Schoonmaker v. Capital Towing Co.

512 So. 2d 480, 1987 La. App. LEXIS 9870
CourtLouisiana Court of Appeal
DecidedJune 23, 1987
DocketCA 86 0620
StatusPublished
Cited by22 cases

This text of 512 So. 2d 480 (Schoonmaker v. Capital Towing 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
Schoonmaker v. Capital Towing Co., 512 So. 2d 480, 1987 La. App. LEXIS 9870 (La. Ct. App. 1987).

Opinion

512 So.2d 480 (1987)

Ruth SCHOONMAKER, et al.
v.
CAPITAL TOWING COMPANY.

No. CA 86 0620.

Court of Appeal of Louisiana, First Circuit.

June 23, 1987.
Rehearing Denied August 26, 1987.
Writ Denied November 13, 1987.

*481 Mac Trelles and Partners, Mac Trelles, Dan Larpenteur and Hank des Border, Baton Rouge, for Ruth Schoonmaker, et al.

David M. Vaughn and David Guerry, Baton Rouge, for Dr. Lucas and State Farm Ins. Co.

Howard Murphy and Bert Cass, New Orleans, for Capital Towing Co.

Before GROVER L. COVINGTON, C.J., and LANIER and ALFORD, JJ.

GROVER L. COVINGTON, Chief Judge.

This is an appeal from judgment on the jury verdict in favor of defendant, Capital Towing Company (Towing Company) and against the plaintiffs, Ruth Schoonmaker, widow of George B. Schoonmaker, and her children, Billie S. Langlois, JoAnn S. Garland, Deanne S. Webb, Sienna S. McCarstle *482 and Kathleen S. Weems, in an action for wrongful death of George B. Schoonmaker.

Plaintiffs filed a supplemental petition naming as an additional defendant, State Farm Fire & Casualty Company, the liability insurer of the boat owner. Towing Company denied liability to plaintiffs and filed a third party demand against the owner-operator, Dr. James Lucas, and his insurer, for indemnity and contribution.

When the case came on for trial, after voir dire examination, the plaintiffs and State Farm notified the trial judge that they had entered into a compromise settlement. With the approval of all parties, including the plaintiffs, the trial judge announced this development to the jury. Plaintiffs' claim against State Farm was dismissed, and the trial proceeded only against the Towing Company.

The case was tried to the jury; and, after due deliberation, the jury returned a verdict in favor of Towing Company. In response to interrogatories on the issue of Towing Company's defense of contributory negligence and its third party demand, the jury found that Dr. Lucas and George B. Schoonmaker, the deceased, were each guilty of negligence of 50%. Judgment was entered on the verdict, and the plaintiffs perfected a devolutive appeal, specifying as error, the following:

(1)

The jury committed manifest error in finding, under the principles of comparative negligence, no fault whatsoever on the part of the operator of the M/V JANICE CAROL in contributing to and/or causing the collision with the Lucas outboard motor boat, and the resulting drowning of Mr. Schoonmaker.

(2)

The trial judge erred in his charge by giving repetitive, confusing, and misleading instructions to the jury.

(3)

The trial judge erred in advising the jury on two occasions during the trial that plaintiffs had settled with a party to the suit and compounded the error by advising the jury of the terms of the settlement.

(4)

The trial judge erred in commenting on the evidence during his charge to the jury.

FACTS

On the afternoon of November 26, 1982, George B. Schoonmaker and his friend, Dr. James (Jack) Lucas, embarked on a fishing trip from Morales' Landing on Grand River (Intracoastal Canal) in the parish of Iberville. They were in a small out-board motor boat owned and operated by Dr. Lucas. They knew before leaving the landing that the boat was having steering problems; the steering cables were stuck or impaired and the boat could not be turned properly. After trying without success to fix the steering problem, they embarked, with Schoonmaker manually steering the boat by turning the motor by hand and Dr. Lucas operating the throttle at the console of the boat. Dr. Lucas was wearing a life-vest, but Schoonmaker was not wearing one. They were going to Pat's Bay, a body of water off Grand River and on the other side (west) from Morales' Landing, in order to fish.

As they backed out of Morales' Landing and almost to the middle of the river, Dr. Lucas started going forward. He then saw the barges, which he called to Schoonmaker's attention. They thought the barges were headed directly toward them, so they tried to get out of the path of the barges by accelerating. The acceleration caused a sudden torque which caused Schoonmaker to lose control of the motor. The boat then turned back into the path of the barges rather than getting to their starboard side. The lack of speed and maneuverability of the small craft due to the impaired steering rendered the boat uncontrollable in the face of the oncoming barges.

Dr. Lucas testified:

Q. We're assuming you saw the barge because you said you did.

A. When I saw the tug the point was to get out of the way and we were headed straight for it. When I put it in speed, it went straight forward and so I let up. And so we could *483 make more room, more time, cutting and going to the side of the barge that way.

Q. As I appreciate your testimony, then, the bow of your boat at the time you gave it the gas would have been headed this way.

A. Yes.

Q. And then after you gave it the gas it continued in its downstream direction and then you let off of the throttle somewhat?

A. He (Schoonmaker) could turn it. He could turn the boat either right or left. He chose left and I was very much in agreement with that direction.

Q. In other words, then the boat was being turned over in the direction of Morales' Landing?

A. Right.
Q. But it was going very slow, was it not, Doctor?

A. It was going real slow as far as my feelings were concerned. But I guessed at the time of the deposition, which I did read over, that we were going five or so miles an hour and the maximum speed of that boat at full speed would be twenty-five or thirty we suggested.

Q. Well, had you had your steering system working, there would have been no problem getting across that canal to Morales' Landing, would there have been?

A. That's right.

Q. In other words, you could have made it over there without even coming close to this barge?

A. That's right.

Q. Dr. Lucas, did you ever give any signal to the tow that your bass boat was having a problem prior to the collision?

A. Not except the time I mentioned that I did put the paddle up to be sure he saw us.

Q. How close were you to the lead barge at that point?

A. I don't know the footage. But maybe as far as from here to he (sic) back of the room.

Q. Maybe about—

A. Fifty feet, seventy-five feet, thirty feet. I don't know. But in the area I thought—I couldn't see the tug and I was afraid he couldn't see us. That's why I put the paddle up and waved it like that, so he would be sure at least to know he was doing something to us.

Q. Up until that point, is my understanding correct, that you thought your boat was going to make it across?

A. Well, I was frantically trying to see that it would.
Q. What point of the barge made contact with what part of your boat, Dr. Lucas?
A. If you're looking at the operator's side, the front corner on the right.

According to Aubin, pilot of the tugboat, he first sighted the bass boat when his lead barge was 1,200 feet away and he had his tow positioned in the middle of the channel.

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Bluebook (online)
512 So. 2d 480, 1987 La. App. LEXIS 9870, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schoonmaker-v-capital-towing-co-lactapp-1987.