Michalic v. Cleveland Tankers, Inc.

PETITIONER:Michalic
RESPONDENT:Cleveland Tankers, Inc.
LOCATION:Mapp’s Residence

DOCKET NO.: 31
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 364 US 325 (1960)
ARGUED: Oct 20, 1960
DECIDED: Nov 07, 1960

Facts of the case

Question

Audio Transcription for Oral Argument – October 20, 1960 in Michalic v. Cleveland Tankers, Inc.

Earl Warren:

Number 31, Thomas Michalic, Petitioner, versus Cleveland Tankers.

Mr. Goldstein.

Harvey Goldstein:

Mr. Chief Justice, members of this Court.

This is a case concerning a seaman suing under the provisions of the Jones Act and for the unseaworthiness of the vessel upon which he was employed under the general maritime law.

A jury trial was held and after the plaintiff’s case was ended, a motion for a directed verdict was denied in informal language by the trial judge in saying “let’s go ahead”.

The motion for the directed verdict was again renewed at the end of the entire case, and it was granted.

The decision was affirmed by the Sixth Circuit and of course, we are here on a petition for writ of certiorari.

I don’t believe there’s any point in belaboring what must be well-known to all of us, and that is that, in cases of this type, when we are here to determine whether a district judge was correct in granting a directed verdict that the only question that should arise to that District Court Judge is whether or not there is a material issue of fact, upon which, the jury could have found in favor of the plaintiff.

All of the evidence, that is, both the plaintiff’s and in this particular case, because the directed verdict was granted at the end of the entire case, also the defendant’s evidence must be considered by the District Judge.

That evidence must also be considered in a light most favorable to the plaintiff and in addition, all inferences which may be reasonably drawn from that evidence must be considered in a light most favorable to the plaintiff.

And so, the situation becomes a comparatively easy one, and that is whether or not, considering all the evidence in this case, there was a material issue of fact which should have caused the District Judge to submit this case to the jury for its consideration.

There is no question but that this case concerned conflicting testimony.

I am not here to state that the plaintiff would have won his case had the case been submitted to the jury.

The only question here is whether or not it should have been submitted for the jury’s consideration rather than the District Judge’s consideration.

Michalic was a fireman.

He had worked for three years prior to the date of the accident for the very, very same shipping company.

He had had Buerger’s disease but for that three-year period, he claim that he was in good health, that he was able to work and in fact, some of the defendant’s witnesses testified that his work was good, that he completed his work without any particular difficulty.

In addition, testimony showed that the officers of the vessel knew that he had the Buerger’s disease condition and that they employed him in spite of that fact evidently because, and certainly we could draw the inference that he was a good workman and able to do his duties.

The lay-up period had just started.

This was a ship on the Great Lakes and as Your Honors well know, ships in the beginning of the winter season, that is the end of December, are laid up for the entire winter season to start their sailing again in the spring.

Michalic was a fireman and his area of duty was in the fire hole.

But during this lay-up period, he was ordered by his superior officer to go for the first time, he said, into the pumproom in order to help the pumpman do some work that was involved in the lay-up period.

He went into the pumproom.

He said that he was given a wrench, and I will go into the description of the wrench in a moment, a wrench and a mallet and was told what to do.

The pumpman testified pointblank that he never showed Michalic how to do the work nor did he watch him do the work, but he told him about the casing.

The casing was the machinery.

The particular pump covering that was to be taken off by Michalic loosening these 20 or so nuts from the casing itself.

Michalic stated that he worked for about an hour.

That the pumpman later came back or came back at that point from another job which he was doing and that Michalic told and complained to the pumpman about the condition of the mallet — I’m sorry, about the condition of the wrench.

And the pumpman told him, “Never mind that.

Harvey Goldstein:

Go ahead and complete the job.

Do the best you can,” I believe were his exact words.

And Michalic did continue the job and finally completed the job.

At that point, the pumpman came out —

William J. Brennan, Jr.:

Did that testimony that you rely on acquitted in the jury trial?

Harvey Goldstein:

That is part of the testimony, sir, that I do rely upon.

William J. Brennan, Jr.:

Was — this is at 11, this wrench keeps slipping off, is that it?

Harvey Goldstein:

That is — that is correct.

That’s part of it.

William J. Brennan, Jr.:

And what else besides that?

Harvey Goldstein:

The fact that he stated that the wrench was battered and beaten, the fact that it was stated that the wrench is worn, the fact that it was stated that the wrench was old, the fact that the wrench was stated to be all-chewed up on the end —

William J. Brennan, Jr.:

Did he say “all chewed —

Harvey Goldstein:

And not very good.

William J. Brennan, Jr.:

Where does — where does it say “all chewed up”?

Harvey Goldstein:

On page 10, I believe, sir, of the record.

William J. Brennan, Jr.:

Oh yes, I have it.

Thank you.

And now, all of this testimony on which you relied on raise the jury questions in the petitioner’s testimony, is it?

Harvey Goldstein:

The petitioner’s testimony and one witness by the petitioner, and I will get to that witness’ testimony in a moment.

We believe that all of that descriptive testimony concerning the condition of the wrench was sufficient to permit a submission of the case to the jury for its consideration.

May I point out the similarity of the language used by the petitioner and by his witness to the language used in the Jacob case by this Court.

In the Jacob case, in which this Court stated that there was sufficient evidence to permit submission of the case to the jury, there is this language “Petitioner used an S-shaped end wrench of the proper size which was “well-worn,” had seen a lot of service, “was a loose fit,” had a lot of play on it.

“It was worn.”

The play at the end was about an inch.”

And I think that our language is very similar.

In addition, there was a question of a safe place to work.

Michalic testified that in order to get down to the area of the pump he had to climb down from a catwalk which was at thwart ship, placed the thwart ship through the pumproom and “in between four beams which held this pump in order to stop it from vibrating and they work in an area of approximately six inches.”

Other witnesses testified that it might have been as much as 16 inches, but in no case did any witness testify either less than 6 or more than 16.

In addition to that, the defendant put into evidence three exhibits showing the entire pumproom area and certainly, the particular pump itself.

The third question of course is whether or not there was sufficient instruction or, in fact, any instruction on the use of the method to be used by Michalic in taking the nuts off the casing and also whether or not there should’ve been supervision in asking a man, concededly inexperienced, to do work with special tools which he had never done before and in an area which he had never worked in before.

Harvey Goldstein:

We state, and it is our belief, that the evidence is at least sufficient to have submitted this matter to the jury for its consideration.

The District Judge, in denying the case, stated simply that he had seen the area in which Michalic had to work from the pictures.

And he stated, as the reason for his conclusion of fact, and I state that it was his conclusion of fact, that Michalic was, in fact, given a safe place to work was that “Well, the pumpman did similar work on another pump.

If he could’ve gotten to his pump, why couldn’t Michalic get to his?”

Of course, there was no evidence in the record that the pumps were in the same or in any similar place in the pumproom itself.

This was simply a statement by a judge going completely outside the record to assume that two men were doing similar work when, in fact, there was no evidence of that type in the record itself.

As far as the question of instruction and supervision of Michalic, the judge said, the District Court Judge that is, said that this isn’t necessary.

He might not have been experienced, but experience isn’t needed here.

Now, I submit that that question is, again, a question of fact which should have been submitted to the jury for its consideration and not by the District Court judge.

Charles E. Whittaker:

What was he to understand that what happened is that the petitioner, while attempting to lose these nuts with this wrench, pounding against the handle with a mallet, knocked it out off his hands, it slipped off the nut and fell on his toe, is that it?

Harvey Goldstein:

With — with one minor point, sir.

Charles E. Whittaker:

Yes.

Harvey Goldstein:

He doesn’t — he does not claim that the hitting of the mallet against the wrench knocked the wrench out of his hand.

He claims that, because the wrench could not hold against the nut, it slipped.

Charles E. Whittaker:

Well, you don’t stand by that?

Was he not holding onto the wrench?

Harvey Goldstein:

Yes, he is holding onto the wrench, but it was the slipping — it was the slipping of the wrench off the nut itself —

Charles E. Whittaker:

It was against the nut and it slipped.

Harvey Goldstein:

That caused the wrench to slip.

Charles E. Whittaker:

Had slipped off the nut, as in here, it was knocked out off his hands, at the same time, it fell on his toe.

Harvey Goldstein:

That is correct, but it was the — he claims that it was the slipping of the wrench off the nut that caused the wrench to slip out of his hand not the mere fact that he simply let go of the wrench.

There is no claim of that sort in the case.

I — I wish to make that distinction, sir.

Now, in addition to the other three questions as to whether or not the tool was in fact effective, whether or not Michalic was given a safe place to work, and whether or not there should have been some instruction and supervision of the work, there is the question of a witness and the witness was the second mate aboard the vessel who testified for the plaintiff.

He was also the master of the vessel the year after or two years after.

And the witness on direct testimony stated, in similar terms, his conclusions that the wrench was defective in the sense of describing the wrench as beaten and battered as usual.

He stated that he knew the pumproom area.

He stated that he knew the tools.

Now, on direct —

William J. Brennan, Jr.:

I don’t quite get that.

William J. Brennan, Jr.:

How — how is he hitting this with a mallet, on the top of the handle?

Harvey Goldstein:

No, no I would assume on the side, sir, in order to loosen the nuts in an opening position.

William J. Brennan, Jr.:

Well, what does the evidence show?

How was the wrench, was it perpendicular or horizontal?

Harvey Goldstein:

I don’t know, sir.

The — the record itself doesn’t particularly point out in —

William J. Brennan, Jr.:

But who was wheeling the mallet?

Harvey Goldstein:

He was.

He was wheeling the mallet.

Holding the wrench in one hand and wheeling the mallet in the other.

William J. Brennan, Jr.:

And you don’t know what — was he —

Harvey Goldstein:

Well —

William J. Brennan, Jr.:

— putting it this way or (Voice Overlap) —

Harvey Goldstein:

My — my impression of the — of the record was simply, sir, that he was holding the mallet this way and striking — holding the wrench this way and striking with the mallet with his left hand I would assume —

William J. Brennan, Jr.:

And it —

Harvey Goldstein:

— in an effort to move the wrench in this direction and loosen the nut.

William J. Brennan, Jr.:

And the theory is that the worn end, or whatever it was, slipped off because it didn’t have sufficient grip?

Harvey Goldstein:

That is correct, sir.

That is correct.

Earl Warren:

We’ll recess.

Harvey Goldstein:

Thank you, sir, Mr. Chief Justice and members of the Court.

To continue, the witness involved was the second mate of the ship involved in this accident.

He stated that he knew the pumproom area, that he knew the tools, and that they were battered and beaten as usual, they were old, and they were worn, and that they had been in that condition for sometime.

Now, on the cross-examination, one of the first questions put to that witness was whether or not he was on the ship on the date of the accident itself and he stated that he had left the ship some-nine days before.

Because he was not on the ship on that particular day, all of his testimony was stricken, although there was quite obviously a presumption of continuation of condition in the absence of any evidence to the contrary, evidence which would show that there might have been a change in the condition of the various tools.

Now, it is our opinion that the rejection of that testimony, in it of itself, was sufficient to have caused — to have called for a reversal in this particular case because that one witness who was of prime importance, being an officer of the vessel itself, and stating that he had knowledge of the tools and of the pumproom itself certainly should have been allowed to continue and testify in full concerning the conditions of the tools itself.

The fact that he had finished his direct testimony had no bearing on the subject because further testimony could have been brought out on cross-examination and certainly, further testimony could have been brought out on rebuttal or on redirect examination of the witness.

Hugo L. Black:

Did you present that question?

Harvey Goldstein:

Yes, sir, I did.

Hugo L. Black:

In the petition for certiorari?

Harvey Goldstein:

Yes, sir, I’m — without remembering the exact language, I’m sure I did.

Yes, on page 12.

I state, “The court below apparently and correctly reversed the trial court’s exclusion of the testimony of Eisenbach, who was the witness.”

In so doing, it seems clear that petitioner was, even then, denied the right of rebuttal testimony.

At which time, perhaps, the court’s belief as the cause of elation could have been established.

It’s not the reversal alone that’s so important to witness, sufficient to have called for a reversal of the dismissal.

John M. Harlan II:

(Inaudible)

Harvey Goldstein:

Yes, I do, sir.

Hugo L. Black:

(Inaudible)

Harvey Goldstein:

I’m turning to the page now, sir.

Hugo L. Black:

(Inaudible)

Harvey Goldstein:

Yes.

Sorry, I have the wrong brief.

Yes, the second question, subdivision (a) —

Hugo L. Black:

Where is that?

Harvey Goldstein:

On page 2.

Hugo L. Black:

Page what?

(Inaudible)

Harvey Goldstein:

Oh, I’m sorry.

Hugo L. Black:

(Inaudible)

Harvey Goldstein:

No, sir.

I don’t state it in so many words but it is, of course, raised as part of the whole question as to whether or not there should have been submission of the evidence to the jury for its consideration in the sense that the witness itself — the witness himself stated or gave a further description of the tool which was then rejected in whole by the District Court.

And as I said on page 12, I stated the question at length, I believe, on the question of the exclusion of the testimony of that particular witness.

That was part of my argument in my petition and of course, the question was raised in my brief at this time and it was also raised in the Circuit Court.

Now, as I have read the Circuit Court’s opinion, they used some of the testimony of the particular witness and in so doing, I would assume that they must have considered that there should have been a reversal or at least — if not a reversal, at least that the witness’ testimony should have been accepted by the District Court in deciding this — the question of as to whether or not there should have been a directed verdict.

However, I would assume that, since the Circuit Court affirmed the District Court’s dismissal, what they were saying in fact was that the other, if any, was harmless.

I suggest of course that it was not harmless but that this witness was a prime witness and that his testimony went to the very, very core of the entire argument.

John M. Harlan II:

(Inaudible)

Harvey Goldstein:

Yes, sir.

John M. Harlan II:

(Inaudible)

Harvey Goldstein:

Yes, that is correct, sir.

So that they relied on his testimony and evidently said or evidently affirmed that it made no difference in any event.

I would assume from that that they were saying that the striking of his testimony was harmless.

So, certainly, I don’t believe that it was.

Hugo L. Black:

What page was that?

Harvey Goldstein:

That is on page 5 (a) — I’m sorry, 4 (a) of the — I have that in the petition, sir.

Hugo L. Black:

(Inaudible)

Harvey Goldstein:

I’m looking at the petition, sir.

Hugo L. Black:

(Inaudible)

Harvey Goldstein:

4 (a).

Yes, and it said a former mate and captain of the vessel who had been discharged by defendant described the tools as being in the pumproom, in December 1955, as being “beaten and battered condition.”

They had very beaten and battered.

And then, of course, they referred to him again in his testimony about the lighting conditions in the pumproom on 5 (a), “Very poor in this lower level at all times,” etcetera.

So that they evidently used his testimony but they must have come to the conclusion that the rejection of the entire testimony was harmless.

I — I suggest that it was not because he was of prime concern, prime importance, and went to the very, very core of the case.

If there is to be a presumption of continuation of condition, the mere fact that he left the vessel nine days before could certainly not strike his testimony if there was, in fact, no evidence that there was any change in the condition of the tools or in the pumproom during that nine-day period.

Certainly, his evidence was entitled to some way even though he was not on the vessel the very moment of the accident itself, and that weight should have gone to the jury for its consideration.

Now, my last point, it seemed evident or may I — may I go back for a moment.

The complaint was framed with the use of the word “teeth” in the wrench — in the description of the wrench in the — in the sense that it was stated in the complaint that the teeth of the wrench were defective and that the grip of the wrench was defective.

The Circuit Court, in dismissing the case, referred time after time to the teeth of the wrench and saying that “the plaintiff has not proved his case.

He says that the teeth of the wrench are defective and we now find that there were no teeth in the wrench.

He claims that the grip of the wrench was defective and we now find that there was no grip.”

There was no question but that there were no teeth of the wrench.

It was never asserted that there were any teeth on the wrench, except in the complaint itself.

There was a tremendous amount of pretrial preparation in the case and Mr. Ray, during the discussion of the argument of the opinion of the District Judge, conceded that he was not surprised in any way that there was no teeth on the wrench.

In short, the entire case was predicated to an open-end wrench which did not have any teeth but were, in fact, used by the plaintiff, as we said, in a defective condition.

Hugo L. Black:

Was the wrench produced?

Harvey Goldstein:

The wrench was not produced, sir.

Charles E. Whittaker:

It was not?

Harvey Goldstein:

It was not.

Charles E. Whittaker:

How did (Inaudible)

Harvey Goldstein:

Because they were supposed to be special wrenches for the use of the pumproom in a special toolbox.

There were supposed to be three wrenches for three particular pumps.

All of these, all the same.

Charles E. Whittaker:

All of them?

Harvey Goldstein:

All the same.

Charles E. Whittaker:

(Inaudible)

Harvey Goldstein:

No, sir.

Charles E. Whittaker:

All bad?

Harvey Goldstein:

All bad.

He —

Charles E. Whittaker:

That’s not (Inaudible)

Harvey Goldstein:

You mean — I’m sorry, do you mean the plaintiff complained about all three?

No, the plaintiff complained only of the one that he — that he used.

He didn’t know that there were any other wrenches.

However, the testimony was that all the wrenches were in the same condition.

All the tools were in the same condition, that they were all battered and beaten and had been so for some time.

Earl Warren:

The man who gave that testimony was one of the mates?

Harvey Goldstein:

He was the second mate on the ship and in fact, he was the master of the ship or the — either the first mate or — and the master the following two years for the very, very same defendant on the same ship.

If I may, I’ll take the rest of my time for rebuttal.

Earl Warren:

You may.

Mr. Ray.

Lucian Y. Ray:

Chief Justice and members of the Court.

The determination of the existence or nonexistence of negligence in a personal injury case, we suggest, Your Honors, involves, initially, the exercise of judicial judgment.

The petitioner in this case is asking this Court to substitute his judgment in that particular for the judgment of the two courts, both of which considered that — those questions very exhaustibly – the trial court in hearing the testimony, the Circuit Court in reading the record, and the Circuit Court filed, as this Court knows, having examine the record, a seven-page per curiam opinion in which nearly — in which all, I would say after an examination of the record carefully, in which all of the testimony upon which the petitioner relies is set forth in the opinion of the Circuit Court of Appeals.

And the Circuit Court has said that, considering that testimony in its most favorable light to the petitioner, it found no evidence of negligence or unseaworthiness which was approximate cause of the man’s accident.

Now, we agree with my friend here that the sole issue before this Court is whether the petitioner’s testimony considered in his most favorable light presented the jury question.

We say to Your Honors that it’s not a question of the weighing of conflicting testimony.

It’s not a question of the balancing of testimony.

It’s simply a question of taking his testimony and saying whether a jury question is presented.

Lucian Y. Ray:

Before — before adverting to the three faults which were alleged in the complaint, I’d like to bring these two facts to the attention of the Court so that the Court may understand the background of the situation.

This man had been not only a seaman for three years on the vessels owned by this respondent which were tankers, all of them are tankers, but he had had prior experience.

He was a fireman but the uncontradicted testimony in the trial court was that, during the lay-up — lay-out — the lay-up and fill-up of these vessels, it was part of the fireman’s duties to work in the pumproom and to work on the pumps.

So, he was not unpermitted with the task that he had and may I suggest to — may I suggest to the Court that on the question of instruction, which apparently was an afterthought because it was not a charged fault in the complaint, lack of instruction, that he admitted — he admitted that the — in his testimony, you will find it on page 10 of the record, that the pumpman had instructed him how to remove these knots.

And I say to this Court that whether the pumpman had instructed him or not, certainly, the putting of a wrench — an open-faced wrench on these 20 nuts on the casing of a centrifugal pump, hitting them — hitting the handle or the grip of that wrench with a mallet is a rather simple operation and wouldn’t require instruction or supervision.

Now, there are — there are three faults.

One was the allege lack of proper light, one, the alleged lack of proper space and the third, the alleged defective wrench.

Now, I’d like to consider the testimony relative to the first two and consider the wrench last because, apparently, that’s the most important.

Now, there’s a — there’s a rather substantial amount of testimony in the record with respect to the lighting situation, but it consisted principally of the wattage, the amount of the globes, how much wattage they had, the distance from the pump, and the deadlights, where they were located, whether the deadlights were clean or whether they were not.

But the Court will find, upon examination of this record, that there is not iota of testimony in which this petitioner suggested that the light affected in any way his ability to do the job that he was doing.

And I ask him on cross examination whether he had any difficulty seeing those nuts and he said, “I did not have any difficulty,” and I say to Your Honors that, that — on that issue, that laid that issue at rest.

There is no affirmative testimony on his part that he was having any difficulty because of the lighting situation and seeing the casing, the nuts, the mallet, and the wrench and he admitted affirmatively, in response to my question, that he had no difficulty.

John M. Harlan II:

What page is that on?

Lucian Y. Ray:

That, Your Honor, is on page 26 of the record.

I asked him, “You had no difficulty seeing the bolts, did you?”

Answer, “No, sir.”

Now, in respect to the lack of working space, here, again, there was a great deal of testimony relating to the measurements in the pumproom — of the pumproom, the location of the bulkheads in the pumproom, the fact that there were pipes in the pumproom, and that there were girders in the pumproom.

There was — there was some testimony as to measurements.

There is not one — there is that kind of statistical testimony that there is not one iota of testimony in which it can even been be inferred that he was being hampered in any way in caring out this job.

And he was asked — he was asked to explain how he did the job and he said he put — he put the wrench on — he put the wrench on the nuts and then he — then, he hit the wrench with the mallet.

And in answer to Justice Brennan’s question, while it isn’t entirely clear in the record, I think it can be assumed that it was done horizontally because if you’ll examine the — you’ll examine the photographs that appear in the back of the record as to the — as to the pumps and the casing, that’s the only way it could be done.

Charles E. Whittaker:

(Inaudible)

Lucian Y. Ray:

Some of them show where — where the casing has been removed.

Charles E. Whittaker:

(Inaudible)

Lucian Y. Ray:

Yes, it showed — it doesn’t show the nut.

Pardon me, Justice Whittaker.

It show — it doesn’t show the nuts themselves.

It shows the bolts because the casing has been lifted up.

Well, was that (Inaudible) standing over the nut.

Lucian Y. Ray:

He was standing over — he’s standing to the side of the pump, Your Honor.

Well, looking at a 103 —

Lucian Y. Ray:

Looking at 103?

(Inaudible)

Lucian Y. Ray:

He would — you see, the casing would be down and the nut would — the nut would be above that hole on top of the casing.

Yes.

Lucian Y. Ray:

And then, he would — he would be to the side of it and he put the — he put the wrench on there and — in a horizontal position and then he would take the mallet and —

Does the (Inaudible)

Lucian Y. Ray:

On top of the casing.

I assume that that’s true.

Hugo L. Black:

May I ask you to see if I can get it clear.

Did I understand in what you say was they had the nut here, they are going to work on — on the table and —

Lucian Y. Ray:

Yes, sir.

Hugo L. Black:

— he reaches up and puts that on as well as it would get on, whatever that is.

He screws it to the right place so it would be fastened and in order to have moved the nut around, he hits it with a mallet —

Lucian Y. Ray:

No, this is —

Hugo L. Black:

— is that it?

Lucian Y. Ray:

— you see, he was taking it off.

Hugo L. Black:

He was taking it off.

Lucian Y. Ray:

Justice Black —

Hugo L. Black:

Well —

Lucian Y. Ray:

— Black, and this was a centrifugal pump used for the pumping of cargo and it had to be tight.

It had to form a gasket —

Hugo L. Black:

But (Voice Overlap) —

Lucian Y. Ray:

It had to form a gasket and he was — he was removing the nuts to take the casing off, so that he put on there and he had to — in order to start the nut being taken off, he had to hit it with the mallet and then he —

Hugo L. Black:

I —

Lucian Y. Ray:

Then, he probably —

Hugo L. Black:

That’s what I said.

He hits it out — he puts it on there.

He can’t move it with his hand and he hits it with a mallet or something.

Lucian Y. Ray:

Well, I —

Hugo L. Black:

Here, it was a mallet.

Lucian Y. Ray:

Yes.

I misunderstood —

Hugo L. Black:

Yes.

Lucian Y. Ray:

I thought you were describing the putting on of the nuts.

Hugo L. Black:

No, I didn’t care whether it was on or off.

You can tighten it that way or you can loosen it that way.

Lucian Y. Ray:

Yes.

In one — in one instance —

Hugo L. Black:

I happen to done both.

Lucian Y. Ray:

— in one instance, the hitting of — with the mallet is the last thing you do if your tightening it.

And when you’re taking it off, the hitting with the mallet is the first thing you do to loosen it.

Hugo L. Black:

It has to be fastened on there so that it will not —

Lucian Y. Ray:

Form a gasket.

Hugo L. Black:

— fall off —

Lucian Y. Ray:

Yes, and it —

Hugo L. Black:

— if you hit it with a mallet.

Lucian Y. Ray:

And it has to — it has to be put tightly on, as I say, to form a gasket so the pump itself will work efficiently.

Hugo L. Black:

It has to be put on tightly and it has to be of such nature that it would hold when it’s put there, so that you won’t knock it off when you hit it with a mallet.

Lucian Y. Ray:

I think that’s right, Your Honor.

In other words, you have to use a mallet to start — to get it off.

Hugo L. Black:

That’s right.

Lucian Y. Ray:

And —

Hugo L. Black:

And it — and if it is, if you — if, for some reason, the man didn’t put it on tight enough or if he couldn’t put it on tight, if it just wasn’t tight enough to hold, it might be knocked off when you hit it with a mallet.

Lucian Y. Ray:

Well, that’s true, Your Honor, but I say this —

Hugo L. Black:

But evidently, that’s what happened here.

Lucian Y. Ray:

Well, let’s — I say —

Hugo L. Black:

I — I don’t mean whether it was loosened from his cause or somebody else’s.

What happened, as I — am I wrong?

I thought, from reading you, when he hit it, it fell off.

Lucian Y. Ray:

Well, some — somewhere along — I mean, at that time, we assumed that —

Hugo L. Black:

Yes.

Lucian Y. Ray:

— of course, he was the only one who was there.

And —

Hugo L. Black:

Well, but that — is that the theory on which the —

Lucian Y. Ray:

It — it apparently —

Hugo L. Black:

— his evidence rested.

Lucian Y. Ray:

— it — it apparently, at that time that — here’s what happened, and this is significant.

There were 20 bolts and nuts on this — on this pump casing.

Now, he had taken off either 15 or 16 because he had practically completed this job.

He was either on the 16th bolt or the 16th nut at the time when this occurred.

In other words, he’d taken off 15 or 16 of those nuts.

And it’s — when he got to this 17th, let’s — let’s say, and was probably going through the same operation that he had on the other thing that something happened.

Now, he said that — he said that the wrench slipped.

I say to this Court that the fact that the wrench slipped is not significant and doesn’t — and doesn’t establish negligence.

And there’s no evidence of negligence because it could — it could slip for several reasons.

It could slip from the — from — as a result of the position on which he — on which he — which he had the wrench on that nut.

That’s one thing it could slip off.

It could slip from the way he hit the — the handle with a mallet.

In other words, let’s assume he didn’t hit it — he didn’t hit it squarely.

Hugo L. Black:

If he hit it up straight up, of course, it would slip.

Lucian Y. Ray:

Yes, or — or came like this or down like that.

That might cause it to slip.

Hugo L. Black:

But in any event, it would have had to been lose.

Lucian Y. Ray:

Well, it would come — it — well, it —

Hugo L. Black:

Wouldn’t it?

Lucian Y. Ray:

No, it could fit there perfect —

Hugo L. Black:

If it was so tight, you couldn’t knock it all by hitting it.

Lucian Y. Ray:

Well, except this, Your Honor.

I don’t think — I mean, you don’t have wrenches.

Lucian Y. Ray:

This wrench was — was designed to fit this particular nut.

In other words, it was an open-face wrench, a wrench with a — like that, and was — it had the same dimensions as the nut that it went on.

Hugo L. Black:

(Inaudible)

Lucian Y. Ray:

No, it wasn’t and — but of course, they don’t fit like — they don’t have like a — with a micrometer put on it.

In other words, you have to have it in a position so they can put it on the nut initially.

Hugo L. Black:

Well, now, if it was — what I’m getting at, I don’t know, but I would assume that if that was at the place where it collapsed, I presume it was precise.

It was most (Inaudible)

Lucian Y. Ray:

Well, yes.

That’s sort of —

Hugo L. Black:

Yes.

Lucian Y. Ray:

— octagonal or something.

Hugo L. Black:

If it was so-called — use some other word besides (Inaudible).

If the place where it drenched was frayed or worn out or was — so that it wouldn’t hold well, that would make it come off easily, wouldn’t it?

Lucian Y. Ray:

I — I believe it would.

But I —

Hugo L. Black:

Hold down and then — what —

Lucian Y. Ray:

— but I —

Hugo L. Black:

— what you say is that’s not enough to show that the company is responsible.

Lucian Y. Ray:

That’s true, and I say this, Your Honor, I say that there’s no evidence at all in this record that — that even suggest that that’s — that that’s the situation.

In other words, the court below and — and Mr. Goldstein described the — the testimony as being simply descriptive, adjective and that’s all they were.

In other words —

Hugo L. Black:

Well, they — they were descriptive.

It was chewed up there, chewed up there (Voice Overlap) —

Lucian Y. Ray:

Yes, but what was chewed up, Your Honor?

There isn’t one single —

Hugo L. Black:

He said it’s chewed up and it slipped from it.

I suppose there —

Lucian Y. Ray:

There —

Hugo L. Black:

— should be the part where it totally slipped.

Lucian Y. Ray:

Yes, but — you’re doing now what you wouldn’t permit a — a District Court — I mean, a jury to do.

Lucian Y. Ray:

You’re speculating, I think, Your Honor, because there isn’t one — one reference at all to the open jaw of that wrench, not one.

There isn’t one reference to the — to the handle of that wrench.

All they say is that it’s old, it’s beaten up, it’s battered, it’s decrepit.

Now, there —

Hugo L. Black:

He said it’s battered, decrepit and chewed up —

Lucian Y. Ray:

Chewed up.

Hugo L. Black:

And it kept slipping.

He had a hard time making it stay on there.

Lucian Y. Ray:

Well —

Hugo L. Black:

Didn’t he?

Lucian Y. Ray:

That’s right.

Hugo L. Black:

And it kept slipping off.

Lucian Y. Ray:

But it could — but as I said a moment ago, that could slip from — from — for three or four different reasons.

Hugo L. Black:

It wouldn’t be because it’s battered up on the hammer, would it?

Lucian Y. Ray:

I don’t know.

Well, I don’t know whether it would or not.

And in other words, I don’t think — I don’t think this Court can assume that —

Charles E. Whittaker:

(Inaudible)

Lucian Y. Ray:

105.

Charles E. Whittaker:

(Inaudible) — running up and down, is that right?

Lucian Y. Ray:

That’s right, Your Honor.

Charles E. Whittaker:

(Inaudible)

Lucian Y. Ray:

Well, I can’t answer that, Your Honor, whether it stayed up or it’s down or fall off.

I mean, what if — what if I should — I mean, it would depend on how it was placed on there.

I would say this, that this man, using this wrench that he described after this has occurred and that he didn’t report to even a man who was in the pumproom with him, didn’t report this accident and didn’t report to any officer for three months later, I would say that he got 16 of these nuts off using this all beat-up decrepit wrench and after all, the thing I — it seems to me that the issue in this case is whether that wrench that he used was able to perform the function for which it was being used, and that was to take those nuts off.

And I think the court below was 100% correct in saying that you — that you do not get to the question of negligence in this case by simply saying that something is defective, something is old, something is decrepit.

You’ve got to — you’ve got to pinpoint this proposition.You’ve got to — let’s refer to the Jacob’s case.

I’d say this, that if there would have been the proof in this case than there was in the Jacob’s case, that you had a lot of play in the jaw of that wrench like there was in the Jacob’s case, I’d say — I would say that the court probably should have sent that — let that case go to the jury.

Now —

William J. Brennan, Jr.:

(Inaudible)

Lucian Y. Ray:

No, I don’t think so, Your Honor.

What does chew up — chewed up mean?

That’s —

William J. Brennan, Jr.:

(Inaudible)

Lucian Y. Ray:

Well, I would think the question would be whether they have a right to, Your Honor, in other words, whether that would be pure speculation.

I — it seems to me that there is still — maybe I’ll admit that I am not an unprejudiced in this situation.

wI mean, I am a defense lawyer entirely but it seems to me that there is still some obligation on the part of a seaman to establish fault, and this Court has not ruled otherwise.

I appreciate the — I appreciate the — and the Court below appreciated the significance of the Roger and the Ferguson case and said, in spite of it, that there was no — in other words, that it isn’t a question of weighing because there was no evidence of negligence.

And we feel — I think that there is still the obligation of the plaintiff to prove his case, to introduce some evidence of negligence and that this is, in theory, is still the obligation of the jury not to speculate.

Now, if there had been faults of a- in respect to this wrench, they could have been pinpointed.

He could have said there was play in that wrench.

He could have said that — that it —

(Inaudible)

Lucian Y. Ray:

I don’t’ think it is, Your Honor.

I think — I think the slipping can come from, as I say, another thing the slipping can come from are the bolts themselves.

(Inaudible)

Lucian Y. Ray:

Even though they don’t know what part of the wrench is chewed up, is that right?

Earl Warren:

Well, Mr. Ray, I — I wonder whether — don’t you attach some significance to — to this?

It appears on page 3 (a) of the opinion of the Court of Appeals, where the petitioner testified he told the pumpman, “This tool is not very good, kind of beat-up.

This wrench keeps slipping off.”

Now, in tying those two things together, the fact that this — this tool is not very good means, for the purpose he has it, and this “kind of beat-up” would mean some material part of it and the fact that “the wrench keeps slipping off,” aren’t those things, when combined, some evidence that the — that the tool is not sufficient for the task?

And the pumpman said, “Never mind about that.

Do the best job you can.”

Lucian Y. Ray:

Well, I think, Mr. Chief Justice, that — that the testimony you are reading there are conclusions of the witness.

If — if he says “This — this tool is not good,” now, that’s — that’s his conclusion, isn’t it?

I mean, that’s — that doesn’t — that — the jury has got to determine whether the — whether the tool is good.

He — it’s his conclusion.

It’s not a statement of fact, is it?

Hugo L. Black:

Did you object to the evidence on that ground?

Earl Warren:

It’s in the record.

Earl Warren:

It’s in the record and quoted as — by the Court of Appeals —

Lucian Y. Ray:

Well, that’s right and that’s —

Earl Warren:

— that you rely.

Lucian Y. Ray:

That’s right, Mr. Chief Justice.

It’s — it’s there.

I didn’t object to it but as I say, whether it’s — whether it’s objected to or not, if it’s a conclusion, it isn’t — it doesn’t constitute evidence, does it?

Earl Warren:

Well, I — I suppose if he says the wrench keeps slipping off because the — the tool won’t — won’t hold onto the nut, what — what more could he say?

Lucian Y. Ray:

Well, I suggest that — I suggest that he was — that he could have said that this — there was a play in this wrench.

It just simply did not fit.

And I think — I think the fact that he got 16 or 17 of these nuts off is a very significant reputation of his own — of his own statement there.

Now, there’s just one other thing and then I will close.

My friend has adverted to the testimony of the second mate.

At the — at the conclusion of his testimony, a motion to strike was made and the court did not strike all of his testimony.

The court struck that — struck the testimony which related to his description of the condition of those tools as of the date of the accident.

Now, it was clearly strike-able on that ground.

He had no knowledge of the condition of those tools at that time.

Now, the remainder of his testimony was not stricken.

Hugo L. Black:

What was the other day to which he would testify?

Lucian Y. Ray:

Well, he testified, Mr. Justice Black.

It was sort of a, I wouldn’t say, blunder-wise, maybe that isn’t a proper descriptive — description of it but he was carrying a whole five years prior to the accident.

Now, he left the vessel.

The accident allegedly occurred on the December 28, 1955 and he left on the 19th of December.

Hugo L. Black:

How did he describe — where is the — how did he describe the —

Lucian Y. Ray:

He described —

Hugo L. Black:

Particular wrench that —

Lucian Y. Ray:

He didn’t describe —

Hugo L. Black:

Or wrenches that we’re talking about?

Lucian Y. Ray:

He didn’t describe the particular wrench.

He described all the tools in the pumproom tool box as being old and beat-up and battered, and he didn’t — he couldn’t possibly know, as was suggested in answer to one of the Justices’ questions, he couldn’t possibly know which particular wrench was used.

He just made a —

Hugo L. Black:

But he testified about the wrenches?

Lucian Y. Ray:

He — about wrenches generally.

Hugo L. Black:

What did he say?

Lucian Y. Ray:

He said, “All of them were all decrepit and beat-up and battered.”

Hugo L. Black:

Well, if they were and nine days before, he had seen them, do you think you say that evidence wouldn’t be admissible or —

Lucian Y. Ray:

I say that the —

Hugo L. Black:

These were metal wrenches, weren’t they?

Lucian Y. Ray:

They were made of a spark-proof alloy.

I say this, that if he comes in and says that he knows the description of — I mean, he knows the condition of those wrenches, as of the date of this accident, and —

Hugo L. Black:

Do you say he would have to know that?

If he known it the day before, what about that?

Lucian Y. Ray:

Well, I would say that — I would say if he is describing them on the day of the accident, he’d have to be there and look at them.

Hugo L. Black:

Suppose the day before he testified he saw —

Lucian Y. Ray:

I’d have to say —

Hugo L. Black:

— these alloy wrenches?

Lucian Y. Ray:

That he had — that he —

Charles E. Whittaker:

(Inaudible)

Lucian Y. Ray:

That’s right, he would.

Charles E. Whittaker:

(Inaudible)

Lucian Y. Ray:

That’s right.

Hugo L. Black:

Well, was he claiming about it to the jury?

Would he testify that nine days before, if he did, that these were all beaten up and chewed up?

Does that — is there any rule that would allow any judge anywhere to exclude that evidence as to what the situation these wrenches were in, nine days before?

Do you know of any rule that would exclude it?

Lucian Y. Ray:

I say this.

Well, what — what difference does it make — what — what their condition is nine days before?

The — the question is —

Hugo L. Black:

Suppose it was a steam engine and they showed how it was nine days before, metal steam engine, would you say that he’d have to say, “I saw it on the day the man was hurt by the steam engine”?

Lucian Y. Ray:

I’d say this, if he — if he is testifying as to the condition of a tool on a given day, he has to know what that condition is.

Hugo L. Black:

At that day?

Lucian Y. Ray:

Yes, Your Honor.

Hugo L. Black:

He must have seen it.

Lucian Y. Ray:

He must have some knowledge of it.

And he is testifying — he is testifying of conditions concerning which he has known of.

Earl Warren:

Well, Mr. Ray —

Lucian Y. Ray:

And that — let me —

Earl Warren:

Beg your pardon.

Lucian Y. Ray:

Let me — pardon me and because I — I say this, Your Honor.

Let’s assume that that was — that was improperly excluded, which I don’t concede.

It’s the same type of testimony that the — that the petitioner himself testified to, which is simply a general description of — of a wrench being old, battered, chewed up, beat-up and nothing which — which permits a reasonable inference that there was anything wrong with the — with the ability of that tool to perform the function for which it was —

Hugo L. Black:

Do you say that no —

Being used.

Hugo L. Black:

— no man could reasonably find evidence that there was a tool which was badly beaten up, chewed up and so forth and then he tried to use it, had great difficulty in using it and finally slipped off?

That no reasonable man could find that it was defective.

Lucian Y. Ray:

I would say, yes, that’s what I say.

Anymore than — anymore, Your Honor, than — that if — if they should describe a — a man who was — who was supposed to perform a particular function.

Let’s assume that his job was a mental job and he is described as old and decrepit and lame..

That doesn’t affect his ability to — to perform a mental task.

Hugo L. Black:

Well, if they said he’s old and decrepit and lame nine days before the accident, that would be evidence and he’s still decrepit and old then?

Lucian Y. Ray:

And I think this.

That you’ve got — you can’t have a mate come in and say that —

Hugo L. Black:

I’m afraid it would.

I speak from experience.

Lucian Y. Ray:

You can’t have a mate come in and say, “All the tools everywhere in this pumproom are bad and have that — have that cover this particular thing.”

Potter Stewart:

Mr. Ray, this case was brought under the Jones Act, wasn’t it?

Lucian Y. Ray:

Yes, Your Honor.

Potter Stewart:

But there’s also an allegation of unseaworthiness in the complaint.

Did that drop out of the case during the trial?

There’s no discussion of unseaworthiness that I could find in the — in the motion, in your motion or in the judges’ ruling for —

Lucian Y. Ray:

Well, not —

Potter Stewart:

— for a directed verdict or in the Court of Appeals opinion.

Lucian Y. Ray:

It was considered solely as a vital part, I’m sure, as a —

Potter Stewart:

Negligence case.

Lucian Y. Ray:

As a negligence case, and they don’t (Inaudible).

Thank you very much, Your Honor.

Harvey Goldstein:

Although, of course, I might add that the plaintiff never did drop his cause of action for unseaworthiness, that was always in the case.

That was raised in the Circuit Court briefs and that has been raised in the briefs before this Court.

And certainly, if this Court would find that that wrench was defective, that, in it of itself, I believe would compel a decision that the vessel was unseaworthy.

Potter Stewart:

Under the Jones Act —

Harvey Goldstein:

It —

Potter Stewart:

We can rule only for negligence and —

Harvey Goldstein:

That’s correct, sir.

Potter Stewart:

This is all tied up in one cause of action in your complaint.

Under the Jones Act, there is no liability for —

Harvey Goldstein:

For — for unseaworthiness.

Potter Stewart:

And there’s no cause of action for unseaworthiness.

Harvey Goldstein:

Actually, it was two causes of action though, not put as two separate —

Potter Stewart:

No.

Harvey Goldstein:

Causes in the complaint, but there was a statement that the vessel was unseaworthy.

Potter Stewart:

Because, I suppose, this is a case where their questions involved was whether these tools were or were not defective, that is whether —

Harvey Goldstein:

That —

Potter Stewart:

— the evidence was sufficient to show that the —

Harvey Goldstein:

I — I would think so.

Potter Stewart:

That they were defective and I suppose, in this case, there’s no difference if the tools —

Harvey Goldstein:

It — it wouldn’t — as a practical matter, I don’t think it would make much difference.

May I —

Potter Stewart:

You’re right.

Harvey Goldstein:

Go through a certain testimony very quickly.

On the motion to strike the witness’ testimony, may I respectfully direct the Court’s attention to page 47 of the record.

Mr. Ray, “I move that the witness’ testimony be stricken.”

Harvey Goldstein:

The Court, “Ladies and gentlemen, everything this man said about what he had seen on or about that day in his previous testimony, all of which relating to December 28th when this plaintiff was heard and date immediately around it has to go out,” so that his testimony was stricken in its entirety.

Whether or not a question, perhaps, about his prior service on the ship was stricken is unimportant.

The important thing is that all testimony concerning the condition of the tools was stricken.

Potter Stewart:

The Court of Appeals did consider it and still affirmed the judgment and thereby, you implicitly say that they — that — or you say that their implicit ruling was that it should have been admitted rather than excluded, don’t you?

Harvey Goldstein:

That is correct, that is correct.

Potter Stewart:

But what they are saying, in effect, isn’t it, that even if it had been admitted, they were still no — there was still not enough evidence to take a case to the jury.

Harvey Goldstein:

That — that is correct and my claim, of course, is that they were wrong in that statement.

Evidently, they’re assuming that the order, if any, was harmless or some such intent, and I say that the loss of further cross-examination and the loss of further redirect examination could have brought out facts in this case which would have satisfied any District Court judge if that man had been further allowed to testify.

On page 10, we have stated of course that the tool was chewed up.

Now, if Your Honors will see these two questions and two answers on the top, “Can you describe this wrench?”

“It is about one foot long.”

“Was it an adjustable end or open-end wrench?”

“It was an open-end wrench.

It was an all — it was an old wrench, all chewed up on the end.”

Now, can we possibly say that he was not talking about the jure end of the wrench?

This isn’t a matter of simply saying, “Well, the wrench was all chewed up.”

He is specifically pointing to the open-end part of the wrench and saying that the wrench was all chewed up on the end.

There can be no other assumption in this matter.

Now, as to the question of instruction and supervision, the pumpman himself admittedly — admitted that he — that he showed him nothing about the wrench.

He told him nothing about the job itself.

I direct your attention to page 72 of the record.

Did you show — question, “Did you show him the nuts he had to knock off?”

Answer, “No, I told him the casing.

There was only one pump there on that side, centrifugal pump.”

“When that — when that happened, did he have to leave the catwalk and get down to a lower level?”

“Yes, sir.”

“Did you watch him work?”

“No, sir.”

So that, there is specific testimony by the pumpman himself that he gave him neither instruction nor supervision.

And certainly, if the — as I know the Court will, when you read the District Court’s decision — opinion granting the directed verdict, you will see that the court itself stated that this man was given no instruction and then the court went on to say “Well, of course he didn’t need instruction because it was such a simple job.”

Harvey Goldstein:

Certainly, as to whether or not the job was simple enough when it had to be handled with special non-sparking tools, hit in such a way by an experienced man in an area that he claims he had never been in before in his entire life, was certainly a question for the jury.

Potter Stewart:

Who was the trial judge?

Harvey Goldstein:

Judge Cannel, I believe.

Potter Stewart:

Cannel.

Harvey Goldstein:

James Cannel.

Then, on the question of safe place to work, as to whether or not the corridors were, in fact, too close, on page 22 of the record.

Question, “Was there any catwalk in the area of that pump you talked about?”

“Yes, sir”.

“Where was that located?”

“It goes across the ship.”

“But is it right over the casing or to the side?”

“Halfway over.

It is halfway over the casing.”

“Now, when you were taking the bolts and nuts off, how many of those nuts had you taken off at the time the wrench slipped?”

“I had taken them all off but about five or six.”

“You took those off without difficulty?”

“I had a hard time loosening them off.”

“But you got them off?”

“Yes.”

“In other words, you put the wrench on them and tapped it with the mallet and loosen them, and then you turned the nuts off?”

Answer, “I had a hard time taking them off.”

Now, whether or not this man was talking about the tightness of the nuts or the closeness of the corridors is something that I cannot state.

I look at the record and I say that, from this record, it could have easily been inferred that what he was talking about was the closeness of the corridors rather than the hardness of the nut, and I suggest that that, in it of itself, would be a submissible issue to the jury for its consideration and not the courts.

Thank you, sir.