Vickers v. Tumey

• Decision Date: 12 April 1961
• Docket Number: No. 18312.,18312.
• Parties: James E. VICKERS, d/b/a Delta Towing Company, v. Floyd W. TUMEY.
• Court: U.S. Court of Appeals — Fifth Circuit

290 F.2d 426 (1961)

James E. VICKERS, d/b/a Delta Towing Company, v. Floyd W. TUMEY.

No. 18312.

United States Court of Appeals Fifth Circuit.

April 12, 1961.

COPYRIGHT MATERIAL OMITTED

W. C. Keady, Greenville, Miss., George B. Matthews, New Orleans, La., Lemle & Kelleher, New Orleans, La., Farish, Keady & Campbell, Greenville, Miss., of counsel, for appellant.

Philip Mansour, Greenville, Miss., for appellee.

Before TUTTLE, Chief Judge, and BROWN and WISDOM, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

The vessel owner appeals from a judgment entered in part on a jury verdict for damages and on separate findings of the Judge for maintenance, wages and cure occasioned by injuries sustained on the River Towboat Nita Dean. The errors urged are the failure of the Trial Court to direct a verdict for want of sufficient evidence of negligence or unseaworthiness, three errors in the Court's charge, and the allowance by the Judge of wages, as such, beyond the end of the voyage.

The injury — one of the few facts besides the name of the river and the vessel not hotly disputed — occurred on October 16, 1958. Tumey, a farmer and laborer and consequently a green, inexperienced hand, joined the tug on October 6, 1958. The tow had been uncoupled to go through a lock. While recoupling the barges and the tow by means of steel wire ropes (cables), he undertook to put his foot on a spoke of the wheel in the deck winch apparently to tighten down on the winch. He somehow lost his balance, fell to the deck, and broke his leg. He was put ashore and hospitalized for some time and after extended out-patient convalescence achieved maximum cure on March 9, 1959. He returned to work March 15, 1959.

No good would be served in detailing the evidence. While Tumey, as plaintiff, was outnumbered by fellow crew members on nearly every crucial issue, this conflict was of the kind inherent in damage suits, either dry-land, amphibious or water-borne. The jury could have found, as he swore, that he had received no adequate instruction in the performance of this unusual task, there were no lights, it was pitch dark, and some fellow worker failed properly to wrap the cables around the fitting. On the other hand it could have held that the lights were so bright that one could — as one witness put it — read a newspaper, the green horn had been instructed and warned against the method being used, the cables were properly wrapped and the machinery was all in fine working order.

Resolution of this fact dispute was for the jury. On it the evidence satisfies the standard under the Jones Act, 46 U.S.C.A. § 688, as it is variously stated. "Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought." Rogers v. Missouri Pacific Ry. Co., 1957, 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493; Ferguson v. Moore-McCormack, 1957, 352 U.S. 521, 523, 77 S.Ct. 457, 1 L.Ed.2d 511, 1957 A.M.C. 647.¹

On the complaint of errors in the charge, the most substantial one relates to the instructions on the nature of the Shipowner's duty. The Court at one spot literally stated that it "was the duty of the defendant, the owner of this boat and these barges, to furnish to the plaintiff a reasonably safe place within which to work." At another place he made a shorthand reference to the action to be taken if the jury found the Shipowner "failed to provide such a place to work" and in translating the general instructions to a specific complaint of failure of adequate lights, he introduced it by the broad language "in dealing with the duty to furnish a safe place within which to work * * *."

While these things at times appear to border on metaphysical dialectic, the owner so far has a basis for urging this to have been wrong in an important respect. Specifically, the criticism is that the duty to furnish, as is the object of such furnishing, must be qualified by due care. That would require the instruction to read that "it was the duty of the vessel owner to 1 use reasonable care in furnishing a 2 reasonably safe place to work." The legal concept "reasonable" applies, then, both to the act of furnishing and the thing or condition to be furnished. This, the owner insists, is what was substantially held in Atlantic Coast Line R. Co. v. Dixson, 5 Cir., 1951, 189 F.2d 525, 527-28; and Anderson v. Elgin, Joliet & Eastern Ry. Co., 7 Cir., 1955, 227 F.2d 91, 97.

Of course with a statute transplanted from the switchyard to navigable waters, it would be doctrinaire to suggest that incorporation of FELA by the Jones Act necessarily brought along identical standards and application. It would be clearly wrong because it would ignore the essential differences in conditions and circumstances of employment. The Arizona v. Anelich, 1936, 298 U.S. 110, 56 S.Ct. 707, 80 L.Ed. 1075, 1936 A.M.C. 627; Beadle v. Spenser, 1936, 298 U.S. 124, 56 S.Ct. 712, 80 L.Ed. 1082, 1936 A.M.C. 635. This difference, and the likely difference in the application of this common statute was forecast by Cardozo's words in a case in which the broad principles of FELA found an application quite beyond any expectation for railroad workers. "The FELA act for the protection of railroad employees does not define negligence. It leaves that definition to be filled in the general rules of law applicable to the conditions in which a casualty occurs." Cortes v. Baltimore Insular Line, 1932, 287 U.S. 367, 377, 53 S.Ct. 173, 176, 77 L.Ed. 368, 1933 A.M.C. 9; Cox v. Roth, 1955, 348 U.S. 207, 209, 75 S.Ct. 242, 99 L.Ed. 260, 1955 A.M.C. 942; Gilmore & Black, The Law of Admiralty § 6-26 at 297 (1957); 2 Norris, The Law of Seamen § 686 at 368 (1952).

Besides the physical aspects of maritime employment which inescapably gives living and working a common experience, a significant factor in the application of the Jones Act is the traditional idea of the duty to provide a seaworthy vessel. The duty to furnish gear, fittings, appliances, etc., which are reasonably fit — i. e., seaworthy, is absolute. Mitchell v. Trawler Racer, Inc., 1960, 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941, 1960 A.M.C. 1503.² Undoubtedly this unique and awesome obligation has led courts in Jones Act cases to express the shipowner's duty toward seamen along these lines. "The obligation of a shipowner to his seamen is substantially greater than that of an ordinary employer to his employees. * * *." The owner has "the duty of furnishing" a seaman "a safe place in which to work and" is "responsible for a seaworthy ship and safe equipment. This duty is absolute and not merely a result of the Jones Act." Interocean S.S. Co. v. Topolofsky, 6 Cir., 1948, 165 F.2d 783, 784, 1949 A.M.C. 198; 2 Norris, The Law of Seamen § 688 at 376 (1952). This echoed the like statement "It is the duty of the vessel to provide a safe working place for members of its crew" in Sadler v. Pennsylvania R. Co., 4 Cir., 1947, 159 F.2d 784, 786, 1947 A.M.C. 636. And discussing the specific problem against the backdrop of § 282 of the Restatement of Torts, the Third Circuit put it this way. "A standard of conduct established by law with respect to employers of seamen is that they shall provide their employees with a safe place in which to work." Armit v. Loveland, 3 Cir., 1940, 115 F.2d 308, 311, 1940 A.M.C. 1429. And in a case in which it was inescapable that it contrast work at sea with work on railroads, the Supreme Court took notice, without criticism, of the fact that the jury had been instructed that "the shipowner is under a duty to furnish a seaman with a safe place in which to work * * *." Socony-Vacuum Oil Co. v. Smith, 1939, 305 U.S. 424, 428, 59 S.Ct. 262, 265, 83 L.Ed. 265, 1939 A.M.C. 1.

There may be, of course, some possible difficulties in a conceptual way. One might argue plausibly that when the duty to furnish a reasonably suitable appliance is absolute, as it certainly is under the broad command to furnish a seaworthy vessel, that is the statement of a legal duty of like absoluteness. Consequently, a failure to perform that duty — no matter what the excuse — is a breach of a legal duty owed. That, of course, is the classic test under normal tort concepts to determine the existence of negligence.

But despite the difficulties, a difference is recognized having different legal consequences. Just recently this has been reiterated in a pointed way. "Here," the Supreme Court states, "a distinction" must "be noticed between the unseaworthiness and Jones Act claims * *." The Court goes on. "The vessel's duty to furnish seamen with tools reasonably fit for their intended use is absolute * * *; and this duty is completely independent of the owner's duty under the Jones Act to exercise reasonable care." Michalic v. Cleveland Tankers, 1960, 364 U.S. 325, 327, 81 S.Ct. 6, 9, 5 L.Ed.2d 20, 1960 A.M.C. 2251. At that point the Supreme Court then expressly adopts what we had earlier said in Cox v. Esso Shipping Co., 5 Cir., 1957, 247 F.2d 629, 1957 A.M.C. 1927. "One is an absolute duty, the other is due care. Where * * the ultimate issue * * * is seaworthiness of the gear * * * the owner has an absolute duty to furnish reasonably suitable appliances. If he does not, then no amount of due care or prudence excuses him, whether he knew, or could have known, of its deficiency at the outset or after use. In contrast, under the negligence concept, there is only a duty to use due care, i. e., reasonable prudence, to select and keep in order reasonably suitable appliances. Defects which would not have been known to a reasonably prudent person at the outset, or arose after use and which a reasonably prudent person ought not to have discovered would impose no liability." 247 F.2d at page 637; 364 U.S. 328, 81 S.Ct. 6.

The distinction is manifested by the Court's translation of the problem into specific terms of this...