Sanguinetti v. Moore Dry Dock Co. ( 1951 )

SCHAUER, J.

Defendant appeals from a judgment rendered against it in plaintiff’s action, brought under the Jones Act (46 U.S.C.A. § 688)¹, to recover for injuries suffered by him while employed as the operator of defendant’s tugboat, the “Moore No. 2.” We conclude that by reason of the misconduct of counsel in moving in the presence of the jury, at the close of plaintiff’s evidence, to amend the complaint by increasing the amount prayed for as damages, which motion was subsequently granted by the trial court, and the fact thereof brought to the attention of the jury, the judgment must be reversed.

The tugboat, 45'10" in length and 12'9" wide, was used to tow other craft, to place barges alongside hulls under repair at defendant’s shipyards in the Oakland Estuary, and to go where needed around San Francisco Bay. When the tug was not in use, plaintiff did rigging work in the yard. He testified that his 40-hour work week was divided into approximately 24 hours as master of the tugboat and 16 hours as rigger; his hourly rate of pay was greater as tugboat operator than as rigger. His orders came from the rigging department. Plaintiff sometimes handled the tug alone and at other times was assisted by a deckhand.

On May 2, 1947, plaintiff, pursuant to orders, took the tugboat from defendant’s Oakland yard to Pier 18 in San Francisco, picked up a 66' derrick barge loaded with scrap steel, and towed the barge back to the Oakland yard where the steel was unloaded. The barge was then to be docked at a pier a short distance away. Plaintiff testified that while the tug was in motion during the docking operations, it became necessary, because of a faulty clutch on the tug, for him to jump back and forth from the tug to the barge. In so doing he lost his balance and his left leg was pinned between the tug and the barge as they swung together, and was badly crushed.

Defendant’s first contention on appeal is that plaintiff was not a seaman entitled to sue under the Jones Act, but was rather a harbor worker whose exclusive remedy is under the Longshoremen’s and Harbor Workers’ Compensation Act (44 Stat. 1424, ch. 509; 33 Ü.S.C.A. §§ 901, 905). That act provides in section 902, however, that “ (3) The term ‘employee’ does not include a master or member of a crew of any vessel . . and in section 903 that “. . . No compensation shall be payable in respect of the disability or death of-(1) A master or member of a crew of any vessel ...”

Defendant’s counsel in his opening statement declared that plaintiff “was the operator in charge of the tug, and he was in law what would be called a ‘master,’ although in connection with tugs, it is normally called an operator . . .” At the time plaintiff was injured he was actively engaged as master in navigating the tug and was “naturally and primarily on board to aid in her navigation” (South, Chicago Coal & Dock Co. v. Bassett (1939), 309 U.S. 251, 260 [60 S.Ct. 544, 84 L.Ed. 732]). It thus appears that, as plaintiff asserts, under the holding of the ease just cited and of Warner v. Goltra (1934), 293 U.S. 155, 159 [55 S.Ct. 46, 79 L.Ed. 254], and Norton v. Warner Co. (1944), 321 U.S. 565, 571-572 [64 S.Ct. 747, 88 L.Ed. 931], he is as master excluded from the coverage of the Workers’ Compensation Act, and is entitled to maintain this action. Moore Dry Dock Co.v. Pillsiury (1938), 100 F.2d 245, relied upon by defendant, concerned a deckhand who was drowned while engaged in repairing a tugboat while she was tied up at the dock, and is not decisive here.

Defendant next contends that plaintiff’s counsel committed misconduct in moving, in the presence of the jury, to amend the prayer of the complaint to ask $75,000 instead of $50,000 in damages, and that such misconduct when followed by the action of the court, after argument without the jury’s presence, in granting the motion, resulted in such prejudice to defendant as to require reversal of the judgment.

The record discloses the following proceedings in the jury’s presence at the close of plaintiff’s case:

“Mr. Hoberg [Counsel for Plaintiff] : . . . Plaintiff will rest but asks leave to amend the complaint to increase the amount in the prayer from $50,000 to $75,000 incurred and to be incurred on the evidence that has been submitted here before the Court and jury.

“Mr. Ray [Counsel for Defendant] : I desire to argue that matter in chambers and reserve the right at this time to move for a mis-trial upon the grounds of plaintiff’s misconduct in connection with the motion.

“The Court : Well, I will hear that matter out of the presence of the jury.”

The jurors were then dismissed, and the following proceedings had:

"The Court : Now, then, in regard to this motion to amend the complaint, have you any authority there, or do you want to let it go over until tomorrow 1

“Mr. Hoberg : There is no question about this, your Honor. I have done it a hundred times.

“The Court: It is done every day here, but I don’t know whether in raising the amount—whether that is a matter that should have gone in outside of the presence of the jury.”

After argument the court granted plaintiff’s motion, defendant thereupon renewed his motion for a mistrial on the ground of misconduct of plaintiff’s counsel in presenting the motion in the jury’s presence, and the court denied defendant’s motion. Defendant then presented its evidence, and the ease went to the jury with an instruction, among others, that “The damages must be reasonable and cannot be in excess of the amount alleged in the complaint, namely $75,-000.” The jury retired from the courtroom, and 35 minutes later returned with a verdict for plaintiff in the sum of $75,000.

No California decision directly in point has been cited or discovered by our research. It is, of course, the rule in this state that the jury may be instructed as to the maximum verdict which may be returned, as was done here. (Lahti v. McMenamin (1928), 204 Cal. 415, 421 [268 P. 644]; see, also, McNulty v. Southern Pacific Co. (1950), 96 Cal.App.2d 841, 853 [216 P.2d 534].) In Buswell v. City & County of San Francisco (1948), 89 Cal.App.2d 123, 133 [200 P.2d 115], in discussing defendant’s point that a permitted amendment to increase the prayer had not been “formally made to the complaint,” the court mentions that “At the end of the trial and in the absence of the jury, plaintiffs moved to amend the complaint to conform to the proof by increasing the prayer . . . Defendant vigorously objected. The court granted the motion.” (Italics added.) The point before us in the instant case was thus not involved in Buswell. In Duffey v. General Petroleum Corp. (1949), 93 Cal. App.2d 757, 758-759 [209 P.2d 986], it is stated that “At the beginning of the trial, on October 19, 1948, plaintiffs’ counsel moved to amend the complaint by increasing the amount of the alleged damage to $4,000, and the motion was granted. Defendant interposed an objection to the amendment, but did not ask for a continuance of the trial by reason thereof. The jury returned a verdict for $4,000.” (Italics added.) No discussion of the point here at issue appears in the opinion.

In several New York cases the impropriety of moving, in the jury’s presence, for permission to increase the amount sought in the prayer of the complaint is discussed and the practice condemned. Thus, in Kenney v. Soxith Shore Natural Gas & Fuel Co. (1908), 126 App.Div. 236 [110 N.Y.S. 503, 504-505], a personal injury action, “After the selection of the jury, and before any evidence had been taken, plaintiff moved to amend her complaint by changing the amount asked in her prayer for relief from $10,000 to $25,000. Defendant’s counsel duly objected, and the court reserved its decision thereon. The evidence on both sides had been practically completed before the court passed upon the motion, and allowed the amendment asked for.” The verdict was for $20,000. On appeal the judgment was reversed, with the following observations by the court; “It seems that the court on the trial of an action may, in the proper exercise of its discretion, permit plaintiff to amend his complaint by increasing the amount of damages demanded. [Citations.] . . . [But] we do not think such an amendment can properly be permitted . . . [without] explaining why application for the privilege had not previously been made . . . [and] some reason showing the propriety of the amendment . . .

“. . . the record now before us . . . discloses no reason for granting the motion, unless the action of the court thereon was influenced by the evidence produced on the trial as to the extent and nature of plaintiff’s injuries. . . . [nor] is there ... in the statement of the court on granting the motion, a suggestion of a reason why such an amendment was asked for at that time, nor why it .was then granted ... As the motion was made in the presence of the jury, and the court held its disposition thereof until after the evidence was concluded, it is at least probable that the jury may have been to some extent influenced in arriving at the unusually large verdict awarded by the, perhaps unwarranted, assumption that the court, after hearing the evidence, concluded that plaintiff had shown herself entitled to larger damages than she had at first demanded in her complaint, and that the court’s favorable action on the motion was due to that fact.” (Italics added.)

In Sandresky v. Erie R. Co. (1915), 91 Misc. 67 [153 N.Y.S. 612, 613], “At the opening of the trial, without an affidavit of the plaintiff, the latter was permitted to amend his complaint, increasing the demand for damages ...” for personal injuries. After pointing out that the plaintiff had failed to explain why he had delayed until trial his motion to amend, and that the rule called for denial of the motion under such circumstances, the court concluded, “We think the present case is within the rule, and that it was error to permit the plaintiff to amend the complaint in the presence of the jury, and that because of this error the judgment should be reversed, with costs, unless the plaintiff is willing to stipulate that the damages shall be reduced to come within the cause of action originally pleaded.” (Italics added.)

In Walker v. Bradt (1929), 225 App.Div. 415 [233 N.Y.S. 388, 391], the following appears: “Appellant’s contention that the court erred in permitting plaintiff during the trial to increase the demand in her complaint from $3,000 to $6,000 is without merit. We are satisfied that this was not done in the hearing of the jury, and the amount of the verdict was less than $3,000.” (Italics added.)

In Pfeil v. Klein (1936), 247 App.Div. 510 [286 N.Y.S. 721, 722], a personal injury action, the court said: “Plaintiff gave no intimation of any claim of damage, beyond $3,000, until the case was fully tried and the jury had been charged, and then asked to amend the complaint so as to demand $20,000 damages. This motion was denied, and then the court granted a motion to conform the pleadings to the proof. The verdict was for $8,000.

“The effect of the granting of the motion to conform the pleadings to the proof was to conform the pleading to whatever verdict the jury might find, and this, occurring, as it did, in the presence of the jury, carried the implication that the court thought that the proof warranted a verdict larger than $3,000. This caused prejudice to defendants, which requires a reversal. [Citing the Sandresky and Kenney cases, supra.]

“Had the verdict been $3,000 or less, no harm would have been done. Blackwell v. Finlay [1922], 233 N.Y. 361, 364, 135 N.B. 600; Walker v. Bradt [supra] . . .” (Italics added.)

In Blackwell v. Finlay, cited in Pfeil v. Klein, supra, “Plaintiff, an attorney . . . , brought suit to recover the reasonable value of services rendered by him to defendant. . . . The jury found for the plaintiff . . . and rendered a verdict in his favor for $10,000 . . . , which was the amount demanded in the complaint.” In affirming the judgment the court commented (p. 364 of 233 N.Y.) : “At the close of the evidence the plaintiff was permitted to amend his complaint by alleging that the value of his services was $17,000 and demanding judgment for that amount. If the verdict had been for more than the amount originally demanded, it might have been urged that this was an abuse of discretion and that the trial judge was without power to permit the amendment. We agree, however, . . . that defendant was not prejudiced. He was not contesting the value of the services as originally alleged in the complaint.”

And in Sohman v. Metropolitan St. Ry. Co. (1907), 56 Misc. 342 [106 N.Y.S. 1033], in denying defendant’s motion to set aside a verdict on the ground of surprise, the court states, “The amendment of the complaint by increasing the amount of damages claimed was granted at the close of the case after all the evidence was before the court. The argument was made in the absence of the jury, which had left the courtroom by direction of the presiding justice, and in accordance with his instructions no mention was made of the granting of such motion by counsel in summing up to the jury.”

In the Missouri case of Prichard v. Dubinsky (1935), 338 Mo. 360 [89 S.W.2d 530, 531], in rejecting defendant’s contention that “the court should not have permitted plaintiff to amend the petition at the close of the evidence by increasing the $10,000 prayed for as damages to $20,000,” it is pointed out that “The amendment was not made in the presence of the jury.” (See, also, Hinchliffe v. Wenig Teaming Co. (1916), 274 111. 417 [113 N.E. 707, 708].)

Regardless of the lack of California authority on the precise point at issue, we are convinced that any practice which would include the making of a motion, in the presence of the jury, after production of evidence, to increase the amount of damages asked, and which would bring to the knowledge of the jury the fact that the court after hearing plaintiff’s evidence permitted the complaint to be amended by increasing the prayer for damages, should be unhesitantly condemned and stricken down. As commented in Starr v. United States (1894), 153 U.S. 614, 626 [14 S.Ct. 919, 38 L.Ed. 841], quoted in Bollenbach v. United States (1946), 326 U.S. 607, 612 [66 S.Ct. 402, 90 L.Ed. 350], “It is obvious that under any system of jury trials the influence of the trial judge on the jury is necessarily and properly of great weight, and that his lightest word or intimation is received with deference, and may prove controlling.” (See, also, Vaughan v. Magee (1914, 3 Cir.), 218 Fed. 630, 631 [134 C.C.A. 388].) It is, of course, elementary that the amount of damages is ordinarily a question of fact to be determined by the jury. (See 8 Cal.Jur. 877, § 119, and cases there cited.)

Plaintiff urges that in any event defendant could not have been prejudiced by what occurred, inasmuch as the court also instructed the jury generally that they were the sole judges of the evidence, they were not to be influenced on factual issues by any action of the court, that they were the sole judges of any damages to be awarded, and that any such damages must be reasonable.² Plaintiff also points out that defendant makes no contention that the jury’s verdict is disproportionate to the injuries sustained by plaintiff. But regardless of the possible effect (or lack of effect) of this fact in a case based on California law, it cannot be decisive here where issue was joined not only on the amount of injuries sustained but also (under the Jones Act) on the proportionate responsibility (comparative negligence) of the parties, and where, upon the state of the evidence, a large measure of discretion rests with the jury.

Defendant specifically resisted plaintiff’s claim of damages, on the ground that plaintiff’s injuries were proximately caused by his own negligence rather than that of defendant, and on the further ground that if any negligence of defendant were found to have proximately contributed to such injuries, then the damages to be assessed should be reduced by the jury under the comparative negligence doctrine which applies under the Jones Act. (See The J. H. Hillman (1939), 108 F.2d 231; Stewart v. United States (1928), 25 F.2d 869.) Substantial evidence was introduced by defendant in support of its position. Assuming that plaintiff had shown injuries for which $75,000 would constitute fair compensation he is, nevertheless, not entitled to recover $75,000 from defendant if plaintiff’s own negligence contributed proximately and in any substantial degree to those injuries. In such event it would be the duty of the jury to compare the negligence of plaintiff with that of defendant and to award plaintiff only that proportion of $75,000 which defendant’s negligence bears to “the entire negligence attributable to both the plaintiff and the defendant.” (Haskins v. Southern Pac. Co. (1934), 3 Cal.App.2d 177, 191 [39 P.2d 895].) This is not, therefore, a case in which the error can be said to be nonprejudicial because the issues were resolved on undisputed or overwhelming evidence. (See Blanton v. Curry (1942), 20 Cal.2d 793, 813 [129 P.2d 1]; Anderson v. Hagen (1937), 19 Cal.App.2d 714, 726 [66 P.2d 168]; Wither son v. City of El Monte (1936), 17 Cal.App.2d 615, 623 [62 P.2d 790] (Hrg.Den.).) As often emphasized by this court (see e.g., Anthony v. Hobbie (1945), 25 Cal.2d 814, 817-818 [155 P.2d 826]) “The issues of negligence and proximate cause are essentially questions of fact.” Likewise is the question of comparative negligence essentially one of fact, and because that question is ordinarily resolved by the jury only by awarding a lump sum to the plaintiff, which sum must constitute reasonable compensation for his injuries less such proportion of the reasonable compensation as may be attributable to his own fault, the likelihood of prejudice from an error such as that which we have here is intensified.

Under the circumstances we find no reasonable basis for holding that defendant was not prejudiced by the jury’s knowledge that the court had permitted plaintiff to ask for $75,000, rather than $50,000, “incurred and to be incurred on the evidence that has been submitted here before the Court and jury,” especially when consideration is given to the further fact that, as defendant points out, the “jurors retired, elected a foreman, reached a verdict, filled in the form of verdict, had it signed by the foreman, notified the bailiff, the bailiff notified the court, the court notified counsel, and the jury returned to the courtroom, all in 35 minutes.”

The situation here, in legal effect, is basically comparable to that in Oettinger v. Stewart (1944), 24 Cal.2d 133, 140 1148 P.2d 19, 156 A.L.R. 1221], which prompted the court to say, “In cases where it clearly appears that the jury did not rely upon the erroneous instructions, the judgment may be affirmed on the ground that the error is not prejudicial. This, however, is not such a case. Neither the evidence of contributory negligence nor of negligence, although sufficient as a matter of law, can be said to be convincing, and we should not speculate upon the basis of the verdict. ” To the same effect see, also, Pipoly v. Benson (1942), 20 Cal.2d 366, 375 [125 P.2d 482, 147 A.L.R. 515]; People v. Dail (1943), 22 Cal.2d 642 [140 P.2d 828]; Intagliata v. Shipowners & Mer. etc. Co. (1945), 26 Cal.2d 365, 382 [159 P.2d 1]; Clement v. State Reclamation Board (1950), 35 Cal.2d 628, 643 [220 P.2d 897]. We think that the implications of prejudice are at least as strong in a case such as this as in any of the cases cited.

In Berguin v. Pacific Elec. Ry. Co. (1928), 203 Cal. 116, 118-121 [263 P. 220], it was held that comments by the trial court in the jury’s presence which indicated his doubt of the necessity of helping the injured plaintiff to the witness chair, were prejudicial and constituted reversible error. The opinion comments (pp. 120-121), that “It needs no citation to convince any unbiased observer that a jury has both ears and eyes open for any little word or act of the trial judge from which they may gather enough to read his mind and get his opinion of the merits of the issues under review. . . . The above error must, therefore, be held sufficient in and of itself under the circumstances of this case to compel a reversal of the judgment. . . .” (See, also, People v. Williams (1860), 17 Cal. 142, 147; People v. Mahoney (1927), 201 Cal. 618, 626-627 [258 P. 607]; People v. Frank (1925), 71 Cal.App. 575, 581-582 [236 P. 189]; People v. Robinson (1946), 73 Cal.App.2d 233, 237 [166 P.2d 17]; Citti v. Bava (1928), 204 Cal. 136, 138-139 [266 P. 954]; Steele v. Wardwell (1943), 57 Cal. App.2d 642, 648-652 [135 P.2d 628], in which the appellate court commented, “This was a close case and the statements made by the court may well have been the determining factor. In our opinion, the entire case should be reversed . . .”; Anderson v. Hagen (1937), 19 Cal.App.2d 714, 726 [66 P.2d 168], in which the court reversed, saying, “Because the evidence on this vital point was in direct conflict, the error of admitting this [hearsay] testimony cannot be said to be without prejudice”; Curtis v. McAuliffe (1930), 106 Cal.App. 1, 8 [288 P. 675]; Taylor v. Aetna Life Ins. Co. (1933), 132 Cal.App. 434, 439 [22 P.2d 775].)

Plaintiff urges that the trial court’s action in denying defendant’s motions for mistrial and for new trial, made upon the ground of misconduct of plaintiff’s counsel in moving to amend in the presence of the jury establishes the absence of prejudice to defendant (see Cope v. Davison (1947), 30 Cal. 2d 193 [180 P.2d 873, 171 A.L.R 667].) However, as held in Citti v. Bava (1928), supra, 204 Cal. 136, 140, “While it is true that the conclusion of the trial court on the motion for a new trial is entitled to much consideration its decision thereon is not conclusive on appeal.”

There is no contention that the making and granting of the motion, under the circumstances shown, can be justified as a permissible request for, and making of, comment on the evidence. (See Cal. Const., art. VI, § 19.)

The judgment is reversed and the cause remanded for a new trial.

Shenk, J., Edmonds, J., and Spence, J., concurred.

1 "Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right of remedy in eases of personal injury to railway employees shall apply. ...”

2 Such instructions include the following: “You will distinctly understand that in this charge the Court is in no manner or form expressing, or desires to express, any opinion on the weight of the evidence, or any part thereof; nor does the Court express any opinion as to the truth or falsity of the testimony of any witness; nor does the Court in any manner or form express its opinion that any alleged fact in this ease is or is not proven. With questions of fact, the weight of evidence, the credit that you should give to any witness sworn in the case, the Court has nothing to do. These are matters entirely within your province, and which you, as jurors, under your oaths, must determine for yourselves. ...

“If the judge of this Court has at any time during this trial used any language, or has seemed to you to indicate the opinion of the judge as to any question of fact, or as to the credibility of any witness, you must not be influenced thereby, but must determine yourselves all questions of fact without regard to the opinion of anyone else.

“The Court charges you that you are not to use in the consideration or determination of any facts in the case any reference to or comment on the evidence which may have been made by the Court during the course of the trial, in connection with the admission of testimony or otherwise. The determination of the facts of the case is solely within your province, and you are not to be assisted or influenced in any way by anything which the Court may say or do in that behalf. . . .

“It is for you alone to judge of the credibility of the witnesses, the weight to be given the evidence offered, and its effects, and its conelusiveness, to establish any fact for which it has been offered. . . .

“. . .1, of course, do not know whether you will need instructions on the measure of damages, and the fact that they have been given to you must not be considered as intimating any opinion of my own on the .issue of liability or as to which party is entitled to your verdict. . . .

“You are instructed that the law prescribes no definite measure of damages, but the law leaves such damages to be fixed by you as your discretion dictates and as, under all the circumstances, may be just and proper. It is not necessary, therefore, that any witness should have expressed an opinion as to the amount of such damages, if any, sustained by plaintiff, but it is for you, the ladies and gentlemen of the jury, to make such estimate of the damages, if any, from all of the facts and circumstances revealed by the evidence, and by considering them in connection with your own knowledge and experience in the affairs in life.”