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District Court of Appeal, First District, Division 2, California.


Civ. 14209.

Decided: July 06, 1950

Williamson & Wallace, San Francisco, Brobeck, Phleger & Harrison, San Francisco, for appellant. Hoberg & Finger, San Francisco, Henry G. Sanford, San Francisco, for respondent.

In this action, brought under the Jones Act, 46 U.S.C.A. § 688, respondent recovered a $75,000 verdict. A new trial was denied.

Respondent was employed by appellant as the operator of the ‘Moore No. 2’, a tugboat 45′10″ in length, and of 12′9″ beam. She was used to tow small craft, to place barges alongside hulls under repair at appellant's shipyards in the Oakland Estuary, and to go wherever needed around San Francisco bay. Respondent worked in the yard as a rigger when not running the tug; while employed as a rigger a whistle would be blown if he was needed on the tug and he would drop his rigging work and take to the water. The record shows that his 40-hour week was split approximately 24 hours as tug captain and 16 as rigger. He was paid $1.80 an hour as captain and $1.54 as rigger. He took his orders from the rigging department. At times a deck-hand assisted on the tug, but at other times respondent handled her alone, all according to the task.

On May 2, 1947, respondent was ordered to go across to the San Francisco waterfront and pick up appellant's 66 foot derrick-barge. He took the tug across the bay, picked up the barge which was loaded with scrap steel, towed her back to appellant's shipyards on the estuary, tied her to a dock where the steel was unloaded, and was engaged in berthing her at her regular mooring when the accident happened. The deck-hand had made the barge fast and respondent was maneuvering the tug so as to shove the barge sideways against the dock. Respondent's account is: ‘I headed for the barge and when I got fairly close I tried to get the tug out of gear but it [the clutch] stuck again and while I throttled down as low as possible I still hit the side of the barge while in gear.’ (According to his statement he had had trouble with the clutch sticking for some time and had reported its condition, but nothing had been done about it.) He then jumped from the tug onto the barge and made the line fast from the bow of the tug to the barge. In getting back onto the tug he fell feet first between tug and barge, grabbing hold of the barge before hitting the water, but the tug swung in toward the barge and respondent's left leg was pinned between the two vessels and very badly crushed.

Appellant presents eight points on this appeal, namely, (a) that the court had no jurisdiction of the subject-matter of the action; (b) that it abused its discretion in denying defendant's motion to amend its answer; (c) that it erred in denying a nonsuit; (d) that there was prejudicial misconduct of counsel in unduly emphasizing insurance coverage; (a) that there was an abuse of discretion in granting leave to amend the complaint to increase the prayer from $50,000 to $75,000 in view of the lateness of the application and of appellant's insurance coverage; (f) that there was prejudicial misconduct in moving to amend the complaint in the presence of the jury; (g) that the evidence was insufficient to support the jury's finding that appellant's negligence (if any) was the proximate cause of the accident, and (h) that the damages are so excessive as to indicate that the jury failed to apply the rule of comparative negligence.

(a) The jurisdictional question: Appellant contends that the court had no jurisdiction of the subject-matter of this action because respondent's status was that of a harbor worker and as such he was within the coverage of the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1424, ch. 509, 33 U.S.C.A. § 901, § 905 of which declares the remedies of the act to be exclusive.

Section 902 of the act provides that ‘(3) The term ‘employee’ does not include a master or member of a crew of any vessel * * *' and § 903 provides 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 * * *.’ Respondent claims that since he was master of the tug, §§ 902–903 excluded him from the coverage of the act, wherefore the Jones Act was open to him and the court had jurisdiction.

Appellant relies mainly on Moore Dry Dock Co. v. Pillsbury, 9 Cir., 1938, 100 F.2d 245, and stresses the coincidence that the tug now in question was the tug therein involved, and that that case determined that the persons employed on her were not seamen but harbor workers.

The Pillsbury case settled the status of nobody but Howland, a deckhand, who when drowned was engaged in repairing the tug boat while she was tied up at appellant's shipyard dock. The question was whether he was a member of her crew or a harbor worker. No such question is now presented since respondent was admittedly the master of the ‘Moore No. 2’ and actively engaged when injured in navigating her. See Norton v. Warner Company, 321 U.S. 565, 64 S.Ct. 747, 751, 88 L.Ed. 931 for a discussion of the difference in status between persons ‘loading, unloading, refitting, and repairing ships' and those aiding in their navigation. See, also, Smrekar v. Bay & River Nav. Co., 69 Cal.App.2d 654, 160 P.2d 85.

Appellant's counsel in his opening statement admitted that respondent ‘was the operator in charge of the tug, and he was in law what would be called a ‘master’ * * *.' This means that he was a seaman having command.

In Warner v. Goltra, 1934, 293 U.S. 155, 159, 55 S.Ct. 46, 48, 79 L.Ed. 254, 257–258, Goltra was the master of a tug-boat operating on the Ohio River. At the time he met his death a pilot was at the wheel because Goltra held no license for those waters. Goltra's dependents sued under the Jones Act and a general demurrer to their complaint was sustained on the ground that a ‘master’ was not a ‘seaman’ within the meaning of that act. The judgment for defendant owner was affirmed. On certiorari the state court's decision was reversed, the Supreme Court of the United States holding that masters are ‘seamen having command.’

There are three, but only three, factual differences between that case and this. First, Goltra held no license, while respondent held one. Second, Goltra at the time was not operating his tug while respondent when injured was actively in control of his. But these two differences only make the instant case the stronger of the two. Third, respondent worked part time as a rigger. The record shows that he spent approximately three-fifths of his time running the tug and two-fifths as a rigger. This circumstance does not change his status since he was on active duty as master when injured, Long Island R. Co. v. Lowe, 2 Cir., 145 F.2d 516, 518, and exposed to the hazards of a seaman, not a rigger. Had he been injured ashore while working as a rigger a different problem would be presented.

The Goltra case is cited in South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251, 259, 60 S.Ct. 544, 547, 84 L.Ed. 732, 737, and in the Norton case, supra, each of which involved the question whether the employee was the ‘member of a crew’, and both of which distinguish the Pillsbury case. In doing so the Bassett case speaks of persons whose services on a vessel are ‘of the sort performed by longshoremen and harbor workers and thus distinguished from those employees on the vessel who are naturally and primarily on board to aid in her navigation.’

There is no essential difference between this and the Goltra case, and upon its authority we must hold that in denying appellant's motion to dismiss for lack of jurisdiction the court ruled correctly.

(b) The motion to amend the answer: The complaint alleged in paragraph I ‘That this action arises under Section 33 of the Merchant Marine Act of 1920, 46 U.S.C.A. 688 * * *.’ and in paragraph IV: ‘That at all times herein mentioned, plaintiff was employed as a seaman by defendant, and was at all times herein mentioned acting in the course of his said employment.’ The answer expressly ‘Admits the allegations of Paragraph I * * * and IV of plaintiff's complaint.’

After a week of trial appellant orally moved to amend the answer by changing to a denial its admission that plaintiff was a seaman and at all times acting as such, on the ground that it would be ‘in conformance with the testimony introduced by the plaintiff.’

The judge remarked: ‘* * * I am ruling that you cannot amend your answer under this set of facts that have gone in so far * * *.’ (Emphasis added.) This indicated that his action was not based on any technical or procedural ground, but solely on the testimony, which showed beyond dispute that respondent was the tug's master and therefore a seaman, Goltra case, supra, just as pleaded and admitted.

Moreover, the ruling could not have been erroneous since the answer contains other admissions not sought to be converted into denials. In paragraph III it alleges ‘that plaintiff as Master of said tugboat’ had certain duties to perform. In paragraph IV ‘defendant admits that * * * plaintiff was employed by defendant as operator and Master of said tugboat.’ In paragraph V defendant affirmatively alleges ‘That, while plaintiff was Master of said tugboat * * * said tugboat was engaged in mooring a barge * * * and plaintiff was in charge of said operations; * * *.’

There was no error in denying the motion.

(c) The motion for nonsuit was based on the ground that respondent was not a seaman. For the reasons first discussed, and on the same authority, it was properly denied.

(d) The insurance question: It is claimed that ‘Plaintiff's counsel was guilty of deliberate and gross misconduct in unnecessarily emphasizing, in the presence of the jury, that defendant's potential liability was covered by indemnity insurance’.

Early in the case there was testimony as to the visits of insurance adjusters to appellant's shipyard to examine the clutch, which testimony was partly in response to questions by respondent's counsel under § 2055, and partly to questions by appellant's own counsel. We do not understand appellant to attack this testimony as it came out rather incidentally and to some extent because of appellant's own questions. The real attack is centered on the cross-examination of the witnesses Goodenough and Rose.

The former was called by appellant to prove certain statements made by respondent in the hospital a few days after the accident with respect to the details thereof. The first question of appellant's counsel brought out that he was a claims adjuster then with the Hartford but formerly with Pacific Employers Insurance Company. Appellant's counsel then stipulated that when the witness interviewed respondent he was working for Pacific.

Respondent's counsel on cross-examination brought out, without objection, that Pacific was appellant's insurance carrier. Then ensued a series of questions designed to show that at that interview the witness represented Pacific, not respondent. It culminated in the answer ‘At all times that I worked in the Moore Dry Dock I attempted to handle the claims on an overall basis; that is, if the man had something coming I was there primarily to see that he got it; I wasn't there to beat him out of it. * * * I explained to Mr. Sanguinetti that there was a voluntary compensation endorsement on the policy that provided for compensation benefits, and it was up to him to make an election, whether he wanted to accept the compensation benefits * * * or whether he wanted to pursue his rights under the Jones Act. I explained to him what his rights under the Jones Act were.’

It is now urged that ‘plaintiff's counsel unnecessarily mentioned, reiterated and worried the fact of defendant's insurance coverage * * *.’ It is true that respondent's counsel mentioned Pacific by name eight times during Goodenough's testimony, but appellant's counsel himself mentioned it by name three times. If it is now claimed that the questions were repetitious the answer is that appellant did not even invoke the old, familiar objection ‘already asked and answered.’ Such objections as appellant did make were not on the ground that respondent had improperly injected ‘insurance’ into the case or unduly emphasized it. They were on entirely different grounds. There was no assignment of misconduct, or even a suggestion of it.

It must be remembered, also, that the examination embraced workmens' compensation as well as liability insurance, and it appears that Pacific was appellant's carrier on both, although the transcript does not show its limit of liability. Appellant's brief volunteers that such limit was $50,000.

The witness Rose for the defense testified that he was an investigator employed by Brown Brothers and in May, 1947, made an investigation of respondent's injury. On cross-examination he was asked as to Brown Brothers' functions and answered ‘We do investigational work for insurance companies and for attorneys on occasion.’ He testified that he was put on this case by Goodenough and that he ‘asked me to report to the Pacific Employers Insurance Company.’ ‘Q. In other words, you were then an investigator employed through Brown Brothers by the Pacific Employers Insurance Company, were you?’ Appellant's objection ‘as assuming something * * * contrary to the evidence’ was overruled, the court remarking ‘he would have a right to show the real concern.’ ‘Q. Were you working on behalf of the Pacific Employers Insurance Company in the last analysis? [no objection] A. I suppose so. I reported to them.’ He testified that he had worked on other cases for Pacific—he assumed not more than 10 or 12 a year.

The ruling could not have been erroneous since in addition to the court's reason that respondent was entitled ‘to show the real concern’ the preceding and succeeding questions and answers both identified him definitely with Pacific.

‘Insurance’ was not injected into this case by respondent and we do not understand appellant to so contend. The subject found its way in through the testimony of the early witnesses who were appellant's employees, who testified that the insurance adjusters came to the shipyard to check on the clutch. Its entry was in a manner which was incidental and not designed to smuggle contraband into the case, see Duffey v. General Petroleum Corp., 93 Cal.App.2d 757, 209 P.2d 986. In Goodenough's testimony Pacific was first named in answer to the first question asked by appellant's own counsel, followed by a stipulation proffered by him. After that respondent clearly had the right on cross-examination to find out just who Pacific was, and he did so by a question to which there was no objection.

The inquiries (admittedly repetitious) whether Goodenough represented the insurance carrier or the respondent when he talked to the latter and tried to get a release from him, could not have begotten error since appellant's counsel had stipulated that he was then working for Pacific. There was no objection to their repetition and no assignment of misconduct.

The failure to object to the questions put to Goodenough and Rose leaves appellant without any solid ground on which to urge error on appeal, 24 Cal.Jur. ‘Trial’ § 59, p. 777; 10 Cal.Jur. 10 yr. supp. p. 654; Duffey v. General Petroleum Corp., supra—which also involved ‘insurance’.

This applies as well to appellant's contentions respecting misconduct. There was no assignment of misconduct or irregularity either coupled, or not, with a request for an instruction to disregard it, during the entire course of the Goodenough-Rose examination, hence error cannot be urged on appeal, Cope v. Davison, 30 Cal.2d 193, 202–203, 180 P.2d 873, 171 A.L.R. 667; Murphy v. Zwieg, 100 Cal.App. 266, 269, 279 P. 1062, and its citations,—another ‘insurance’ case.

Appellant complains especially of the question ‘And if any loss occurred there due to unseaworthiness of the vessel, or due to the negligence of a fellow employee, the one who would pay the loss would be the Pacific Employers Company?’ which was answered ‘that would be correct.’ There was no objection.

It is argued that appellant's coverage was $50,000 and no more, but that the prayer had been already amended to demand $75,000 which gave the jury the impression that appellant was covered up to $75,000. The answer to this is that the time to have objected to this question was when it was asked. 24 Cal.Jur. p. 777, supra.

The authorities which we have cited under ‘The insurance question’ were all cited by respondent. Appellant in its closing brief makes no attempt to answer them.

The court gave the following instruction at the end of the case: ‘In the examination of prospective jurors * * * questions were asked by counsel to learn whether any juror had had an interest in a casualty insurance company. This was done for the sole purpose of discovering if any of you had a biased view point. You are reminded that no insurance company is a party to this action, and whether either party is insured has no bearing whatsoever on any issue that you must decide. Therefore, the oath that you took as jurors requires that you refrain from any inference, speculation, or discussion about insurance.’ (Emphasis added.)

We find no error whatever under this head.

(e) The amendment of the complaint: At the conclusion of plaintiff's case in chief counsel moved to amend the prayer so as to demand $75,000 instead of $50,000. Abuse of discretion is claimed because of the delay in moving, and ‘in view of the circumstances respecting defendant's insurance coverage.’

Such a motion, of course, is addressed to the sound discretion of the court. 21 Cal.Jur. p. 181. The cases have used some strong language with respect to amendments. As early as Stringer v. Davis, 30 Cal. 318, 321, the Supreme Court expressed itself in no uncertain terms on the subject of liberality in granting amendments. In Guidery v. Green, 95 Cal. 630, 633, 30 P. 786, 787, the court said: ‘It can very rarely happen that a court will be justified in refusing a party leave to amend his pleading so that he may properly present his case * * *.’ The same language is repeated in Crosby v. Clark, 132 Cal. 1, 8, 63 P. 1022, and in Carter v. Lothian, 133 Cal. 451, 452, 65 P. 962. In the latter case it is said: ‘This court has frequently reversed for refusing to allow amendments to pleadings, but not for granting amendments.’ In Rabe v. Western Union Tel. Co., 198 Cal. 290, 299, 300, 244 P. 1077, 1080, it was said: ‘Especially should liberality be exercised in favor of allowing the amendment where * * * the amendment would not state a new or different cause of action from that attempted to be stated in the original complaint.’ It is clear, of course, that an amendment to increase the demand does not touch the cause of action itself. Babcock v. Jewell, 110 Cal.App. 323, 294 P. 30.

In Fetterley v. Gibson, 210 Cal. 282, 283, 291 P. 411, 412, the court went as far as to say: ‘The allowance or refusal of amendments is a matter so largely within the sound discretion of the trial court that its exercise will not be disturbed in the absence of a showing of gross abuse.’ (Emphasis added.)

As to the delay: Appellant points out that the amendment was contemplated before the trial opened and should have been requested then instead of waiting until plaintiff's case was in. ‘The fact that the new matter may have been known to the applicant at the time of filing his originasl pleading is not sufficient ground for denying the right to amend.’ Kroplin v. Huston, 79 Cal.App.2d 332, 340, 179 P.2d 575, 580, and its citations, including 21 Cal.Jur. p. 191, § 133. (Emphasis added.) Besides, there was no new matter.

As to insurance coverage: Appellant's brief tells us that it carried liability insurance up to $50,000, although this is not shown in the transcript and would hardly have been admissible as a piece of evidence. From appellant argument on insurance-emphasis it is manifest that appellant would have stoutly objected to its admission had that been attempted. When the motion to amend was under discussion in chambers the judge was informed by appellant's counsel that it was not covered beyond $50,000, and that fact was urged as a reason for denying the motion, since the increased demand for 50% more than the coverage would put an entirely new face on the situation. The insurance carrier of course was not a party (and the jury were thereafter so instructed); appellant was the only party defendant before the court from first to last and a motion such as this, if otherwise allowable, could not have been denied on any such ground or consideration. No authority is cited to sustain appellant's argument and we doubt if any can be found.

There was no abuse of discretion in granting leave to amend.

(f) The claimed misconduct in moving to amend in the jury's presence: The record shows:

‘Mr. Hoberg: * * * 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: I desire to argue that matter in chambergs and reserve the right at this time to move for a mistrial 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.’

In chambers counsel argued, as they do now, that the effect of granting the motion would be to convey to the jurors the impression that the judge though the plaintiff should recover and ‘that the verdict should be in excess of $50,000 and not in excess of $75,000’, and that such impression could not be effaced or neutralized since the damage had been done when the motion was made. Further, that the manner in which the motion was made showed it was deliberate and purposeful and no mere thoughtless slip.

It has to be admitted, however, that even assuming the motion had been made out of the jurors' presence, and granted, they would still have learned from the instructions that plaintiff's demand was $75,000 rather than $50,000. Appellant concedes that the ‘tactic’ of letting the jury know the amount sued for through the medium of an instruction ‘is sanctioned by usage in California.’ But, more than that, it is sanctioned by direct authority. In Lahti v. McMenamin, 204 Cal. 415, 421, 268 P. 644, 646, the court found it ‘difficult to understand how a jury * * * can be properly instructed’ without such an instruction. That case recognizes a division of opinion in the United States, but says that the weight of authority countenances such an instruction. Other California cases are cited in McNulty v. Southern Pacific Co., 96 Cal.App.2d 841, 216 P.2d 534.

Buswell v. San Francisco, 89 Cal.App.2d 123, 133, 200 P.2d 115, 121, is cited by appellant because it appears therein that the prayer was originally for $20,000, and ‘At the end of the trial and in the absence of the jury, plaintiffs moved to amend’ to $30,000. It is argued that the court was careful to point out that it was in the absence of the jury, consequently that that was relevant and important, otherwise ‘the court would hardly have taken pains to note’ it. By necessary implication, it is argued, the case is strong authority that it is prejudicial error to grant such a motion when made in the jury's presence. Obviously the question was not, and could not have been, before the court. The real question therein arose because after the motion was granted no written amendment was filed. The statement by the court that the motion was made out of the jury's presence was of no significance but simply rounded out the court's narrative of the facts. It could not by implication or otherwise have laid down any rule of law on a point which was not presented. The opinion, 89 Cal.App.2d on page 133, 200 P.2d 115, shows the two points which were presented.

Misconduct was first brought up when defendant's counsel requested an adjournment to chambers. It was next considered by the judge when the motion was made for a mistrial. His denial thereof impliedly held that he did not consider it had been made in bad faith or was prejudicial. On appellant's motion for new trial the opportunity to pass on this question was again presented, and the judge again ruled favorably to respondent.

Respondent in his brief pointed out that appellant had cited no California authority holding it to be misconduct to make such a motion in the presence of the jury, or any case from any other jurisdiction so holding. Presumably in response to that comment appellant in its closing brief cites four New York cases.

In Sohman v. Metropolitan Street Ry. Co., 56 Misc. 342, 106 N.Y.S. 1033, the motion to increase the prayer was made out of the jury's presence. The granting of it was held to have been within the court's discretion. The case decides nothing touching the instant problem.

The decision in Kenney v. South Shore etc. Co., 126 App.Div. 236, 110 N.Y.S. 503, 504, seems to have turned on the delay in making the application to amend and the absence of any showing. The court said: ‘The record before us does not disclose any ground whatever upon which plaintiff based this application; nor is there anywhere, either in the recital of the application itself or 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.’ There is a strong indication in the opinion of a rule that such applications must be made at Special Term, and that the failure to make it there was unexplained. We, of course, have no such rule. There was a dissenting opinion. It is true, as appellant's brief shows, that the court commented on the motion having been made in the presence of the jury, and the possible implications and inferences which they might have drawn from the court permitting the increase (as heretofore discussed) but it does not follow that the reversal was based on the ground that the motion was made in the jury's presence.

Sandresky v. Erie R. Co., 91 Misc. 67, 153 N.Y.S. 612, holds (syllabus): ‘In an action for personal injuries to a physician, and damage to his automobile * * * where plaintiff had fully recovered, and had had his car repaired before the complaint was filed, it was error to permit him at the trial, without any affidavit therefor, to amend his complaint so as to increase the amount of damages claimed.’ It is true the opinion concludes as follows: ‘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. If such stipulation is made, then the judgment, as so modified, should be affirmed, without costs.’ But there is no discussion of the presence-of-the-jury point beyond that statement, and it would seem from the whole opinion that the case did not turn on that point since the headnote gives no hint of it.

In Pfeil v. Klein, 247 App.Div. 510, 286 N.Y.S. 721, 722, the fact that a bill of particulars had been furnished adding up to no more than the $3,000 originally sued for seems to have had considerable influence on the decision. The court said:

‘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 that $3,000. This caused prejudice to defendants, which requires a reversal.’

It would appear from the New York cases that their practice is to require an affidavit showing the reasons for the amendment, and that such affidavit should be made by the applicant himself. See Fitzgerald Bros. Const. Co. v. State, 188 Misc. 940, 69 N.Y.S.2d 672.

Sawyer v. Munson S. S. Line, D.C.N.Y., 7 F.Supp. 193, simply holds (syllabus) ‘Motion to amend personal injury complaint by increasing amount of damages alleged should be made in advance of trial, not at trial.’ And the language of the opinion shows that it was upon that ground that the motion to amend was denied, not because it was made in the presence of the jury (which appears). In the opinion the court cites the Kenney case, supra. That, of course, is not necessarily the law in California. The ruling was, of course, by a trial court and in the exercise of a trial court's discretion. It was affirmed, 2 Cir., 73 F.2d 1012–1013.

Vaughan v. Magee, 3 Cir., 218 F. 630, 631, cited by appellant, simply turns on the point of letting the jury know the amount sued for. The court followed what it termed the ‘stern and unyielding’ rule which had ‘long obtained’ in Pennsylvania. That, of course, is not the California rule, Lahti v. McMenamin, supra; Buswell v. San Francisco, supra; McNulty v. Southern Pacific Co., supra.

In our opinion that claimed misconduct is the most serious question on the appeal. The trial judge himself remarked in chambers ‘It [amendment] is done everyday 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.’

Such practice is not to be encouraged, and nothing we have said is to be taken as approving it. The only question which we have to decide is whether the motion as it was made in this instance, with no more and no less said before the jury than this record shows, amounted to misconduct. The New York cases which appellant quotes, and which we quote, show the real danger—the danger of the possible transference of what might be interpreted by the jury as the judge's views as to what the verdict should be.

That the making and granting of the motion lets the jury know the amount demanded is not per se a good legal objection since the jury normally gets that figure anyway from the instructions, Lahti v. McMenamin, supra. The only question is whether the manner in which the oral motion was made gave the jury any fixed suggestion or impression of the judge's appraisement of the case. He was in a better position than we to decide that, and as said before, his rulings indicated that he did not consider it prejudicial misconduct. We repeat, the practice is not to be encouraged either as proper or safe.

(g) The contention that the evidence was insufficient to support the jury's finding that appellant's negligence (if any) was the proximate cause of the accident. The burden of appellant's attack hereunder is ‘that there are startling conflicts in plaintiff's own account’ of the cause of his injury. Such discrepancies, if any, are just as much jury questions as are conflicts and contradictions between two witnesses or two groups of witnesses. In People v. Holman, 72 Cal.App.2d 75 at pages 88–91, 164 P.2d 297, we had occasion to discuss the question of self-contradictory testimony, and to cite a number of cases on the subject.

The lengthy summary of these claimed discrepancies invites this court to pass upon the question of proximate cause—a jury question. For example counsel say ‘Leaving a moving tug pilotless in close quarters could only be justified as reasonable conduct if it were the sole expedient by which to avert a threatened disaster. Plaintiff clearly did not behave as a reasonable man in creating such a risk to persons and property.’ (Emphasis added.) An appellate court obviously can do nothing with such questions.

(h) The contention that the damages are so excessive as to indicate that the jury failed to apply the rule of comparative negligence.

The $75,000 verdict is not attacked as excessive because it is disproportionate to the plaintiff's injuries or because it shows passion or prejudice. The plaintiff was not cross-examined with respect to his injuries nor was his medical witness cross-examined, nor did defendant put on any medical evidence of its own.

The jury was out for only 35 minutes and it is argued that this shows that proper attention was not given to comparing the claimed negligence of respondent with that alleged against appellant and reducing the amount of the recovery accordingly, as well as to giving proper consideration to the question of proximate cause. It is argued, also, that the claimed error of the court in allowing plaintiff's amendment and counsel's misconduct in moving for it, improperly influenced this high verdict.

None of these arguments is sufficient, and all of them in combination are insufficient, to warrant a court on appeal in saying that the jury failed to follow the court's instructions—none of which is attacked herein.

One of appellant's subsidiary points is that the conduct of respondent's counsel in moving in the jury's presence to amend the prayer upward, coupled with their emphasis of insurance coverage, interacted with prejudicial cumulative effect. In other words, it is urged, the two in combination were prejudicial. Each of appellant's attacks has been discussed under points (d) and (f) separately, and we have found no error or misconduct in either instance. It follows that with no error or misconduct in either, there cannot be error in both on any theory of interaction, cumulation, or combination.

Another subsidiary point arises out of the Baskin case. At the first argument of this case Baskin v. Industrial Accident Commission, 89 Cal.App.2d 632, 201 P.2d 549, was mentioned. Since then this court has decided the same case the second time, Baskin v. Industrial Accident Commission, 97 Cal.App.2d 257, 217 P.2d 733. We are satisfied that the Goltra case, discussed herein under the first heading, definitely settles the status of this respondent as a ‘seaman having command’, and not as a harbor worker, hence the Baskin case has no bearing on the present problem.

We find no error at all in the record.

The judgment is affirmed.

GOODELL, Justice.

NOURSE, P. J., DOOLING, J., concur.

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