Landry v. Two R. Drilling Co.

¶5TUTTLE, Circuit Judge:

¶6This is an appeal and cross-appeal from special jury verdicts of over $300,-000 in favor of the plaintiff, Linda Landry, in her capacity as personal representative for herself and her two minor children. The awards were for injuries arising out of two separate mishaps suffered by her seaman husband Lloyd— one resulting in his death. The jury verdicts were for $7,500 for an injury to the *140seaman’s hand, and $575,000 for his death. Of the $575,000 originally awarded, $175,000 was awarded to the plaintiff in her individual capacity, and $200,000 for each of her children. The jury found the decedent was 20% contributorily negligent and consequently Mrs. Landry’s award was automatically reduced by the trial court to $140,000. Rather than specifically reducing each child’s award by 20%, the trial court considered the 20% contributory negligence of the decedent in remitting each award by 50% — to $100,000 for each child. The remittitur was vigorously protested and is one of the issues on appeal. Thus, the final award for the plaintiff totalled $347,500.

¶7Neither party is satisfied. The plaintiff wants the judgment increased, because she contends that the remittitur was improper and further that the trial court erred in refusing to allow recovery for non-pecuniary loss under the teaching of Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974). The defendant cites several alleged errors in the trial court’s admission of evidence and instructions to the jury, and adds that the damages awarded the children were “grossly excessive.”

¶8We affirm the judgment of liability against the defendant, but vacate the award of damages and remand to the trial court for further proceedings as herein directed.

¶9I.

¶10Trial of this case required four days of extensive testimony, much of it concerning the technical details of the drilling operation where the decedent worked. We rehearse only a brief summary of the facts, addressed to points on appeal.

¶11Lloyd Landry was a 27-year-old roughneck/seaman employed by the defendant, Two R. Drilling Co., on its vessel, Rig No. 6, a submersible oil-drilling, barge, located in Horseshoe Bayou, near Centerville, St. Mary Parish, Louisiana. He had been so employed for approximately one year, was regarded by his superiors as a “good worker,” and was being paid $11,000 per annum.

¶12On September 19, 1971, two fingers of Landry’s right hand (he was left-handed) were injured when struck by a sledgehammer wielded by a fellow employee of the company. Both fingers were badly lacerated, and the middle finger had a chipped bone. The company does not contest on appeal that its negligence caused these injuries. Landry underwent treatment consisting of suturing and medication. The attending physician prescribed Firoinal No. 3 1 to alleviate pain. He later testified that the medication is not extremely strong and normally does not impair the patient’s functions.

¶13Landry returned to work on September 26, 1971. He was wearing his right arm in a web-type sling. Early that morning, he washed off the shale shaker on the upper deck of the rig with the pressure hose provided for the task. The deck was not enclosed at this point, but a three-foot high metal guard railing surrounded the area. (The lower deck immediately below the shale shaker was also unenclosed and had no guard railing.) Landry was told -by the rig’s superintendent not to continue the job, but to go into the galley and watch television if he wished. The rig’s tool-pusher, who is second in command to the superintendent gave Landry a similar order. He told Landry not to resume his regular duties, lest he be injured, but permitted him to bring ice and root beer to the workers in the area. However, the driller, Landry’s immediate superior, told Landry a short time later to watch the shale shaker and rinse it off if necessary. Landry was last seen that day in the pump room shortly after 3 p. m., but only a few minutes earlier he had been observed rinsing off the shale shaker with the pressure hose. At 5:30 p. m., Landry did not answer the roughneck’s whistle, and a search of the rig began. *141The entire rig was shut down at 8 p. m., and Landry’s body was found at 10 p. m. in shallow water ten to twelve feet from the rig and approximately 24 feet from the deck below the shale shaker. The autopsy showed time of death to be 4 p. m.

¶14Landry’s widow brought a wrongful death action, in her capacity as personal representative2 for herself and her two minor children aged five and two, under the Jones Act, 41 Stat. 1007, 46 U.S.C. § 688, and general maritime law. The dual cause of action alleged negligence and/or unseaworthiness of the rig, respectively, as the cause of Landry’s hand injury and of his death. The jury found the defendant negligent with respect to the hand injury and found the defendant negligent, and its vessel unseaworthy, with respect to the death. Damages were awarded as described above.

¶15II.

¶16The defendant assigns two errors, primarily3, with respect to the imposition of liability upon it for Landry’s death: it contends that the trial court should have allowed cross-examination of the plaintiff’s expert witness on the applicability to the vessel of Coast Guard safety regulations On handrailings, and it contends that there is no evidence in the record of any causal connection between the vessel’s allegedly inadequate hand-railing and Landry’s drowning. We disagree with the defendant on both points.

¶17*142The plaintiff’s expert witness, a qualified marine surveyor and safety expert, testified that in his opinion the handrailings on the rig near the shale shaker were inadequate. He did not rest his conclusion on the Coast Guard regulations, however. He made his conclusion on the basis rather of his experience and expertise in the field. He mentioned the regulations in passing only as one factor, but he did not point to them as a decisive factor and explicitly disavowed official knowledge of their applicability to the rig. In short, the applicability of the regulations were not in issue inasmuch as his testimony was concerned, and it was within the trial court’s discretion to deny cross-examination on their applicability.

¶18The second point requires only a brief answer as well. The burden on the plaintiff to prove proximate cause in actions based on the Jones Act and general maritime law is very light. Indeed, the most noted commentators in the field have called it “featherweight.” Gilmore & Black, Admiralty (1957), § 6-36, p. 311. The jury in such cases is entitled to make “permissible inferences from unexplained events,” Johnson v. United States, 333 U.S. 46, 49, 68 S.Ct. 391, 92 L.Ed. 468 (1948), whether the case is brought under the Jones Act, id.,or under general maritime law, Alaska Steamship Co., Inc. v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798per curiam (1954). The Supreme Court has repeatedly said that it is not the function of the court in Jones Act and analogous cases to “search the record for conflicting circumstantial evidence in order to take the case away from the jury on a theory that proof gives equal support to inconsistent and uncertain inferences.” Tennant v. Peoria & P.U.R. Co., 321 U.S. 29, 35, 69 S.Ct. 409, 412, 88 L.Ed. 520 (1944); Schulz v. Penn. R. Co., 350 U.S. 523, 526 n.8, 76 S.Ct. 608, 100 L.Ed. 668 (1956).

¶19The trial court instructed the jury, over the plaintiff’s objection, that with respect to Landry’s death only pecuniary damages were recoverable and that the plaintiff was not to be compensated for loss of love and companionship. During the pendency of this appeal, the Supreme Court held that loss of “society” was recoverable in wrongful death actions under general maritime law. Sea-Land Services v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974). The Court defined “society” as “a broad range of mutual benefits each family member receives from the others’ continued existence, including love, affection, care, attention, companionship, comfort, and protection.” 414 U.S. at 585, 94 S.Ct. at 815. Our Court has recently held that “loss of consortium is a compensable harm” under Gaudet, Skidmore v. Grueninger, 506 F.2d 716, at 728 (5th Cir. 1975), but that “for purposes of precluding double recovery we note that a recovery for loss of consortium includes loss of society.” Id. at 729. Two R. contends that while Gaudet does in fact allow recovery of nonpecuniary losses, it does so only for the death of a longshoreman where unseaworthiness is urged against the vessel owner and that such a recovery is not allowed under the Jones Act, citing Canal Barge Co. v. Griffith, 480 F.2d 11 (5th Cir. 1973). *143However, Canal Barge is no longer valid precedent on this issue. See Kaiser v. Travelers Insurance Co., 487 F.2d 1300 (5th Cir. 1974) reh. granted, 496 F.2d 531 (5th Cir. 1974). Furthermore, while the question of the proper measure of damages when the recovery is solely under the Jones Act has not been decided by this Circuit, where, as here, there is liability under both a Jones Act claim and a general maritime claim for unseaworthiness, this Court has recognized Gaudet damages as proper. See McDonald v. Federal Barge Lines, Inc., 496 F.2d 1376 (5th Cir. 1974).

¶20*142The record in this case clearly demonstrates that the handrailings where or near where Landry worked were inadequate at some places, and nonexistent at others. The record further shows that his body, with the sling still fettering his right arm, was found in water adjacent to these areas. There was thus sufficient evidence for the jury to find that the lack of handrailings caused Landry’s drowning, at least in part. Were we to select another possible inference and hold that there was inadequate evidence of causation, as the defendant asks us to do, we would be “taking the case from the jury” in clear contravention of well-established principles that have been frequently reiterated by the Supreme Court. Tennant v. Peoria & P.U.R. Co., supra.

¶21The judgment of liability against the defendant is accordingly affirmed.

¶22III.

¶23*143Under the Gaudet rule, the plaintiff was entitled to recover not only loss of support and services, but also loss of society. Because the trial court refused to allow evidence on loss of society and instructed the jury not to consider such loss in reaching its verdict, the judgment of damages must be vacated and remanded to the trial court for further proceedings not inconsistent with this opinion.4 The judgment of liability is affirmed.

¶31GEE, Circuit Judge

¶32(concurring):

¶33Believing our opinion to be as mandated by the Supreme Court’s precedents on sufficiency of evidence in FELA and Jones Act matters 1 and in all other respects correct, I concur. However we may view these holdings,2 we must apply them.