Morris Aymond, Plaintiff-Appellee-Cross-Appellant v. Texaco, Inc., Defendants-Appellants-Cross-Appellees

554 F.2d 206, 1977 U.S. App. LEXIS 12879, 1977 A.M.C. 1487
CourtCourt of Appeals for the Fifth Circuit
DecidedJune 17, 1977
Docket75-2931
StatusPublished
Cited by28 cases

This text of 554 F.2d 206 (Morris Aymond, Plaintiff-Appellee-Cross-Appellant v. Texaco, Inc., Defendants-Appellants-Cross-Appellees) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Morris Aymond, Plaintiff-Appellee-Cross-Appellant v. Texaco, Inc., Defendants-Appellants-Cross-Appellees, 554 F.2d 206, 1977 U.S. App. LEXIS 12879, 1977 A.M.C. 1487 (5th Cir. 1977).

Opinions

HUGHES, District Judge:

While working on a drilling crew on a fixed platform off the Louisiana coast, Morris Aymond was injured when a steel cable, called a snub line, snapped, allowing metal tongs which it anchored to swing into and damage his knee.

Aymond, an employee of Falcon Seaboard Drilling Company, instituted a negligence action against Texaco, Inc., on whose platform he was working at the time of the accident, and Travelers Insurance Company, Texaco’s insurer. Aymond also named Jones & Laughlin Steel Corporation as a defendant, alleging its liability as either a vendor or manufacturer of the broken cable. Texaco filed a third party complaint against Falcon, with which it had a drilling contract at the time of the accident, and its insurer, Highlands Insurance Company. In this third party complaint, Texaco sought indemnity from Falcon or, alternatively, insured status under Falcon’s insurance contract with Highlands. Falcon and Highlands then filed a third party complaint against Jones & Laughlin.

The trial court directed a verdict in favor of Jones & Laughlin and, after refusing to direct a verdict in favor of Texaco against Aymond, let the balance of the case go to the jury.1 The jury found both Texaco and Falcon negligent, but the trial court released Falcon from liability after holding that Falcon owed no indemnity to Texaco because of Texaco’s negligence. Thus, after this legal scramble, Texaco was left holding the bag.

Texaco has appealed, raising four principal issues. Aymond has cross-appealed on the issue of computation of interest.

We first address the issue of whether or not the trial court erred in its denial of Texaco’s motions for directed verdict and judgment notwithstanding the verdict.

The cable which snapped was thrown into the Gulf of Mexico shortly after the accident and was unavailable for inspection at trial. Testimony indicated that it was a W “wire rope” made of woven steel strands with a steel core, and that witnesses who inspected the cable before it was tossed overboard found it was rusty at the center but not on the outside. Basically, Aymond’s negligence argument was that Texaco had breached its duty of reasonable care owed to Aymond in that it had required Falcon to use salt water instead of fresh water to wash as often as 50 times per day the deck around the drilling area. The broken cable had been looped around metal tongs which were used in drilling operations in this area and which allegedly were washed by this salt water. As part of [208]*208his negligence theory, Aymond contended that salt water: caused corrosion faster than fresh water; was indeed used to wash down the deck and some of the equipment, including the tongs and the part of the cable looped over the tongs; and caused corrosion which contributed significantly to the cable’s breaking.

Before considering the evidentiary details, we note the following passage which sets forth the standard by which both trial and appellate courts must judge motions for directed verdict and judgment notwithstanding the verdict: “[T]he Court should consider all of the evidence . . . but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motion is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable . . . men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury.” Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969). See also Worthington Corp. v. Consolidated Aluminum Corp., 544 F.2d 227 (5th Cir. 1976). Did Aymond present “substantial evidence” that Texaco was negligent?

In disclaiming its negligence,2 Texaco makes several arguments. It argues that the need to conserve fresh water offshore due to transportation difficulties and expense justified the use of salt water to wash work areas. It argues that evidence showed the universal practice in the offshore drilling industry was to use salt water for clearing decks and fresh water for washing equipment. It argues that evidence showed salt water did not cause the snub line’s failure because the point of failure was washed with fresh water, the cable was in use only 10 to 12 days, and the cable’s being rusty on the inside but not the outside indicated that the cable had a defect prior to its use. Furthermore, Texaco argues, there was expert testimony that the cable could not have failed in such short time due to corrosion from salt water. Finally, Texaco claims that Aymond’s principal expert witness, Frank Weaver, gave speculative testimony based only on a hypothetical situation and that his testimony indicated that washing with salt water was only one of several possible causes of the cable’s corrosion.

Arrayed against Texaco’s evidence, Aymond had testimonial evidence that, regardless of any presumed need to minimize the use of fresh water offshore, it was not the universal practice in the offshore drilling industry to wash the decks with salt water, that the point of failure was washed with salt water, and that spraying with salt water could have caused corrosion within so short a time as 10 to 12 days, with the cable’s weakening from such corrosion being exacerbated by stress placed on the snub line. Aymond’s expert witness Weaver testified that a metallurgical theory known as the “wick theory” would explain the phenomenon of a cable rusting on the inside before the outside. In what is perhaps the weakest part of Aymond’s negligence case against Texaco, Weaver testified at length in response to a hypothetical question by Aymond’s counsel. This portion of Aymond’s case requires some elaboration.

In response to the hypothetical question, necessitated by the cable’s unavailability, Weaver testified that the cause of cable failure would be corrosion from salt water. As brought out on cross-examination, the question excluded certain other possible causes of stress corrosion, an exclusion acknowledged by Weaver in a colloquy with the district judge:

“THE COURT: Now, what Mr. Woodley [Texaco’s attorney] is asking is that [salt water as the cause of corrosion] just a [209]*209possible something or is that probable, in your opinion?
THE WITNESS: I have to say, Judge, based on the facts that I have been presented with, this would be probable, as much as possible. In the hypothet, we have eliminated the other possible.
THE WITNESS: I think you can appreciate that I elaborated that there are many possible causes.” (R. 589-90).

Later, there was this exchange between the district judge and Weaver:

“THE COURT: But as far as you are concerned it [salt water and subsequent corrosion as the cause of the breakage] might have been possible and it might have been probable?
THE WITNESS: That’s right.
THE COURT: You are not choosing between those words?

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Bluebook (online)
554 F.2d 206, 1977 U.S. App. LEXIS 12879, 1977 A.M.C. 1487, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morris-aymond-plaintiff-appellee-cross-appellant-v-texaco-inc-ca5-1977.