Willis v. Titan Contractors Corp.

• Decision Date: 19 November 1981
• Docket Number: No. A2684,A2684
• Citation: 625 S.W.2d 69
• Parties: Tommy WILLIS, Appellant, v. TITAN CONTRACTORS CORP., Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 69

625 S.W.2d 69

Tommy WILLIS, Appellant, v. TITAN CONTRACTORS CORP., Appellee.

No. A2684.

Court of Appeals of Texas, Houston (14th Dist.).

Nov. 19, 1981.

Newton B. Schwartz, Houston, for appellant.

Marion E. McDaniel, Jr., Houston, for appellee.

Before J. CURTISS BROWN, C. J., and JUNELL and PRICE, JJ.

PRICE, Justice.

This is a suit for personal injuries brought by appellant against his employer, Titan Contractors, as a seaman under the Jones Act (46 U.S.C. § 688) arising out of an injury received by appellant when he slipped on the bow of a motor skiff in the Houston Ship Channel. From an adverse jury verdict under a Jones Act submission, appellant brings this appeal, asserting seventeen points of error. We affirm.

In his principal points of appeal appellant contends that he was a seaman as a matter of law; that an erroneous definition of seaman was submitted to the jury; that irrespective of an adverse jury finding regarding his status as a seaman he is entitled to recover damages under the unseaworthiness doctrine and that such a recovery would not be reduced under the comparative negligence findings; that even if he is not entitled to recovery under the Jones Act or the unseaworthiness doctrine, he is still entitled to recover under the Longshoremen and Harbor Workers' Compensation Act, section 5(b) based upon the jury findings on the submitted issues of negligence and causation and that such recovery would be reduced by the 50% comparative negligence finding; that it was erroneous to have admitted into evidence appellant's filing of a notice of injury and claim for compensation with the Industrial Accident Board and to have excluded evidence regarding appellant's lack of other insurance; that it was erroneous to have admitted a recorded telephone conversation and a summary of that conversation; and that appellant was entitled to a submission on maintenance and cure.

Appellant alleged in his trial pleading that he was a seaman under the Jones Act and that the suit was brought under the Jones Act (46 U.S.C. § 688) for recovery of damages for injuries received in November of 1978 while working for his employer, Titan Contractors. In this pleading appellant alleged generally that appellee was negligent; no special exceptions to these general allegations of negligence were ever heard. Appellant did not plead or contend that he was a maritime worker engaged in maritime employment and instead confined his pleading to the allegation he was a seaman under the Jones Act. The case was pleaded and tried as a Jones Act case. In special issues the jury found that appellant sustained an injury in November 1978 while employed by appellee; that appellant was not a seaman; that appellee was negligent in failing to provide a nonslip surface on the bow of its boat and in failing to provide a ladder and, therefore, the boat was not fit for its intended use; that the failure to provide a non-slip surface was a producing cause of appellant's injuries; that appellant was contributorily negligent; that appellant and appellee were each 50% negligent; that past medical bills were $16,000.00; that future medical bills totaled $250.00; and that appellant's damages were $24,000.00 for past physical pain and mental anguish, lost past earnings of $19,200 and none for future lost earnings. Appellant's motion for a judgment n.o.v. on the unseaworthiness claim was denied. The trial court entered a take nothing judgment in favor of appellee and from that judgment appellant perfects this appeal.

Appellant was employed by appellee as a backhoe operator engaged in the installation of a pipeline under the Houston Ship Channel. He worked on the mainland moving with the aid of machinery sections of pipe and then positioning them for welding. This was all part of a land-based operation to bore a hole under the Houston Ship Channel to Barber's Cut for the purpose of installing a pipeline. A drilling rig was set up on an inclined ramp on Hogg Island and upon breaking ground through the opposite side of the channel, the string of pipe which had been previously welded together would be pulled back through the bore hole. At one point in the channel it became necessary to use barges anchored in position known as "spud barges" to aid in the process.

Willis' principal duties were performed on the mainland at a site directly across the channel from the drilling operation; this location was reachable by land to the extent that appellant was able to travel by automobile to and from the job site. Appellant did not work with the drilling crew on the island, nor was he assigned to the skiff or barge as a crew member or otherwise. Appellant offered evidence that appellant serviced and spent a substantial amount of time aboard a twenty-four foot skiff used to ferry workers to and from Hogg Island. Appellant also presented evidence that on the day of his alleged injury he had traveled as a passenger on the skiff to the barge to help deliver some oil and that after unloading the oil onto the barge, he checked the cables on the barge. Appellee's evidence was that appellant had no job related activities on the barge and that he did not use the skiff in his employment. Appellee's evidence further offered that appellant only used the skiff for personal reasons or in conjunction with his union activities as a steward to see union members working on the drilling rig on Hogg Island. On the occasion in question, appellant contends that he slipped and fell when re-boarding the skiff from the barge, resulting in the injuries of which he complains.

Appellant urges that we should find him to be a seaman as a matter of law as the courts held in Norton v. Warner, 321 U.S. 565, 64 S.Ct. 747, 88 L.Ed. 931 (1944) and Landry v. Amoco Production Company, 595 F.2d 1070 (5th Cir. 1979). In these two cases both of the plaintiffs were permanently assigned to vessels and in the Fifth Circuit case the facts "governing plaintiff's status as a seaman were beyond cavil." Landry v. Amoco Production Co., supra at 1071. The Jones Act gives "(a)ny seaman who shall suffer a personal injury in the course of his employment" the right to bring an action for damages against his employer, but does not define the term "seaman." 46 U.S.C. § 688 (1976). Case law indicates that to qualify as a Jones Act seaman the appellant "must be able to show that he was permanently assigned to or performed a substantial part of his work on the tender (vessel) and that the capacity of his employment contributed to the function of the tender (vessel), its mission, its operation, or its welfare." Longmire v. Sea Drilling Corp., 610 F.2d 1342, 1345 (5th Cir. 1980); Offshore Company v. Robison, 266 F.2d 769, 779 (5th Cir. 1959). To meet the requirement of Robison that the worker "performed a substantial part of his work on the vessel" it must be shown that he performed a significant part of his work aboard the ship with at least some degree of regularity and continuity. Keener v. Transworld Drilling Company, 468 F.2d 729, 732 (5th Cir. 1972).

In this case the jury decided the issue of seaman status against appellant. The question of whether an injured employee was a seaman at the time of his injury is normally a question for the trier of fact. Longmire v. Sea Drilling Corp., supra at 1345. The federal courts have broadened the jury function in Jones Act cases to such an extent that "the appellate court has no jurisdiction to overturn a jury verdict supported by some evidence of probative force even though the appellate court should conclude that the verdict is against the great weight and preponderance of the evidence." Continental Oil Company v. Robert E. Lindley, 382 S.W.2d 296 (Tex.Civ.App.-Houston 1964, writ ref'd n.r.e.). Where there is evidence present which raises the elements of the Longmire and Robison definition of seaman, the issue becomes one for the jury and we conclude that in the instant case there was sufficient evidence for the jury's finding that appellant was not a seaman.

Appellant further contends that the trial court's definition of seaman was erroneous. In the instant case the trial court's definition of seaman as "An employee who is permanently assigned to a vessel, or who performs a substantial part of his work on that vessel and whose duties contribute to the function of the vessel or the accomplishment of its mission, its operation or its welfare" was essentially correct pursuant to the standards set out in Offshore Company v. Robison, supra, at 779 and Longmire, supra at 1036. Appellant asserts that the word "permanent" was not defined; this contention is without merit because the trial court definition was framed in the disjunctive of either permanent or a substantial part of appellant's work. Furthermore, the term "vessel" has been expanded to include some nonconventional waterborne vessels and the jury was free to consider the skiff and barges involved in Titan's work so that appellant's complaint regarding the use of the word "vessel" as an undue limitation is specious....