Petition for Writ of Certiorari — Richardson v. Lokey

IN THE

Supreme Court of the United States

OCTOBER TERM, 1975

75-116

NO.

UNION OIL COMPANY OF CALIFORNIA,

Petitioner,

versus

BILLY B. WIMBERLY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

ROBERT M. JULIAN

1314 Texas Avenue, Suite 512

Houston, Texas 77002

Attorney for Petitioner

Alpha Law Brief Co., One Main Plasa, No. 1 Main St., Houston, Texas 77002

TABLE OF CONTENTS

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TABLE OF CASES AND STATUTES

Cases:

Crumady v. Fisser, 358 U.S. 423 (1959) .........5005-

Mitchell v. Trawler Racer, Inc., 362 U.S. 539 (1960) .

Lykes Bros. SS Co. v. Grubaugh, 128 F.2d 387 (5S Cir,

CODER v0ch cnc ccecnvnseeseesasacecsccacsagescasess

Pritchett v. Etheridge, 172 F.2d 822 (5 Cir., 1949) ....

Puddu v. Royal Netherlands SS. Co., 303 F.2d 752 at

De uncnacdusbecekanns 45440060 tuedutaseneedees cee

Raycraft v. Duluth, M. & I. R.R., 472 F.2d 27 (8 Cir.,

SUE: Sibu. ikea chadch Seis teen atta aabutenial lake

Skogen v. Dow Chemical Co., 375 F.2d 692 (8 Cir., 1973)

Usner v. Luckenbach Overseas Corp., et al., 400 U.S. 494

CN Sa Kanchi ined dives cetnaed Vanecaniencestiucs

Statutes:

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BE WREA, F. ATRSTRD cin cindccensdcsccsccassesecens

Constitution of the United States, Article 3, § 2(1) ......

MEERA

Supreme Court of the United States

OcTOBER TERM, 1975

NO.

UNION OIL COMPANY OF CALIFORNIA,

Petitioner,

versus

BILLY B. WIMBERLY,

Respondent,

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

To The Honorable, The Chief Justice Of The United

States And The Associate Justices Of The Supreme

Court Of The United States:

Union Oil Company of California prays that a writ of

certiorari: issue to review the judgment of the United

States Court of Appeals for the Fifth Circuit entered in

the above entitled case on March 18, 1975.

There is no written opinion of the District Court

(Judge Joe J. Fisher, U.S.D.J.). This case was tried be-

2

fore a jury and judgment was entered upon the jury’s

verdict.

The court’s charge to the jury is reproduced in the

supplement beginning at page 13.

The opinion of the Uniied Siates Court of Appeals for

the Fifth Circuit (Circuit Judges Goldberg and Rooney

and District Judge “Srooms) is reproduced in the supple-

ment beginning at page 21. It is unpublished and, as

yet, not summarized in the American Maritime Cases.

JURISDICTION

The opinion and judgment of the Court of Appeals

were entered on March 18, 1975. Petitions for Rehearing

and Rehearing en banc were denied on April 23, 1975

and this Petition for a Writ of Certiorari is filed within

90 days of that date.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

QUESTIONS PRESENTED

(1) Whether a shipowner’s warranty to a seaman in

respect of the seaworthiness of his vessel should be judi-

cially extended beyond the scope applied by this Court

in Mitchell v. Trawler Racer, Inc., 362 U.S. 539 (1960)

to include a television set?

(2) Whether a shipowner’s warranty of seaworthiness

eliminates the necessity of proving a causal connection

between an alleged back injury to a seaman who was on

deck carrying a television set and a temporary interrup-

tion of power in the engine room of the vessel.

Pm ™

3

(3) Whether copies of medical records admitted into

evidence under the business records rule are by themselves

sufficient to establish the medical condition of a patient

with a long history of back complaints.

STATUTE INVOLVED

The doctrine of unseaworthiness is based on the general

maritime law as developed by this Court under Article 3,

Section 2(1) of the Constitution of the United States.

The third point of the petition relates to the application

of 28 U.S.C.A. 1732(a) and concerns the admissibility

into evidence of medical records, as records made in the

ordinary course of business, for all purposes without

clarification by expert testimony.

STATEMENT OF THE CASE

On March 11, 1973, the Captain of the SS PURE OIL

was notified that the television set which was located in

the crew’s mess room was not operating. At the Captain’s

request, the vessel’s radio operator went to the mess room

to check the set.

The set was given a preliminary examination in the

mess room and nothing was found wrong, so it was then

taken forward to the officer’s lounge for further inspec-

tion. As soon as the set was plugged in, it performed

perfectly.

After running the set for approximately one hour in the

officer’s lounge, Billy B. Wimberly, an off duty messman,

picked it up and carried it aft to the crew’s mess room.

The radio operator plugged the set into the electrical

system in the crew’s mess room and the set continued to

work perfectly.

Rpt ere see PPR Ee

4

Thereafter, the radio operator ascertained that the

trouble was in a converter (or inverter) in the engine

room which converts the vessel’s generator’s direct cur-

rent to alternating current for use in running the set.

It developed that between the time the set had been

taken to the officer's lounge to the time it was returned to

the crew’s mess room, the engine room had switched

from one electrical system to another and current to

operate the TV set had been restored.

Billy B. Wimberly, as a seaman employed aboard the

SS PURE OIL, filed an action on March 27, 1973 in

the United States District Court for the Eastern District

of Texas, Beaumont Division, against Union Oil Com-

pany of California to recover damages for personal in-

juries allegedly sust2. 1 on March 11, 1973 while carry-

ing the television set back to the crew’s mess room.

Wimberly alleged liability for negligence under the

Jones Act and unseaworthiness of the vessel under the

general maritime law. He also claimed liability for an

allegedly unpaid balance due for maintenance.

In its answer Union Oil Company of California denied

negligence; denied that the SS PURE OIL was unsea-

worthy; denied that any additional maintenance was due

Wimberly; and alleged that if Wimberly had been in-

jured, same was due to his own negligence.

The case was tried before Hon. Joe J. Fisher, U.S.D.J.,

and a jury on March 6 and 7, 1974.

Plaintiff tried the case on the theory that (1) the

television set was defective and needed repair and (b)

he slipped while carrying the set and that same caused or

aggravated a back condition.

5

Wimberly was taken ashore in Wilmington, North

Carolina on March 12, 1973 where he was treated for a

muscle spasm and was flown home to Port Arthur, Texas.

He reported to an outpatient clinic on March 13 and was

found fit for duty on April 20, 1973.

Union Oil Company objected to and was granted a

continuing objection at the trial to the introduction into

evidence of medical records “for all purposes.”

Plaintiff produced no doctor or medical expert to testify

whether, or to what extent, if any, he had been injured

while carrying the television set.

After both sides rested, the District Court charged the

jury on unseaworthiness as follows:

“And that while this duty cannot be delegated it is

a duty only to furnish a vessel and appurtenances,

tools and equipment and the television in question

would be considered equipment which are reason-

ably fit for their intended use.”

Union Oil Company objected to the charge. In re-

sponse to the objection, the District Court stated:

“We can appreciate the fact that it is necessary for

you to object, Mr. Julian, and the court is not certain

about this matter of the condition of the television

set making the vessel unseaworthy. I have serious

doubts that it will, but out of precaution I thought

it was better to give it... .”

The jury returned the following verdict:

“We the jury, find for the Plaintiff, Billy B. Wim-

berly, and assess damages at $14,000.00”.

ee aR NE EN

6

Judgment was entered in the District Court on March

21, 1974 against Union Oil Company of California

(“Union”) based on the jury’s verdict. At the same time

the court held that Wimberly was not entitled to an award

for additional maintenance.

Union’s motion for a new trial was denied by order

dated March 29, 1974, following which Union filed on

April 22, 1974, its notice of appeal to the United States

Court of Appeals for the Fifth Circuit.

The judgment of the District Court was affirmed by

a per curiam decision dated March 18, 1975.

Union petitioned on March 31, 1975 for a rehearing

or, alternatively, a rehearing en banc. By letter dated

April 23, 1975, the court advised that the petition was

on that day denied, a copy of which is reproduced in

the supplement beginning at page 22.

REASONS FOR GRANTING THE WRIT

(1) The decision of the Court of Appeals in approving

the District Court’s jury charge goes far beyond the limits

set by this Court in Mitchell v. Trawler Racer, Inc.,

362 U.S. 539 (1960) and in Usner v. Luckenbach Over-

seas Corp., et al., 400 U.S. 494 (1970).

In Usner, Mr. Justice Stewart, in delivering an opinion

concurred in by Burger, Ch. J., and by White, Marshall

and Blackmun, JJ., stated that the doctrine of liability

based upon unseaworthiness has experienced over the last

twenty-five years a remarkable expansion which began

as a dictum in an obscure case in 1922; and that this

Court’s decisions since that time have been severly ques-

tioned by dissenting Justices of this Court and by others

on the basis of history, reason, and logic.

7

In his separate dissent, Mr. Justice Harlan wrote that

while he considered himself bound by Crumady v. Fisser,

358 U.S. 423 (1959), a case in which he had dissented

together with Frankfurter and Whittaker, JJ., he had

often protested the expansion of liability and that he

would welcome a thoroughgoing re-examination of the

past course of developments relating to the unseaworthi-

ness doctrine.

The District Judge in this case combined a negligence

charge with an unseaworthiness charge, as if they were

one and the same cause of action, which is diametrically

contrary to the decisions of this Court in the Mitchell and

Usner cases, and submitted for the jury’s determination

one general issue on liability.

Under the District Judge’s charge, now approved by

the Court of Appeals, there was absolutely no way for

the jury to distinguish between negligence and unsea-

worthiness. Further, the District Judge charged the jury,

in effect, that a television set which could not be turned

on was defective, which, ipso facto, rendered the vessel

unseaworthy.

The undisputed fact is that there was nothing wrong

with the television set. The picture tube could not be

activated only because one of two devices in the engine

room which converts direct current to alternating current

for use in operating the television set, was inoperative

at the moment the first attempt was made to use the

set. But when the other device was later used, the tele-

vision set worked perfectly.

However, the Judge’s use of the words

“

. and the basis for the unseaworthiness was the

fact that it (the ship) had a television that was in-

operative .. .”

8

in his charge to the jury, he left the jury no choice except

to find liability.

(2) Assuming a defect in the television set, that of

itself does not constitute unseaworthiness of a_ vessel

as charged by the trial court. The shipowner’s obligation

is to provide a vessel reasonably fit for its intended use.

Mitchell v. Trawler Racer, Inc., supra. The failure of a

television set to work aboard ship hardly qualifies as un-

seaworthiness under the concepts announced by this Court

that the ship must be “only reasonably fit”. The rationale

of the District Court’s charge that if a television set is on

board ship and it goes “on the blink”, and someone in

the process of carrying the set injures his back, then

the vessel is unseaworthy, as 4 matter of law, since the

television set was not reasonably fit for its intended use.

Therefore, any time a television set is unworkable, the

vessel is unseaworthy.

Petitioner submits that if a person is shocked by an

electrical defect in a television sei, then the set might

be unfit for its intended use. However, on the other hand,

when a television set is merely “on the blink”, such does

not under the present law in and of itself constitute an

unseaworthy condition.

In this case, however, there was nothing wrong with

the television set. The defect, if it may be called that,

was in the inverter in the engine room which was not

supplying electrical energy to the set.

Assuming that the engine room’s failure to supply

electricity to a television set is a defect, nevertheless, there

is no causal relationship between that and a person who

claims a back injury while carrying that or any other

object on the deck of a vessel.

9

In the penultimate line of the majority opinion in the

Usner case, the Court footnoted and quoted from a Sec-

ond Circuit opinion, as follows:

“A ship is not unseaworthy because it has glass in

a window which might be broken. The injuries of a

seaman who negligently breaks such a glass are not

the result of unseaworthiness, nor are the injuries

of a seaman who is cut by the falling glass. But

injury incurred in stepping on the broken glass does

result from unseaworthiness.”

The decision from which the above was quoted, Puddu

v. Royal Netherlands S. S. Co., 303 F.2d 752 at 757, was

made after an en banc hearing, and stands squarely for

the proposition that there must be a causal relationship

between a defective condition and an injury to establish

liability for unseaworthiness.

The District Court’s charge was not only incorrect,

which it tacitly admitted, but also the reference therein

to “ ... the fact that it had a television that was in-

operative”, when taken in conjunction with the comment

in the charge that “. . . the television set in question

would be considered . . . ship’s equipment”, gave the jury

no choice other than to find liability. Under the court’s

charge, how else could a jury have answered?

A reading of the Second Circuit's en banc opinion in

Puddu and this Court’s opinion in Usner supports Mr.

Justice Harlan’s welcome of a thoroughgoing reexamina-

tion of the doctrine of unseaworthiness.

(3) Wimberly was treated by the Public Health Con-

tract Physician at Wilmington, North Carolina, on March

12, 1973, and, after returning home, was seen on March

10

13 at the United States Public Service Outpatient Clinic

at Port Arthur, Texas where his condition was diagnosed

as “muscle spasm — low back”.

It is not disputed that Wimberly sustained a back in-

jury in i967, spent 76 days in a hospital in Lima, Peru

and underwent a laminectomy and that he has a history

of back problems.

At the trial of the case the court admitted medical

records into evidence, over Petitioner’s objections, “for

all purposes”, as exceptions to the rule against admitting

hearsay testimony.

The records and their contents were not interpreted by

a doctor. The jurors were left to determine as best they

could the meaning of complicated medical terminology

which appeared throughout the records. In short, the

jurors were left to make their own determination based

on their own individual knowledge of medicine and not

upon informed testimony of a medical expert.

Hospital and clinical records admitted into evidence

under the Business Record Rule, 28 U.S.C.A. 1732(a),

are not sufficient, by themselves, to establish that the

medical condition of the patient with a long history of

back complaints were solely and proximately caused by

one shipboard incident. The holding of the Circuit Court

in this case is directly contrary to its previous holding in

Lykes Bros. Steamship Company v. Grubaugh, 128 F.2d

387 (5 Cir., 1942) and the holdings of the Eighth Circuit

in Skogen v. Dow Chemical Co., 375 F.2d 692 (8 Cir.,

1967) and Raycraft v. Duluth, M. & I. R.R., 472 F.2d

27 (8 Cir., 1973).

11

The Fifth Circuit in Lykes Bros. Steamship Company

v. Grubaugh, supra, held in a Jones Act seaman’s per-

sonal injury suit, that the defendant could not introduce

into evidence a statement in the hospital records that

the plaintiff was fit for duty when he was discharged; that

the statutory exception to hearsay did not purport to make

opinions admissible as evidence. This concern for the

jury’s objectivity was echoed in Pritchett v. Etheridge, 172

F.2d 822 (5 Cir., 1949).

Although the decision of the District Court was based

on the Federal Rules of Evidence which were, in effect,

at the time of the trial, new Rule 803, effective July 1,

1975, probably remains unchanged in respect of medical

records and has widespread application in litigation

throughout the federal judiciary.

CONCLUSION

The scope of the doctrine of unseaworthiness has been

broadened explosively since its origin as dicta in 1922.

Mr. Justice Harlan’s suggestion that a thoroughgoing re-

examination of that doctrine, should be accepted as con-

fusion continues to grow in this area of law. Further,

differences in opinion in Congress in respect of the Fed-

eral Rules of Evidence promulgated by this Court on

November 20, 1972, warrant examination of the business

records rule.

12

Petitioner therefore respectfully prays that its petition

for a writ of certiorari be granted.

July , 1975.

Respectfully submitted,

ROBERT M. JULIAN

1314 Texas Avenue, Suite 512

Houston, Texas, 77002

713/223-0031

Counsel for Petitioner

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of this

Petition for a Writ of Certiorari has been served upon

counsel for the Respondent by mailing same to him on

July 1975, in a securely sealed, postage prepaid

envelope addressed to Mr. James W. Mehaffy, Jr., At-

torney at Law, 3550 Fannin, Beaumont, Texas 77701.

ROBERT M. JULIAN

=e.

13

SUPPLEMENT A

COURT’S CHARGE

THE COURT:

Members of the Jury, the Court will now give you the

Charge. As we have told you in the beginning, you are

a fact-finding body. You are the sole judges of the facts

proved and the credibility of the witnesses and the weight

to be given their testimony, but the law you will receive

from the Court and be governed accordingly.

In your deliberation you must not discuss any facts

or matters which are not based upon the evidence sub-

mitted before you under the rulings of the Court. You

arrived at your verdict from a preponderance of the evi-

dence. By the term “preponderance of the evidence” is

meant the greater weight and degree [271] of credible

evidence which has been admitted to you during the trial.

It means that evidence which, if considered in the light

of all of the facts and circumstances, you believe was a

greater weight, it does not necessarily mean the greater

number of witnesses.

Now, in this lawsuit the plaintiff in this case, Billy

R. Wimberly, was a seaman and was on board the SS

PURE OIL. He contends that he received an injury while

on board this ship, an injury to his back on or about

March 11, 1973. He contends that this injury was due

to negligence on the part of officers of the vessel and also

that this negligence was the contributing cause of his

injury.

He furthermore contends that the vessel was unsea-

worthy. Now the term “unseaworthy” doesn’t necessarily

mean that the vessel wouldn't sail or wouldn't float, but

14

it is a legal term as used herein, it means that the defend-

ant, the vessel, was under a duty to furnish the [272] |

plaintiff a seaworthy vessel. And that while this duty

cannot be delegated it is a duty only to furnish a vessel

and appurtenances, tools and equipment and the television

in question would be considered equipment which are

reasonably fit for their intended use.

The defendant does not have to guarantee the safety

of the seaman or to furnish an accident-free ship. A

ship or her appurtenances may be unseaworthy without

it being the fault of anyone, as negligence is not a pre-

requisite to the determination of whether or not a vessel

or its equipment is unseaworthy.

Now, in this connection, the plaintiff has the burden

of proof. Plaintiff must prove from a preponderance of

the evidence that the vessel at the time of the accident

was unseaworthy and the basis for the unseaworthiness

was the fact that it had a television that was inoperative

and required it to be carried forward in the vessel for

[273] the purpose of being repaired. And that in returning

the television the plaintiff injured his back, which un-

seaworthiness was a proximate cause of his injuries.

Now, “proximate cause” means that cause which pro-

duces an event and without which event it would not

have occurred. To be a proximate cause of an event it

should have been reasonably anticipated and foreseen by

a person of ordinary prudence in the exercise of ordinary

care that an event or some similar event would result

in such cause as a natural and probable consequence.

Therefore, the Court would charge you that if you find

from a preponderance of the evidence that the vessel

at the time in question, at the time the plaintiff sustained

15

his injury and you find that he did sustain an injury from

a preponderance of the evidence and that such unsea-

worthiness was the cause of his accident and injury then

you would find for the plaintiff and give consideration to

the question of damages [274] that you would award the

plaintiff.

Now we will turn to the obligation of negligence. The

plaintiff also says that the officer, Mr. Mason, was negli-

gent in not assisting him in carrying the TV and permitting

him to carry it back to the place where it would be used

by the crew. And that the negligence of the defendant

through its officers and servants and agents contributed to

and played a part, no matter how small, in causing his ac-

cidental injury. Therefore, the Court would instruct you

that if you believe from a preponderance of the evidence

that the defendant or any of its employees was negligent

in the manner in which the plaintiff contends even in the

slightest degree and that the negligence contributed to or

played any part, no matter how small, in causing plain-

tiffs personal injuries, then the defendant is responsible

for the injury and you would find for the plaintiff and

give consideration to [275] the question of damages.

Now, the defendant contends that it was not guilty of

negligence. Furthermore, they contend that the vessel

was not unseaworthy. Therefore, the Court would charge

you that if you fail to find the vessel was unseaworthy

from a preponderance of the evidence and that the un-

seaworthiness was a proximate cause of the accident, you

would find for the defendant on the issue of unseaworthi-

ness. Likewise, on the issue of negligence, if you should

find that the plaintiff had failed to prove from a pre-

ponderance of the evidence that the defendant, through

its officer or fellow employees or its employees were

sug

¥ a ee ee

" =

16

guilty of some act of negligence as contended for by the

plaintiff and that such negligence contributed to or

played any part, no matter how small, in causing the

plaintiff injury, then you would find for the defendant.

The defendant further contends that the plaintiff himself

was contributorily negligent and that contributory negli-

gence [276] was the sole cause or the entire cause or the

complete cause of the injury, if any, that the plaintiff sus-

tained.

Now, the burden of proving contributory negligence

is upon the defendant. Contributory negligence does not

defeat the right of a seaman to recover damages for any

injury he has suffered if his injuries are a proximate

cause in part, either by unseaworthiness or by negli-

gence of the defendant.

“Contributory negligence” means the doing by the

plaintiff of that which a person of ordinary prudence in

the exercise of ordinary care would not have done under

the same or similar circumstances or the failure by the

plaintiff to do that which a person of ordinary prudence

in the exercise of ordinary care would have done under

the same or similar circumstances.

Therefore, if you should find that the plaintiff was

himself guilty of contributory negligence in not getting

assistance to help him carry the TV [277] and that such

negligence was a proximate cause, then you would de-

termine the extent to which his contributory negligence

contributed to his injury and the damages, if any, that

you award the plaintiff shall be diminished in proportion

to the extent of negligence attributable to the plaintiff.

Now, those are the issues pertaining to the liability of

the defendant and the right of recovery of the plaintiff.

17

Now, if you should find for the plaintiff under either the

theory of negligence or unseaworthiness and do not find that

his contributory negligence was the entire cause of his ac-

cident then you will give consideration to the question

of damages, or if you find that he contributed to cause

his accident by his own negligence which was a proximate

Cause, then you would reduce such damages as you might

find as plaintiff is entitled to as a result of negligence on

the part of the defendant or the vessel being [278] un-

seaworthy, and so indicate in your findings of damages.

Now, in this connection, the Court would instruct you

that there is evidence in the record that the plaintiff had

a pre-existing back condition. Now, this pre-existing back

condition will not prevent him from recovering damages

if you find liability on the part of the defendant unless

you find that his pre-existing condition is the sole cause

of the disability that he suffered after the incident of

March 11, 1973, while a seaman on the SS PURE OIL.

If you should find that his disability is entirely due to a

pre-existing back condition and not to the accidental in-

juries he contends on the SS PURE OIL on March 11,

then, of course, you would not find any damages for the

plaintiff. On the other hand, if you find that the ac-

cidental injury which the plaintiff contends that he suf-

fered on March 11, 1973, on the SS PURE OIL pre-

cipitated or incited or aggravated the pre- [279] existing

condition, then you may find damages to the extent of

the disability that he has sustained as a result of the ag-

gravation. In this connection, you would determine the

pecuniary loss sustained by plaintiff from the time of his

injuries until the date of the trial because of his inability

to work and earn money. You would also determine the

present cash value of the pecuniary loss that the plain-

; RB AE Om itre NET IT Spgs : et

18

tiff will in reasonable probability sustain in the future

beyond the date of his trial because of his inability to

work and earn money.

In other words, his loss of earning capacity. Third, the

mental and physical pain and suffering that the plaintiff

has endured from the time of his injury up to the time

of the trial and in the future. And you will indicate the

present value of these damages in dollars and cents.

Now, the Court has prepared the form of verdict that

you may use in [280] reaching your verdict. One is:

“We, the jury, find for the plaintiff, Billy R. Wimberly,

and assess damages at blank dollars,” to be filled in. by

the jury and a place to be signed by the foreman and by

each member of the jury. The other form of the verdict

being: “We, the jury, find for the defendant, Union Oil

Company of California”, a place to be signed by the

foreman and to be followed with the signatures of the

other five members of the jury. A place to be dated.

Now, in conclusion the Court would say that this

case, like any other, is to be decided by you fairly and

calmly with careful, honest and conscientious considera-

tion given to the evidence submitted under the rulings of

the Court. In weighing the credibility of the witnesses and

the weight to be given their testimony you must take into

consideration the interest and the motive that may have

prompted each and all of [281] the witnesses to testify

in the manner in which they have testified. Do not let

bias, prejudice, sympathy, resentment or any such emo-

tion play any part in your deliberation or speculate on

matters not shown by the evidence.

Now, Ladies and Gentlemen, we are going to submit

the case to you and it will be at this time that you may

19

begin your deliberation for the purpose of reaching a

unanimous verdict. In other words, the verdict must be

the verdict of each and every one of you.

The exhibits that have been offered in evidence will

be sent to you upon request by your foreman in writing.

If it is necessary for the jury to communicate with the

Court further to seek any further instructions, you will

do so in writing through your foreman.

The attorneys have a right to make observations and

objections to the Court’s Charge and if we have over-

looked something that we should have given you [282]

in the Charge, then it may be necessary for us to call

you back and give you further instructions. We do not

anticipate that this will be necessary at this time.

Now, Mr. Liday, you being the alternate juror, I sup-

pose we will have to excuse you at this time. We are

sorry that we will not be able to permit you to join the

jury in their deliberations, but we appreciate your pre-

sence and your willingness to serve as a juror. We will

excuse you until May 6, at which time we will expect

the jury, entire jury panel to return. That will be Mon-

day, May 6, at 10:00 o’clock.

All right, if you will follow the Marshal to the jury

room and begin your deliberation.

(REPORTER'S NOTE: Whereupon the jury retired

for deliberation at 10:45 A. M.)

THE COURT:

Mr. Mehaffy, do you have any observations or objec-

tions to make [283] to the Court’s Charge?

20

MR. MEHAFFY:

We have no objections, Your Honor.

THE COURT:

Mr. Julian?

MR. JULIAN:

Your Honor, I believe that portion of the charge which

was related to unseaworthiness concerning the TV set,

I don’t think that comes within the doctrine of unsea-

worthiness as we understand it and it applies in law.

I understood from our discussion last night that perhaps

the Court might agree or disagree with me, but you were

going to put it in anyhow. I wanted to protect my position,

my record, and I do not believe that was covered. Apart

from that, I have no other objections to it.

THE COURT:

We can appreciate the fact that it is necessary for you

to object, Mr. Julian, and the Court is not certain about

this matter of the condition of the television set making

the vessel unseaworthy. I have serious doubts that it will,

but out of pre- [284] caution I thought it was better to

give it. As I understand, you object not to the form of

the Charge, but to the substance?

MR. JULIAN:

Yes, that’s right, Your Honor. Thank you, sir.

THE COURT:

We will stand in recess, awaiting the verdict of the jury.

21

SUPPLEMENT B

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 74-2207

BILLY B. WIMBERLY,

Plaintiff-Appellee Cross-Appellant

VS.

UNION OIL COMPANY OF CALIFORNIA,

Defendant-Appellant Cross-Appellee

Appeals from the United States District Court for the

Eastern District of Texas

(March 18, 1975)

Before: GOLDBERG and RONEY, Circuit Judges, and

GROOMS, District Judge.

PER CURIAM: AFFIRMED. See Local Rule 21.’

1. See N.L.R.B. v, Amalgamated Clothing Workers of America,

1970, 430 F.2d 966,

22

SUPPLEMENT C

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

OFFICE OF THE CLERK

Edward W. Wadsworth 600 Camp Street

Clerk New Orleans, La. 70130

April 23, 1975

TO ALL COUNSEL OF RECORD

Re: 74-2207 — Billy B. Wimberly vs. Union Oil Co.

of California

Dear Counsel:

This is to advise that an order has this day been entered

denying the petition( ) for rehearing, and no member of

the panel nor Judge in regular active service on the Court

having requested that the Court be polled on rehearing

en banc (Rule 35, Federal Rules of Appellate Procedure;

Local Fifth Circuit Rule 12) the petition( ) for rehear-

ing en banc has also been denied.

See Rule 41, Federal Rules of Appellate Procedure for

issuance and stay of the mandate.

Very truly yours,

EDWARD W. WADSWORTH

CLERK

By /s/ BARBARA KREI

Deputy Clerk

cc: Mr. Robert M. Julian

Mr. James W. Mehaffy, Jr.

— “= RS I ER Py REO IRN Le