Ellis, Cutrone, Gilmore & Lautenschlaeger, Joy S. Miller, New Orleans, for defendants-respondents.

McCALEB, Chief Justice.

The surviving widow and children of Howard J. Trahan, Sr., instituted this suit under the federal maritime law as supplemented by the Jones Act, 46 U.S.C.A. § 688, to recover for his wrongful death by drowning during the course and scope of his employment by defendant, Gulf Crews, Inc. They joined as parties defendant the employer's insurer and the excess underwriters. 1

In the suit damages totalling $565,000 were sought. The jury trying the case found the defendant-employer liable and fixed the total award at $168,125, with interest, allocated as follows: To Mrs. Myrtle Trahan, the surviving widow, $107,625; to Delores Ruth Trahan, a minor who was 14 when her father died, $45,500; and to each of the three adult children (Robert Lee Trahan, Howard J. Trahan, Jr., and Beverly Trahan Ogea, a divorced daughter living with the Trahans when he died), $5,000.

The defendant sought a new trial on the ground the evidence did not support the jury finding with respect to the negligence of the defendant-employer; and, further, that the awards were excessive, particularly with respect to the widow, the minor daughter, and the two adult sons. No mention is made of the award to the adult daughter. Alternatively, they sought remittur under Article 1813 of the Louisiana Code of Civil Procedure. 2

The trial judge denied this motion, holding the evidence sustained the jury finding on the merits, and the awards were not excessive. 3 Defendants appealed to the Court of Appeals for the Third Circuit.

The appellate court affirmed on the merits, 246 So.2d 280. As to the quantum, the court found the amounts awarded the minor daughter and the two adult sons to be 'grossly excessive' on the theory the case was brought and tried solely on the Jones Act, concluding that there was no proof these children would have received from their father--had he lived--pecuniary benefits sufficient to justify the awards. No analysis was made by the court with respect to the awards to the widow and adult daughter. However, stating it was without authority to 'change the finding of fact of the jury as to the quantum,' the court remanded the case for 'a new trial.' We granted these writs as to all parties, both plaintiffs and defendants. 258 La. 913, 248 So.2d 585.

In reaching its decision the appellate court properly recognized that its review of the jury verdict in suits under the general maritime law as expanded by the Jones Act is, necessarily, the same as that of the federal courts. Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916; Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493; McAllister v. Magnolia Petroleum Co., 357 U.S. 221, 78 S.Ct. 1201, 2 L.Ed.2d 1272; and Macomber v. De Bardeleben Coal Co., Inc., 200 La. 633, 8 So.2d 624. 4 The defendants do not dispute this.

Accordingly, although Louisiana appellate courts have the constitutional authority 5 to review both the law and the facts of a case, they may not, under federal law and jurisprudence, disturb the finding of a trial jury on the merits in such cases unless there is no reasonable basis for the jury's conclusion the death or injury resulted from the negligence of the defendant-employer. Rogers v. Missouri Pacific R. Co., supra; Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, 369 U.S. 355, 82 S.Ct. 780, 7 L.Ed.2d 798; and Lavender v. Kurn, supra.

In the Rogers case the United States Supreme Court, in reversing a decision of the Supreme Court of Missouri, which had set aside an award in a FELA 6 case on the ground plaintiff's proof did not establish defendant's liability, held that in such cases the judicial right of review of facts is restricted to the single inquiry of whether, within reason, the evidence adduced supports the conclusion that the negligence of the employer played any part at all in the injury or death of the employee. The court stressed the special and important reasons for granting certiorari in such cases 'when lower federal and state courts persistently deprive litigants of their right to a jury determination' by substituting their own view of the facts for the jury's findings and, in this manner, erode Congressional intent in the enactment of such acts 'by narrow and niggardly construction.'

In Tennant v. Peoria & P.U.R. Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520, the court said: 'The very essence of (the jury's) function is to select from among conflicting inferences and conclusions that which it considers most reasonable.' And, in the Ellerman case, supra, the court emphasized that neither it 'nor the Court of Appeals can redetermine facts found by the jury any more than the District Court can predetermine them.'

In Lavender v. Kurn, supra, the United States Supreme Court further elucidated: 'It is no answer to say that the jury's verdict involved speculation and conjecture. * * * Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. But where * * * there is an evidentiary basis for the jury's verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. And the appellate court's function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.'

On the merits of the case, therefore, we concur with the appellate court's affirmance of the jury verdict. There was ample evidence on which the jury could base its conclusion that Trahan's death resulted from the negligence of the defendant-employer. This is particularly true in view of the extraordinary duty the law places on shipowners and masters in cases of rescue from the water. 7

The facts developed during the trial as found by the appellate court are not seriously challenged by the defendants. These reveal that Trahan 'was the master of the M/V Don, an 85-foot boat used to service offshore oil rigs. Other crew members were Cyril Darbonne, the engineer, and Wesley LeBouef, deckhand. The boat was being used to fulfill a contract to service wells of Shell Oil Company about 60 miles offshore from Morgan City, Louisiana. The crew's duty was seven days and nights at sea, and seven days and nights on shore, off duty. During the day they went from platform to platform to service the Shell Oil Company operations. At night they returned to Platform B to stand by. Platform B stood some 60 feet above the water with a boat landing deck about 10 feet above the water.

'At approximately 6:00 p.m. on March 14, 1969, Captain Trahan and his crew secured the M/V Don to Platform B by two mooring lines and went to the living quarters on the platform where they ate dinner and watched television. During the time they were aboard Platform B, the weather gradually worsened. The wind reached gale force, with seas running 12 to 14 feet, and the M/V Don broke its mooring line and began to drift away. Captain Trahan was making his way down toward the boat landing, as he had done several times earlier that evening to check on the boat, when he saw that the mooring line had broken. He rushed to the platform landing. He took off his hat, coat, and shoes and told LeBouef, his deckhand, to 'get a life ring.' Then Trahan jumped, either in an attempt to board the board or to dive in the water and swim to the drifting boat. LeBouef, in the meantime, fumbled with the life ring, which was attached to the railing by means of a bracket at the level of 10 feet above the water. Darbonne also went over to help LeBouef get it loose. Finally, LeBouef secured the life ring and, with it in his hand, ran to the railing edge. At that moment Trahan was in the water near or back of a piling approximately 15 feet away. Neither LeBouef nor Darbonne ever threw out the life line. Captain Trahan disappeared into the sea. He was last seen swimming toward the M/V Don. His body was never recovered.' (The emphasis has been supplied.)

As pointed out above, the rescue of a person in the water gives rise to an exceptional duty and accountability. The underlying character of the duty the employer owes a seaman overboard is such that, although it is less than a duty to rescue him, regardless of the cause for which he went overboard, it is a Positive obligation to make a Sincere attempt at rescue. Gardner v. National Bulk Carriers, 310 F.2d 284, 91 A.L.R.2d 1023 (4th Cir.); Harris v. Pennsylvania Railroad Co. (4th Cir.), 50 F.2d 866; Macomber v. De Bardeleben Coal Co., 200 La. 633, 8 So.2d 624; and the annotations at 91 A.L.R.2d 1032; and 30 NACCA Law Journal 344.

As stated in the Gardner case, 'The duty is of such nature that * * * Once the evidence sustains the reasonable possibility of rescue, Ample or narrow, according to the circumstances, Total disregard of the duty, refusal to make even a try, as was the case here, imposes liability.' (Emphasis added)

As pointed out above, the jury plays a pre-eminent role in seamen cases. 8 From the facts adduced during the trial, the jury here could readily have concluded the defendant-employer's representatives were negligent in failing to make any attempt to rescue Trahan. It could also have found that the shipowner was negligent in failing to furnish a seaworthy vessel, as alleged in the petition, in that the equipment was not reasonably safe and the crew was not competent. 9

Moreover, although contributory negligence does not bar recovery in such cases, serving only to mitigate...

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