United States v. State Road Department of Florida , 189 F.2d 591 ( 1951 )

HOLMES, Circuit Judge

(dissenting).

The agents of the government in charge of the ships that damaged the bridge, I think, were held to too high a degree of care. The officers and men, in the performance of their respective duties upon these ships, were required to exercise only the care and skill that ordinarily prudent and competent seamen, in similar circumstances, would have exercised for the protection of their own property. The court below held that they did this, but thought a higher standard of skill and care was required of them. This court is reversing the trial judge’s opinion as to' the law of the case, but not correcting the harm that resulted from the application to the facts of an erroneous legal principle. The misapplication of the principle resulted in a judgment for the plaintiffs below when otherwise, the court said, judgment should have been for the defendant. To say that this was a harmless error is not in accord with my view of the situation, when application of the correct principle would have brought about a wholly different judgment. An error that changes the result of a lawsuit involving hundreds of thousands of dollars is not harmless to the losing litigant, and should be corrected on appeal.

Rehearing denied; HOLMES, Circuit Judge, dissenting.