Benton v. C. G. Willis, Inc.

HiggiNS, J. During the trial the defendant entered four exceptions, all unnumbered. In sequence they are: (1) To the overruling of the [169] motion to nonsuit at the close of the plaintiff's evidence; (2) to the overruling of the motion repeated at the close of all the evidence; (3) to the refusal of the court to set the verdict aside; and (4) to the judgment. All other exceptions appear for the first time in the assignments of error, of which there are seven. Assignment No. 1 is based on Exception No. 2, to the refusal to grant the nonsuit at the close of all the evidence. Assignments 2, 3, and 4 relate to the court’s charge. The record fails to disclose any exception to the charge, or to mark out any part thereof which is deemed objectionable. The fifth assignment is to the refusal of the court to set the verdict aside. The sixth is to that part of the judgment which refers to matters submitted to the court under the stipulations relating to maintenance and cure, and the seventh is to the entry of the judgment. Assignments 2, 3, and 4, not being supported by previously noted exceptions designating the objectionable parts of the charge, must be disregarded. Rule 19(3), Rules of Practice in the Supreme Court, 221 N.C. 554, and annotations thereunder. Bulman v. Baptist Convention, 248 N.C. 392, 103 S.E. 2d 487; Holden v. Holden, 245 N.C. 1, 95 S.E. 2d 118; Rigsbee v. Perkins, 242 N.C. 502, 87 S.E. 2d 926; Fuquay v. Fuquay, 232 N.C. 692, 62 S.E. 2d 83. Assignment No. 5, based on the refusal to set the verdict aside, was addressed to the discretion of the court and is not reviewable. Assignment No. 1, based on the court’s refusal to nonsuit at the close of all the evidence, and Assignments Nos. 6 and 7, relating to the entry of the judgment, properly present the only questions which need be considered on this appeal. The plaintiff brought this action in the State court. However, its purpose is to enforce rights arising under Federal law. See Merchant Marine Act of 1920, 46 USCA, § 688, known as the Jones Act; The Federal Employers’ Liability Act, 45 USCA, §§51-60, made applicable to the Jones Act cases; Article III, Section 2, United States Constitution, as to admiralty and maritime jurisdiction. The Federal substantive lawQnust control decision in this case. Bailey v. Central Vermont Railway, Inc., 319 U.S. 350, 87 L. ed. 1444; Maynard v. R. R., 251 N.C. 783, 112 S.E. 2d 249. Contributory negligence mitigates the damages but does not bar recovery. The sufficiency of the evidence to go to the jury is determined according to the test laid down by the Federal courts. The Federal Employers’ Liability Act applicable to merchant marine cases has been the subject of repeated decisions by the Supreme Court of the United States. A recent decision gives us the following rule: “Un [170] der this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including.the employee’s contributory negligence. . . . The law was enacted because the Congress was dissatisfied with the common law duty of the master to his servant. . . . The employer is stripped of his common law defenses and for all practical purposes the inquiry in these cases today rarely presents more than the single question whether the negligence of the employer played any part, however small, in the injury or death which is the subject, of the suit.” Rogers v. Missouri Pacific R. R., 352 U. S. 500, 1 L. ed. 2d 493. In Butler v. Whiteman, 356 U.S. 271, 2 L. ed. 2d 754, the court, on evidence not as strong as presented here, nevertheless held it suf.ficient to present a case for the jury. In that case the negligence principally relied on was failure to provide a gangplank for use of the crew in boarding and leaving the vessel. See also, Schulz v. Pennsylvania R. R., 350 U.S. 523, 100 L. ed. 668; Davis v. Virginian R. R. Co., decided by the U. S. Supreme Court on January 25, 1960, 4 L. ed. 2d 366, 80 S.Ct. 387. Application of Federal rules, therefore, compels us to hold the evidence presented in this case was sufficient to go to the jury, both as to unseaworthiness of the vessel and as to the negligence of the owner. A favorable holding on either issue will support the verdict. The unseaworthiness complained of consisted of the placing of the pipe on the gunwale and the failure to provide gangplank, ladder, or other device by which the crew might board and leave the vessel in safety. These matters are, also, alleged as owner negligence. The evidence was sufficient to go to the jury and to sustain its findings. The parties, by consent, withdrew from the jury other matters involved in the case. They made stipulations as to facts which were withheld from the jury and submitted to the court for its determination. The parties appear.now to be in dispute as to the meaning.of these stipulations. The defendant contends that the payment of wages of $3,488 should be deducted by the court from the jury’s award. This contention is not supported by the record. The jury took into account the stipulation as to payments. The court charged as follows: “It is stipulated that the plaintiff has received the following wages: From the date of the accident, March 15, 1956, until February 15, 1958,. full wages.or salary; and.further that he received two-thirds [171] wages or salary from February 16, 1958, to September 15, 1958. You will take that into consideration when you fix such damages as you may fix for loss of past earning power.” At first this was treated as a compensation case.- Insofar as the jury was concerned, no amount was stipulated as having been received. The amount was the basis of a stipulation for the court and not for the jury. The parties, by stipulation, left to the court decision of the cause of action for maintenance and cure. The court made its findings and rendered a judgment for $1,000. We have no more right to disturb that finding -than we do to disturb the jury’s finding. By reason of the stipulation to leave the matter to the court, the court’s findings have the same force as a verdict of the jury. There seems to be a conflict in the stipulations as to final date on which wages were paid. Stipulation 6 says two-thirds wages were paid to September 15, 1958. Stipulation 11 says compensation ended on September 5, 1958. The court, in its charge, gave the defendant the benefit of having paid wages to the later date. The record as presented to us fails to show anything of which the defendant may justly complain. No error.