Bay State Dredging & Contracting Co. v. Porter

• Decision Date: 14 February 1946
• Docket Number: No. 4080.,4080.
• Citation: 153 F.2d 827
• Parties: BAY STATE DREDGING & CONTRACTING CO. v. PORTER.
• Court: U.S. Court of Appeals — First Circuit

153 F.2d 827 (1946)

BAY STATE DREDGING & CONTRACTING CO. v. PORTER.

No. 4080.

Circuit Court of Appeals, First Circuit.

February 14, 1946.

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Hubert C. Thompson and Thompson & Twomey, all of Boston, Mass., for appellant.

A. L. Kaplan, of Boston, Mass., for appellee.

Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.

MAGRUDER, Circuit Judge.

Plaintiff, Clarence J. Porter, suffered serious injuries on May 10, 1943, in the course of his employment as combined deckhand and deckmate on the tug "Priscilla P. White" owned and operated by defendant. The tug was 50 ft. long, driven by a Diesel engine. In addition to plaintiff, the crew consisted of a captain and an engineer. At the time of the accident defendant was engaged in the business of dredging a channel in Cotuit Harbor, Massachusetts. The tug was being used in the repeated operation of towing scows loaded with dredgings from a point in the Harbor to a point on the "dumping grounds" in Vineyard Sound, returning with the empty scows in tow to the vicinity of the dredger.

The complaint contained two counts, the first for negligence under § 33 of the Merchant Marine Act of 1920 — the socalled Jones Act, 41 Stat. 1007, 46 U.S.C.A. § 688 — and the second for maintenance and cure under the general maritime law. Such joinder was proper, as we held in Nolan v. General Seafoods Corp., 1940, 112 F.2d 515, 517. Plaintiff obtained a verdict for $30,000 on Count I and $8,000 on Count II.¹ Deducting $2,151.25 as the sum already paid to plaintiff, the jury's final verdict was in the sum of $35,848.75. Judgment was duly entered for this amount, with costs. Defendant moved for a new trial on Count I on the grounds that the verdict was against the law and the evidence and the weight of the evidence and that the damages awarded were excessive. This motion was denied. A similar motion for a new trial on Count II was denied, upon condition that plaintiff file a remittitur in the sum of $3,500, which plaintiff promptly did. The amount of plaintiff's recovery thus stands at $30,000 on the Jones Act count and $4,500 on the count for maintenance and cure, or a total of $34,500.

On this appeal defendant urges only two alleged errors as grounds for reversal: (1) the refusal of the trial judge to grant defendant's motions for a directed verdict on each count and (2) his refusal to admit in evidence a certain release signed by the plaintiff, on the ground that the release was void as a matter of law.

As to the count for maintenance and cure, which did not require proof of negligence, there was not even a shadow of plausibility to the motion for a directed verdict. The trial judge correctly told the jury that the only issue for them to consider on this count was the amount of recovery. He instructed them that plaintiff was entitled to recover the fair and reasonable cost of board and lodging of a person in his circumstances for as long as the voyage lasted and also for a reasonable period thereafter during his convalescence, until he is cured so far as a cure is possible; also, all past, present and future medical and nursing expenses incurred or to be incurred in effecting a cure in so far as it is reasonably possible to effect a cure. So far as appears, no exception was taken to this charge laying down the measure of recovery; and no error in this respect has been suggested on appeal.

As regards the motion for a directed verdict on Count I, after a close study of the transcript of testimony we cannot say that the trial judge erred in his conclusion that there was substantial evidence from which the jury might rationally infer negligence on the captain's part resulting in injury to the plaintiff as a proximate consequence. Particularly, we would be loath to overturn a jury verdict in a case of this kind, where it is difficult, if not impossible, for an appellate court, reading the cold record, to gather the full import of the testimony as it would have been understood by trial judge and jury, due to the fact that witnesses repeatedly embellished their testimony by pointing to models of the tug and scow or by indicating on a plan or diagram. Cf. Channell v. Sampson, 1 Cir., 1939, 108 F.2d 315.

Just before the accident the tug had backed up to within a couple of feet of a loaded scow. There was a rope hawser 600 to 750 ft. long and 4½ in. in circumference coiled up partly on the fantail of the tug and partly on top of the deck house. Pursuant to his job as deckhand, plaintiff stepped up on the fantail and threw the end of the hawser with the bridle attached to the scowmen who were supposed to make it fast to the bitts on each side of the scow. Plaintiff then stepped off the fantail and placed a turn of the hawser around the after-bitts on the tug, as was the accustomed practice. At this point plaintiff noticed that one of the scowmen, who was inexperienced, had missed his end of the bridle, so he stepped back on the fantail, hauled the bridle and hawser from the water and threw it back to the scowman. It appears that, while plaintiff was still on the fantail instructing the scowman how to make the bridle fast, or just after he had turned and started to step off the fantail, the tug suddenly started up upon signal from the captain to the engineer. Plaintiff's right foot was caught in a bight of the hawser and was completely severed at the ankle before the captain heard the shouting and brought the tug to a stop. We cannot say that it was unreasonable for the jury to conclude that the cause of the accident was the negligence of the captain in starting up the tug without taking due precaution to ascertain whether the deckhand was well clear of the hawser. From the captain's position in the pilot house, he had only a very limited view of the stern of the tug, and could not see the position of the hawser. It was only a matter of a second or two, with no imperative need for "jumping the gun." If the captain had waited that brief interval, plaintiff would have reached a point on the deck between the rail and the deck house, a position of assured safety. The hazard of this type of accident was well understood in the business.

After first aid was administered, plaintiff was taken to the nearest hospital and his leg was amputated to a point about three inches below the knee. At the time of the trial plaintiff was still experiencing considerable pain and finding it difficult to get about even with the use of an artificial leg.

The more serious question has to do with the court's refusal to receive in evidence a release in terms as follows:

"Form B Preliminary Release

"I hereby remise, release, and forever discharge the said Bay State Dredging & Cont. Co., his or its successors, and assigns, (heirs, executors, employer administrators) from any and all claims and causes of actions, either at law, or in equity, or in admiralty or created by any State or Federal Statute, which I now have or may have in the future arising out of injuries sustained by me on or about the 10th day of May, 1943, at Cotuit Harbor, Mass. in consideration of the promise of Bay State Dredg. & Cont. Co. to pay me compensation payments in accordance with the employer schedule of payments contained in the Workmen's Compensation Act, so called, of the State of Mass., and on the further promise to furnish me the medical care and attention specified in said Compensation Act. (Extent of partial or total incapacity or disability to be determined by said employer's physician or surgeon.)

"This release does not in any way affect my right to enforce the promise of the said Bay State Dredging & Cont. Co. made herein.

"Clarence J. Porter "395 Meridian St. East Boston, Mass "Dated 6-7-43.

"Witness R. M. Tully 260 Tremont St., Boston, Mass."

If this release is valid, its legal effect is fairly clear: Plaintiff presently releases all claims and causes of action in exchange for a promise — a promise by defendant to make payments to the plaintiff in accordance with the schedule of payments in the Massachusetts Workmen's Compensation Act, and to furnish the medical care and attention specified in said Act; and if defendant fails to make the stipulated payments, plaintiff's remedy is an action to enforce the said promise.²

One of the defenses pleaded in the answer was that plaintiff had released all claims and causes of action and that defendant's insurer had made the weekly payments, and payments for medical care, called for by the contract of release.

On cross-examination, plaintiff admitted signing the above document. He testified that he told the agent of the insurance company he did not want to make a settlement until he found out "how good I was going to walk and how long I could stay in another job"; that he also told the agent he didn't understand the document, and was assured that it had nothing to do with settlement; that he did not realize at the time that he was relinquishing all demands against the defendant in consideration of payments according to the schedules of the Massachusetts Workmen's Compensation Act; that he did not consult a lawyer until a week or so later. The release was then marked for identification. Upon redirect examination, plaintiff testified that he hadn't read the release through in its entirety before signing it; that he hadn't understood it, and so told the agent; that he told the agent several times he didn't want to make a settlement then; that the agent assured him the document didn't have anything to do with settlement of the case, but that he would have to sign it in order to get compensation payments of $20 a week.

Subsequently, defendant called the insurance agent as a witness. On direct examination, the agent testified that he saw plaintiff at the insurance company's clinic and asked him if he was interested in an adjustment, to which plaintiff replied, "Yes, I would like to get some money"; that witness offered plaintiff the alternatives of a lump...