Fitzgerald v. United States Lines Company

Decision Date29 June 1962
Docket NumberNo. 194,Docket 26716.,194
Citation306 F.2d 461
PartiesThomas I. FITZGERALD, Public Administrator of the County of New York, as Administrator of the goods, chattels and credits of Andres San Martin, Deceased, Plaintiff-Appellant, v. UNITED STATES LINES COMPANY, Defendant.
CourtU.S. Court of Appeals — Second Circuit

Theodore H. Friedman, Benjamin Glickman, Jacob Rassner, New York City, for plaintiff-appellant.

Matthew L. Danahar, Kirlin, Campbell & Keating, New York City (John A. Dowd, New York City, of counsel), for defendant.

Before LUMBARD, Chief Judge, and CLARK, WATERMAN, MOORE, FRIENDLY, SMITH, KAUFMAN, HAYS and MARSHALL, Circuit Judges.

FRIENDLY, Circuit Judge.

This action against United States Lines Company, begun in the Southern District of New York by Andres San Martin, a seaman employed on defendant's vessel, the S.S. American Reporter, has been continued, on his death after trial, by the Public Administrator of New York County. The complaint, filed in 1955 and brought to trial in 1960, alleged two causes of action. The first, relying specifically upon the Jones Act, 46 U.S.C.A. § 688, asserted that by reason of the unseaworthiness of the American Reporter and defendant's negligence, plaintiff had been caused to twist and strain his back while assigned to carry barrels of cement up the ship's gangway on November 6, 1954, and that defendant was further negligent "in failing to provide the plaintiff with timely, adequate, proper and competent medical care and attention and maintenance and cure, thereby aggravating his condition," with total damages of $75,000. The second was for maintenance and cure in the sum of $10,000.

Plaintiff's citizenship was not alleged. Defendant was alleged to be, in paragraph First, "a domestic corporation organized and existing under and by virtue of the Laws of the State of New York" and, in paragraph Second, "a foreign corporation duly licensed to do business within the State of New York." Paragraph Third alleged that "the defendant had an office for the transaction of business in the Borough of Manhattan, City and State of New York." Compliance with F.R.Civ.Proc. 8(a) (1), 28 U.S.C., demanding "a short and plain statement of the grounds upon which the court's jurisdiction depends," was evidently intended to be met by paragraph Ninth: "Plaintiff elects to maintain this action under the provisions of Section 33 of the Merchant Seamen's Act as of June 15, 1920, C. 250 41 Stat. 1007 otherwise known as the Jones Act." There was endorsed on the complaint "Plaintiff Demands a Jury Trial." In its answer defendant denied being a New York corporation and admitted being a foreign corporation and having a New York office.

Before a jury was chosen, Judge Levet directed that the claim for maintenance and cure be tried to the court only; counsel for plaintiff excepted. On the following morning, discussion of this was resumed in the robing room before the taking of testimony began. Plaintiff's counsel stated that jury trial of maintenance and cure "is a matter of choice for the District Court," and also that "The plaintiff is entitled to a jury on this action which is properly before this Court on a common-law basis" — without further amplification save for reference to "the authority of Jenkins v. Walker" presumably Jenkins v. Roderick, 156 F.Supp. 299 (D.Mass.1957), and "the discussion of that case by the Supreme Court in Romero v. International Terminal." The judge adhered to his ruling "that in this court, in the Second Circuit, it is permissible and authorized to try maintenance and cure to the Court."

At the conclusion of the trial Judge Levet submitted to the jury six questions, relating respectively to negligence, unseaworthiness, resulting injury, amount of damages, contributory negligence, and its degree. The jury gave negative answers to the first two questions; consequently, in accordance with the judge's direction, it did not answer the last four. Appellant makes no complaint as to the form of the questions or the judge's charge; he does complain about certain rulings excluding evidence, which we will consider below.

In an opinion later filed, the judge found that San Martin had incurred a back injury while in the service of the ship and also suffered from a cardiovascular condition due in part to untreated syphilis; that he had reached the point of maximum recovery for both disabilities on March 1, 1955, when he was discharged from a United States Public Health Service Hospital; and that liability for maintenance and cure was thus limited to the period, 28 days, before he entered the hospital, to wit, $224. Although appellant criticizes the judge's determination with respect to maintenance and cure, his principal complaint on that aspect of the case is that the judge should not have made any determination but ought to have left the issue to the jury; as to the criticisms apart from this principal complaint, it suffices to say that the judge's determination was not in any view clearly erroneous.

Because the analysis of the right to jury trial of the claim for maintenance and cure made by a majority of the panel conflicted with a recent dictum on the subject by this Court, see Mr. Justice Frankfurter in Western Pacific Railroad Case, Western Pacific Railroad v. Western Pac. R. Co., 345 U.S. 247, 270, 73 S.Ct. 656, 97 L.Ed. 986 (1953), and also because the problem constantly recurs in the district courts, we determined that the case should be considered in banc, upon the briefs and argument already had. This consideration has produced a variety of views, with none commanding a majority. It will thus be convenient to dispose of the issues relating to the trial of the personal injury claim, which none of us would have thought appropriate for in banc consideration if standing alone, before proceeding to the question of jury trial of the claim for maintenance and cure.

I.

Certain of appellant's objections to rulings excluding evidence on his personal injury claim, relating to San Martin's explanation of his failure to make earlier complaint about his injury, his colloquy with physicians at the Public Health Service clinics and hospital, and a report by a physician who testified for him, are rendered moot by the special verdict negating unseaworthiness or negligence; we need concern ourselves only with the exclusion of evidence relating to the accident itself.

Appellant complains that San Martin was not allowed, on direct examination, to testify that he had objected to carrying the two heavy barrels of cement up the gangway. Although we can see no sufficient reason for this ruling, it was not prejudicial since counsel returned to the subject on redirect and, without objection, elicited testimony that San Martin had told his boss, Manzo, the mission was "too dangerous" and the boss had answered "You have to do anyway." Appellant next urges that San Martin was not allowed to testify why he moved from side to side while ascending the gangway. Again the ruling seems needlessly severe but not, as matters developed, prejudicial. The evident purpose of the testimony was to show the gangway was unstable. San Martin was allowed to testify that he moved and that the gangway moved; the physical layout of the gangway was in evidence; and the judge stated in his charge, without exception from plaintiff's counsel, "As appears by the stipulation read to you this morning, it is agreed that the nature and position of the gangway does not enter into the disposition of this case."

Finally, and most important, appellant objects that one of San Martin's fellow-employees, Murrell, was not allowed to answer a question as to conversations with Manzo about bringing aboard engine stores within a month before the accident, even after it had been shown that the weights of the stores on the prior occasion were less than the 100 pounds San Martin was ordered to carry on the day of the alleged injury. When the judge inquired as to the pertinency of this testimony, counsel answered, not very informatively, "Prior and similar loading procedure," to which the court responded "It is too remote." Assuming in appellant's favor, perhaps somewhat generously, that counsel's remark was an offer to prove that Murrell had complained to Manzo about the manual loading of lesser weights, the evidence should have been admitted. Knowledge of danger is relevant to a determination of negligence, the Nitro-Glycerin Case, 15 Wall. 524, 536-537, 82 U.S. 524, 536-537, 21 L.Ed. 206 (1873), and evidence that such knowledge was gained through an express communication is admissible. 2 Wigmore, Evidence (3d ed. 1940) § 245; New York Life Ins. Co. v. Seighman, 140 F.2d 930, 932-933 (6 Cir., 1944); Evans v. Pennsylvania R. R., 255 F.2d 205, 209-210, 70 A.L.R.2d 158 (3 Cir., 1958); Smith v. Whittier, 95 Cal. 279, 30 P. 529 (1892); Jenkins v. Reichert, 125 Conn. 258, 5 A.2d 6 (1939); Dowling v. L. H. Shattuck, Inc., 91 N.H. 234, 17 A.2d 529 (1941); Killian v. Andrews Mfg. Co., 187 N.C. 810, 123 S.E. 86 (1924). However, the probative effect of the excluded evidence would not have been great. The case differs significantly from those cited where the dangers were defects in machinery or property, things which the defendant might not notice on his own inspection and, in many instances, so technical that he might not appreciate the danger if he did; in such cases proof of notice is highly critical since there may be no basis for finding the defendant negligent without it. Here the issue related to the safety of the carrying of certain weights by men rather than machines. The jury had the evidence of experts called by both parties, San Martin's own testimony he had told Manzo the procedure was "too dangerous," and its own common sense; if the jury was not persuaded of negligence on that evidence, it hardly would have been by the addition of testimony that a fellow employee had complained...

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