{ "id": 3320011, "name": "THOMAS ESSARY, Plaintiff-Appellee, v. LOUISIANA DOCK CO., Defendant-Appellant", "name_abbreviation": "Essary v. Louisiana Dock Co.", "decision_date": "1978-11-22", "docket_number": "No. 77-265", "first_page": "182", "last_page": "188", "citations": [ { "type": "official", "cite": "66 Ill. App. 3d 182" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "447 F.2d 781", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 808692 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/f2d/447/0781-01" ] }, { "cite": "305 F. Supp. 836", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3040016 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/f-supp/305/0836-01" ] }, { "cite": "188 N.E.2d 337", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "341" } ], "opinion_index": 0 }, { "cite": "39 Ill. App. 2d 315", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2455004 ], "pin_cites": [ { "page": "324" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/39/0315-01" ] }, { "cite": "96 L. Ed. 205", "category": "reporters:federal", "reporter": "L. Ed.", "pin_cites": [ { "page": "209" } ], "opinion_index": 0 }, { "cite": "342 U.S. 187", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 640749 ], "weight": 2, "pin_cites": [ { "page": "190" }, { "page": "218" } ], "opinion_index": 0, "case_paths": [ "/us/342/0187-01" ] }, { "cite": "98 L. Ed. 143", "category": "reporters:federal", "reporter": "L. Ed.", "opinion_index": 0 }, { "cite": "346 U.S. 406", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6931421 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/346/0406-01" ] }, { "cite": "370 N.E.2d 826", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "55 Ill. App. 3d 822", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3410258 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/55/0822-01" ] }, { "cite": "352 U.S. 500", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6162070 ], "weight": 3, "pin_cites": [ { "page": "506" }, { "page": "499" }, { "page": "448" } ], "opinion_index": 0, "case_paths": [ "/us/352/0500-01" ] }, { "cite": "274 N.E.2d 200", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "1 Ill. App. 3d 40", "category": "reporters:state", "reporter": "Ill. App. 3d", "opinion_index": 0 }, { "cite": "48 N.E.2d 206", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "318 Ill. App. 403", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3401640 ], "opinion_index": 0, "case_paths": [ "/ill-app/318/0403-01" ] }, { "cite": "369 N.E.2d 302", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "54 Ill. App. 3d 168", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3404496 ], "weight": 2, "pin_cites": [ { "page": "171-72" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/54/0168-01" ] }, { "cite": "315 F.2d 660", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 172859 ], "year": 1963, "pin_cites": [ { "page": "662" } ], "opinion_index": 0, "case_paths": [ "/f2d/315/0660-01" ] }, { "cite": "375 U.S. 253", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11718947 ], "weight": 3, "year": 1963, "opinion_index": 0, "case_paths": [ "/us/375/0253-01" ] }, { "cite": "375 U.S. 34", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11716349 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/375/0034-01" ] }, { "cite": "262 N.E.2d 146", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "127 Ill. App. 2d 145", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2473160 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/127/0145-01" ] }, { "cite": "170 N.E.2d 635", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "28 Ill. App. 2d 117", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5219280 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/28/0117-01" ] }, { "cite": "33 U.S.C. \u00a7901", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1970, "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 }, { "cite": "46 U.S.C. \u00a7688", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "year": 1970, "opinion_index": 0 } ], "analysis": { "cardinality": 838, "char_count": 14064, "ocr_confidence": 0.896, "pagerank": { "raw": 5.207966869300525e-08, "percentile": 0.3275115653460877 }, "sha256": "339346e1b94bc1e17bf3bc8295fc69cc58092b80a4785d6fc3d1b03af988065e", "simhash": "1:3a337d93feb315b5", "word_count": 2301 }, "last_updated": "2023-07-14T21:04:20.946597+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THOMAS ESSARY, Plaintiff-Appellee, v. LOUISIANA DOCK CO., Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE GEORGE J. MORAN\ndelivered the opinion of the court:\nDefendant Louisiana Dock Company appeals from the judgment of the circuit court of Madison County entered upon a jury verdict awarding $37,500 to plaintiff Thomas Essary for injuries he received while in defendant\u2019s employ. Plaintiff brought this action pursuant to the Merchant Marine Act of 1920 (46 U.S.C. \u00a7688 (1970)). Plaintiff\u2019s complaint sought damages for loss of portions of two fingers which he alleged was caused by the negligence of defendant and/or the unseaworthiness of its vessel.\nThe incident giving rise to plaintiff\u2019s injuries occurred on November 8, 1974. Approximately four months earlier plaintiff had been hired by defendant Louisiana Dock Company as a deckhand. At that time he was 18 years of age and had a 10th grade education. Plaintiff withdrew from high school at the age of 17 after having failed two grades. His duties while in defendant\u2019s employ included coupling barges together as well as sweeping and welding. In this capacity plaintiff worked on three vessels: The Gibralter I, the Gibralter II and the Joe Pickering.\nOn the day in question, the plaintiff was working on the Joe Pickering, a dredge boat. He received orders from his superior, Jack Slagle, to release a winch containing a cable running from the dredge to another winch or \u201cdeadman\u201d located on shore. The two winches on this boat, installed just a week before, had not previously been operated by plaintiff. As he encountered some difficulty in loosening the winch, plaintiff jerked down the lever in order to release the cable. Plaintiff had been given no specific instructions concerning the operation of the winch from any of defendant\u2019s supervisory personnel and performed this task based solely on his observation of his co-workers. After plaintiff completed the jerking motion, the winch began to spin very rapidly, pulling plaintiff\u2019s left hand into it and severing portions of two fingers.\nAfter subsequent operations to revise the stumps of these fingers, plaintiff resigned from his position at defendant company in order to seek other kinds of employment. He had difficulty in performing his job at Louisiana Dock Company, and had experienced pain in his fingers if they became cold or were bumped. Plaintiff considered entering the Navy or finishing school, neither of which plans were realized. Plaintiff then became employed at Deena Products, a clay lamp factory, where he received $2.35 an hour \u2014 25% less than his salary at the time he left the defendant\u2019s employ. After resigning from that job, he worked in a gasoline station for approximately four months. During the summer of 1976 he underwent further surgery on his ring finger. He was again hospitalized for three days and spent one month off work. After recovering from this third operation, he returned to Deena Products. Sometime after his attempt to attend night school had failed, plaintiff applied but was refused a job with the defendant company.\nPlaintiff called two expert witnesses, one of whom was Arthur H. Zimmer, a licensed merchant marine officer. He opined that it would not be safe or sound practice to allow a young, inexperienced person to operate a winch without instruction. The second expert witness was a medical expert, Dr. Kenney. He testified that plaintiff would probably suffer further loss of mobility and dexterity in his fingers as well as continued pain. This testimony rebutted defendant\u2019s expert who stated that there would only be some weakness in the fingers.\nDefendant first contends that the trial court erred in granting plaintiff\u2019s motion in limine which prohibited the defendant from introducing evidence that plaintiff had applied for and received benefits under the Federal Longshoremen\u2019s and Harbor Workers\u2019 Compensation Act (33 U.S.C. \u00a7901 et seq. (1970)). One of the issues at trial was whether the plaintiff was a member of a crew of a vessel operating in the waters of the United States and thus entitled to the benefits of 46 U.S.C. \u00a7688 (1970), commonly called the Jones Act and the general maritime law of the United States. Defendant argues that refusal to admit this evidence was reversible error since it constituted an admission against interest, and was therefore being admitted for a legitimate purpose other than to advise the jury that a plaintiff has been partly paid for his injury.\nDefendant cites Mokrzycki v. Olson Rug Co., 28 Ill. App. 2d 117,170 N.E.2d 635, and Skalon v. Manning, Maxwell & Moore, Inc., 127 Ill. App. 2d 145, 262 N.E.2d 146, in support of its contention. In these cases evidence of plaintiff\u2019s recovery of Workmen\u2019s Compensation was admitted to show the bias of a co-employee witness who rftight wish to gain some benefit for his employer in a case against a third party. However, evidence of longshoreman compensation in this case was to be used solely to indicate what plaintiff thought to be his legal status, not to show interest, bias or prejudice as defendant suggests in his brief.\nTwo Federal cases have dealt with similar problems: Tipton v. Socony Mobil Oil Co., 375 U.S. 34,11 L. Ed. 2d 4, 84 S. Ct. 1, and Eichel v. New York Central R.R. Co., 375 U.S. 253, 11 L. Ed. 2d 307, 84 S. Ct. 316. As the Fifth Circuit\u2019s analysis of the relevancy of this type of evidence is particularly enlightening, we quote at length from its opinion in Tipton v. Socony Mobil Oil Co., 315 F.2d 660, 662 (5th Cir. 1963):\n\u201cFinally, appellant complains of the overruling of his motion to instruct appellee not to refer to, or introduce into evidence, the fact that appellant had received payments under the Longshoremen\u2019s and Harbor Workers\u2019 Compensation Act. Appellee argues that the motion was properly overruled because the fact that appellant received such payments went to show that appellant considered himself a drilling employee rather than a seaman; therefore, the fact that appellant received such payments was relevant to the issue of his status. We do not agree. Regardless of what the appellant, at any particular time, thought was his status, the issue of status depended upon objective facts. Appellant\u2019s beliefs, being wholly subjective, in no way affected the issue of status and hence was irrelevant.\u201d\nIn Moran v. Tomita, 54 Ill. App. 3d 168, 369 N.E.2d 302, the court stated:\n\u201cIn Springer v. Illinois Transit Lines, Inc. (1943), 318 Ill. App. 403, 48 N.E.2d 206, this court held that plaintiff\u2019s petition to the industrial commission was properly excluded as immaterial. In so holding, the court stated at page 409: \u2018The allegation in such petition as to employment did not tend to establish or change the actual status of the decedent at the time he received the injuries.\u2019 In Redmon v. Sooter (1971), 1 Ill. App. 3d 40, 274 N.E.2d 200, this court ruled that the exclusion of plaintiff\u2019s application to the industrial commission did not constitute reversible error. The court stated at page 411: \u2018Such a statement is not, in any case, conclusive and essentially we agree with the Springer opinion that determination of plaintiff\u2019s legal status, which is an ultimate issue, must be drawn from factual circumstances surrounding his relationship with Green Giant Corporation rather than from his own conclusional statement, self-serving when made.\u2019 In Redmon, the court pointed out that the jury had heard the testimony of witnesses concerning plaintiff\u2019s employment, that the subject had been covered in final argument, and that the jury had been instructed on defendant\u2019s affirmative defense. In the present case, both parties testified as to their employment status at the time of the trip to Park Ridge and regarding the board of education\u2019s role in that trip. Counsel referred to the subject of plaintiff\u2019s employment during closing argument, and the jury was instructed on defendant\u2019s affirmative defense. The issue of plaintiff\u2019s employment was treated thoroughly at trial, and the trial court did not err in excluding evidence that plaintiff had filed a claim for benefits with the industrial commission.\u201d 54 Ill. App. 3d 168, 171-72.\nWe adopt the reasoning of Moran and the Federal cases cited in this opinion. We therefore hold that the trial court did not err in excluding evidence that plaintiff had previously applied for benefits under the Longshoremen\u2019s and Harbor Workers\u2019 Compensation Act.\nDefendant also challenges the sufficiency of the evidence. At the close of all the evidence defendant moved for a directed verdict, which motion was denied. Defendant now claims that this denial constitutes reversible error in that plaintiff had not sustained his burden of proof on the causal connection between defendant\u2019s negligence and plaintiff\u2019s accident. Substantive questions in Jones Act cases are to be governed by Federal law. The question of burden of proof in F.E.L.A. or Jones Act cases is reviewed in Rogers v. Missouri Pacific R.R. Co., 352 U.S. 500,506, 1 L. Ed. 2d 493, 499, 77 S. Ct. 443, 448, where the court declared:\n\u201cUnder 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.\u201d\nRogers has been cited favorably by this court in Harp v. Illinois Central Gulf R.R. Co., 55 Ill. App. 3d 822, 370 N.E.2d 826, where the same standard, indeed the same wording, was used. In this case plaintiff produced evidence of several actions of the employer which could reasonably have led a jury to find that the employer\u2019s negligence had a causal connection with the injury. First, plaintiff was given no instruction regarding the proper method of handling the winch; second, if plaintiff\u2019s method of handling the winch was proper, then the winch itself was unsafe as indicated by Captain Zimmer\u2019s testimony, because it required a man to place his hands in close proximity to the cogs, while other available models did not. These facts were properly submitted to the jury to determine the question of the relationship between defendant\u2019s possible negligence and plaintiff\u2019s injury.\nDefendant next contends that the trial court committed reversible error in allowing plaintiff\u2019s instructions numbered 11, 12 and 15 to go to the jury. Defendant objects because these instructions use the term \u201cemployee\u201d rather than \u201cseaman\u201d in defining who may receive Jones Act benefits. Defendant cites Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 98 L. Ed. 143, 74 S. Ct. 202, in support of the proposition that the substantive issues in a Jones Act case are controlled by Federal rather than State law. Defendant further asserts that the Supreme Court in Desper v. Starved Rock Ferry Co., 342 U.S. 187, 190, 96 L. Ed. 205, 209, 72 S. Ct. 216, 218, has made a distinction between \u201cseamen\u201d and \u201cemployees\u201d by stating: \u201cSeamen were given the rights of railway employees by the Jones Act, but the definition of \u2018seaman\u2019 was never made dependent on the meaning of \u2018employee\u2019 as used in legislation applicable to railroads.\u201d Defendant concludes that these two cases indicate that Federal law would prohibit the use of instructions equating these two terms. In this case, however, any possible error has been averted by plaintiff\u2019s subsequent instructions numbered 19 and 20 concerning plaintiff\u2019s specific status. These instructions relate to the special interrogatory which required the jury to determine whether plaintiff was a crew member of the Joe Pickering at the time of his injury. Plaintiff\u2019s instruction 19 submitted the factual issue of plaintiff\u2019s status as a crew member to the jury and instruction 20 defined for the jury the term \u201cvessel.\u201d Defendant raised no objection to either of these instructions nor to the special interrogatory; thus he may not now complain that plaintiff was not found to be included in the special class of employees known as \u201cseamen.\u201d Plaintiff\u2019s status was, in fact, the first question to be determined by the jury and its answer affirmed that he was a seaman. The court committed no reversible error. Moreover, no harm has resulted to the defendant from the use of the generic term \u201cemployee\u201d in plaintiff\u2019s instructions numbered 11, 12 and 15, since the jury specifically found plaintiff to be a seaman.\nFinally, defendant contends that the court erred in faffing to declare a mistrial on the basis of certain remarks made by plaintiff\u2019s attorney during closing argument. These comments inferred that some connection existed between defendant\u2019s refusal to rehire plaintiff and plaintiff\u2019s institution of this lawsuit.. Defendant objected at the time the statement was made and the court sustained the objection on the basis that there had been no showing that the suit had been filed at the time plaintiff was denied a job. The court may exercise its sound discretion with regard to the propriety of counsel\u2019s comments on the evidence. (Jackson v. Whittinghill, 39 Ill. App. 2d 315, 324,188 N.E.2d 337, 341.) Under the circumstances present in this case, the court has sustained an objection to an improper remark and where no further remarks of this kind are made, the emphasis on the improperly mentioned subject is so slight as to be nonprejudicial. Plaintiff\u2019s counsel\u2019s remark was not so inflammatory as to require reversal.\nFor the foregoing reasons, we affirm the decision of the circuit court of Madison County.\nAffirmed.\nEBERSPACHER, P. J., and KARNS, J., concur.\nUnder Daughdrill v. Diamond \u201cM\u201d Drilling Co., 305 F. Supp. 836 (W. D. La. 1969), status as \u201cseaman\u201d so as to permit recovery under this section is virtually synonymous with being a \u201cmember of the crew of a vessel,\u201d reversed on other grounds at 447 F.2d 781 (5th Cir. 1971).", "type": "majority", "author": "Mr. JUSTICE GEORGE J. MORAN" } ], "attorneys": [ "Fritz G. Faerber and Malcolm D. Durr, both of Alton (Lucas & Murphy, of St. Louis, Missouri, of counsel), for appellant. \u2022", "Jerome J. Schlichter and David J. Letvin, both of Cohn, Carr, Korein, Kunin & Brennan, of East St. Louis, for appellee." ], "corrections": "", "head_matter": "THOMAS ESSARY, Plaintiff-Appellee, v. LOUISIANA DOCK CO., Defendant-Appellant.\nFifth District\nNo. 77-265\nOpinion filed November 22, 1978.\nFritz G. Faerber and Malcolm D. Durr, both of Alton (Lucas & Murphy, of St. Louis, Missouri, of counsel), for appellant. \u2022\nJerome J. Schlichter and David J. Letvin, both of Cohn, Carr, Korein, Kunin & Brennan, of East St. Louis, for appellee." }, "file_name": "0182-01", "first_page_order": 204, "last_page_order": 210 }