Koehler v. United States

• Decision Date: 28 March 1951
• Docket Number: No. 10238.,10238.
• Citation: 187 F.2d 933
• Parties: KOEHLER v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

187 F.2d 933 (1951)

KOEHLER v. UNITED STATES.

No. 10238.

United States Court of Appeals Seventh Circuit.

March 28, 1951.

COPYRIGHT MATERIAL OMITTED

Edward B. Hayes, Stephen A. Milwid, Chicago, Ill., for appellant.

Robert Branand, Jr., Emerson C. Whitney, Otto Kerner, Jr., U. S. Atty., John Peter Lulinski and Maurice C. Handelman, Asst. U. S. Attys., all of Chicago, Ill., for appellee.

Before MAJOR, Chief Judge, and DUFFY and FINNEGAN, Circuit Judges.

DUFFY, Circuit Judge.

This action was instituted in admiralty to recover damages (1) under the Jones Act, 46 U.S.C.A. 688, for injuries sustained by libelant on August 23, 1944, and (2) for wages, maintenance and cure. On said date libelant was employed as a seaman aboard the tanker, S. S. Mission Santa Maria, which was owned by respondent acting by the War Shipping Administration. The trial was to the court. The district judge filed a written opinion entitled, "Memorandum, Findings of Fact, Conclusions of Law and Judgment." The issues were decided favorably to libelant, and a judgment of $5,000 was entered against the respondent.

Libelant moved for the entry of findings of fact and conclusions of law, pursuant to General Admiralty Rule 46½, 28 U.S.C.A.,¹ and for the vacating of the judgment and for entry of a decree in his favor increasing the award to such sum as would adequately indemnify him for his injuries and damages. The motions were denied and libelant brings this appeal from that part of the judgment fixing the damages at $5,000 and from the order denying the aforesaid motions.

On August 23, 1944, libelant, working as a fireman, while changing a burner in the upper starboard boiler, found it necessary to stand on a raised platform or catwalk approximately three feet above the floor plates of the fire room. Various valves, feed pump, water cooler and pipes were located directly behind him, but there was no guard rail along the edge of the catwalk or platform.

From the start of the voyage from San Francisco on August 5, 1944, libelant and others of the crew experienced difficulty in changing burners because oil, clinkers and fire came shooting out of the channels of the boilers from which burners had previously been removed. These occurrences were reported to the superior officers aboard the vessel, and attempts which proved to be ineffectual were made to remedy the problem.

At the time when libelant was injured, a considerable amount of oil and flames shot out of the channel from which he was removing the burner. Libelant instinctively stepped back, which caused him to fall into the unguarded bilge. He struck his head and was rendered unconscious. His head was injured in the occipital region, and his right knee and his back were also hurt. Five days later, when the ship was in the Canal Zone, libelant was sent to the Gorgas Hospital at Balboa for examination. The hospital diagnosis was "(1) sprain, right knee; (2) contusions, occipital region of head; (3) sprain, severe, lumbar region of spine."

Libelant returned to the vessel, and during the voyage to Australia performed some light duties, but complained of recurring headaches and spells of dizziness. Finally he was unable to perform any duties, and upon the return of the vessel to Balboa, libelant was discharged on October 26, 1944, as unfit for duty.

Although findings to such effect were not to be found among those included in the court's opinion, it seems to be without dispute that at the time of his injuries libelant was thirty-eight years of age, that his base rate of pay was $107.50 per month, that his average overtime pay was $42.50 per month, and that his bonus earnings were on the basis of $60.90 per month.

The district court held that respondent was guilty of negligence, both in providing libelant with defective appliances and failing to provide him with a safe place to work, and that such negligence constituted the proximate cause of his injuries. In making the award of $5,000 the court specifically stated that it included recovery "for the injuries, maintenance, cure and wages for the remainder of the voyage subsequent to libelant's discharge."

Hundreds of citations might be given where the rule is categorically stated that on an appeal in admiralty there is a trial de novo; however the qualification of that general rule is just as widely recognized, and that is, that the findings of the district court will be accepted by the appellate court unless clearly against the preponderance of the evidence. Leathem Smith-Putnam Navigation Co. v. Osby, 7 Cir., 79 F.2d 280, 282; Kulack et al. v. The Pearl Jack, et al., 6 Cir., 178 F.2d 154, 155; Great Lakes Towing Co. v. American, S. S. Co., 6 Cir., 165 F.2d 368, 370. Such findings will not be disturbed unless clearly erroneous. Hodges v. Standard Oil Co. of New Jersey, 4 Cir., 123 F.2d 362, 363; Crist v. United States War Shipping Administration, 3 Cir., 163 F.2d 145, 146; Cappelen v. United States, D.C.Cir., 185 F.2d 754, 755; The Josephine and Mary, 1 Cir., 120 F.2d 459, 463; Gibbons v. United States, 1 Cir., 186 F.2d 488, 489.

Such findings of the trial court as may be found in its opinion herein are clearly sustained by the evidence. Respondent did not cross appeal, nor did it file an assignment of errors. In Chicago Insurance Co. v. Graham and Morton Transportation Co., 7 Cir., 108 F. 271, we held that our rules requiring assignments of error apply to appeals in admiralty. Hence there is no question here before us on the liability of respondent. We shall, therefore, only consider libelant's contention that the award of $5,000 to him is grossly inadequate.

Subsequent to the date of the court's opinion, libelant in moving for entry of special findings of fact and separate conclusions of law, presented to the court proposed findings of fact and conclusions of law which adopted as far as possible the court's language in the findings which were made in the court's opinion. Certain other proposed findings were included, such as the amount that libelant was entitled to recover by reason of permanent impairment of his earning power, and also the sum he was entitled to recover for pain and suffering. The court declined to sign such proposed findings, but we cannot consider that such refusal meant that the court disagreed therewith. In an exchange of correspondence with proctor for libelant the trial judge, in a very courteous two-page letter, explained that he considered the findings contained in his opinion as being sufficient under Rule 46½ of the Admiralty Rules; he also pointed out the great amount of work facing the district court judges in Chicago and, as we interpret the letter, that his refusal to make the formal findings in addition to his opinion was based on the idea that the district judges should not be required to take the time to perform functions which were not considered necessary. The judge relied upon the amendment to Rule 52(a), Federal Rules of Civil Procedure, 28 U.S.C.A., which provides that if the findings of fact and conclusions of law appear in an opinion it will be sufficient compliance with that rule. The judge recognized of course that no such amendment had been made to Admiralty Rule 46½, but felt that Admiralty Rule 46½ should be interpreted as though similarly amended.

This court is well aware of the condition of the court calendar in the United States District Court for the Northern District of Illinois, Eastern Division.² Certainly the judges should not be required to assume and perform duties that are unnecessary. Nevertheless, both Rule 52(a), Federal Rules of Civil Procedure, and Admiralty Rule 46½ require the trial court to find the facts specially and state separately its conclusions of law thereon.

In Dearborn Nat. Casualty Co. v. Consumers Petroleum Co., 7 Cir., 164 F.2d 332, 333, this court said: "* * * While the burden and responsibility to make findings of fact and state conclusions of law thereon are primarily upon the trial court, certainly counsel for the parties, especially the prevailing party, have an obligation to a busy court to assist it in the performance of its duty in this regard."

In the case at bar counsel for libelant performed his duty and presented to the court proposed findings in concise and acceptable form. Included were proposed findings as to the length of the voyage, the time lost by libelant from gainful employment, and as to a bill for...