Benoit v. Fireman's Fund Ins. Co.

361 So. 2d 1332
CourtLouisiana Court of Appeal
DecidedAugust 4, 1978
Docket5988
StatusPublished
Cited by14 cases

This text of 361 So. 2d 1332 (Benoit v. Fireman's Fund Ins. Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Benoit v. Fireman's Fund Ins. Co., 361 So. 2d 1332 (La. Ct. App. 1978).

Opinion

361 So.2d 1332 (1978)

Sweeney BENOIT, as personal representative of William Benoit, Jr., Plaintiff-Appellee,
v.
FIREMAN'S FUND INSURANCE COMPANY, Stand-By Crews, Inc., and Deepwater Boats, Inc., Defendants-Appellants.

No. 5988.

Court of Appeal of Louisiana, Third Circuit.

August 4, 1978.
Rehearing Denied September 25, 1978.

*1333 Camp, Carmouche, Palmer, Barsh & Hunter, Karl E. Boellert, Lake Charles, for defendants-appellants.

Ronald J. Bertrand, Lake Charles, for appellee.

Before DOMENGEAUX, GUIDRY, and CUTRER, JJ.

DOMENGEAUX, Judge.

This matter is before us on remand from judgment of the Supreme Court, 355 So.2d 892 (La.1978) #60,336 on the docket of that Court, rendered March 6, 1978.

Involved is recovery for the maritime wrongful death of William Benoit, Jr., on the part of his three minor children.[1]

Plaintiff-appellee, Sweeney Benoit, brings this action as personal representative of decedent. He alleges that Benoit drowned on March 8, 1973, in the Gulf of Mexico while a member of the crew of the "Carol Ann," a vessel owned by Deepwater Boats, Inc., one of the named defendants, and operated and manned by Stand-By Crews, Inc., another of the named defendants. The last named defendant, Fireman's Fund Insurance Company, is the insurer of both Deepwater Boats and Stand-By Crews. The vessel was used for stand-by purposes in connection with offshore drilling activities.

Plaintiff seeks recovery under the Jones Act, 46 U.S.C.A. Sec. 688; the Death on High Seas Act, 46 U.S.C.A. Sec. 761; and the General Maritime Law, alleging unseaworthiness and negligence.[2]

The first time this case was before us, we resolved an issue involving the validity of a settlement on the part of the minor children. We found that the settlement was valid and reversed the trial judge's ruling.[3] On writ of certiorari, the Louisiana Supreme Court reversed our judgment and remanded the case back to us for a consideration of issues not reached in our previous opinion.

In a supplemental brief, filed after remand to this Court, defendants have outlined the issues to be considered at this stage. They are:

*1334 (1) The absence of any proof that William Benoit, Jr. drowned or otherwise perished as a result of the unseaworthiness of the vessel, or as a result of the negligence of the owner or operator of the vessel;
(2) The excessiveness of the award to the minor children;
(3) The refusal of the trial court to submit special interrogatories to the jury, and the lack of balance or precision as to the form actually submitted to the jury; and
(4) The prejudicial and improper conduct of plaintiff's counsel in front of the jury.
We will discuss these issues in order.

I. UNSEAWORTHINESS AND NEGLIGENCE

Decedent disappeared during the early morning hours of March 8, 1973, while the "Carol Ann" was tied to a Mobil Oil Company offshore platform in the Gulf of Mexico. At the time of the disappearance, the "Carol Ann" was being used as a stand-by boat in the event that it would be needed for the oil rig. The vessel was manned by only two crew members, the Captain, Albert Trobl, and decedent.

Benoit was last seen by Captain Trobl between 1:00 and 3:30 A.M. Although the two had retired to their quarters at approximately 10:00 P.M., for some reason, Captain Trobl awoke during the early morning and found Benoit in the galley smoking a cigarette. After a brief conversation, Trobl returned to his quarters. When Trobl arose at approximately 6:10 A.M., he could not find Benoit. A check of Benoit's quarters revealed that his clothing and personal belongings were still there. The entire vessel was searched. Assistance was obtained from Mobil Oil Company personnel on the rig, as well as from the United States Coast Guard. A search was conducted throughout the day; however, neither Benoit nor his body was ever found.

Defendants contend that the evidence presented in this case was insufficient to prove drowning and insufficient to prove unseaworthiness or negligence.

At the outset, we note that the scope of review of jury verdicts in maritime cases like this is the same as that of the Federal Courts. Trahan v. Gulf Crews, Inc., 260 La. 29, 255 So.2d 63 (1971). As we stated in Hocut v. Insurance Company of North America, 254 So.2d 108, 111 (La.App.3rd Cir. 1971), writ denied, 260 La. 411, 256 So.2d 292 (1972):

". . . . In Gallick v. Baltimore and Ohio Railroad Company, 372 U.S. 108, 83 S.Ct. 659, 9 L.Ed.2d 618, the Supreme Court of the United States in quoting from Tennant v. Peoria & P.U.R. Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520 defined those limits as follows:

`"It is not the function of a court to search the record for conflicting circumstantial evidence in order to take the case away from the jury on a theory that the proof gives equal support to inconsistent and uncertain inferences. The focal point of judicial review is the reasonableness of the particular inference or conclusion drawn by the jury. It is the jury, not the court, which is the fact-finding body. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable. Washington & Georgetown R. Co. v. McDade, 135 U.S. 554, 571, 572, 10 S.Ct. 1044, 1049, 34 L.Ed. 235; Tiller v. Atlantic Coast Line R. Co., supra, 318 U.S. [54] 68, 63 S.Ct. [444] 451 [87 L.Ed. 610], 143 A.L.R. 967; Bailey v. Central Vermont Ry., 319 U.S. 350, 353, 354, 63 S.Ct. 1062, 1064, 87 L.Ed. 1444. That conclusion, whether it relates to negligence, causation or any other factual matter, cannot be ignored. Courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel *1335 that other results are more reasonable." 321 U.S., at 35, 64 S.Ct. at 412.'

In Trahan v. Gulf Crews, Inc. [246 So.2d 280 (La.App.3rd Cir. 1971)], we quoted from Rogers v. Missouri Pacific Railway Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493, thusly:
'It is no answer to say the jury's verdict involved speculation or conjecture * * * Only where there is a complete absence of probative facts to support the conclusion reached does a reversible error appear * * * 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.' (Emphasis added) Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916."

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