324 F.2d 126 (2nd Cir. 1963), 27, Franks v. United States Lines Co.

• Docket Nº: 27, 28024.
• Citation: 324 F.2d 126
• Party Name: Jay O. FRANKS, Plaintiff-Appellant, v. UNTED STATES LINES COMPANY, Defendant-Appellee.
• Case Date: November 01, 1963
• Court: United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 126

324 F.2d 126 (2nd Cir. 1963)

Jay O. FRANKS, Plaintiff-Appellant,

v.

UNTED STATES LINES COMPANY, Defendant-Appellee.

No. 27, 28024.

United States Court of Appeals, Second Circuit.

November 1, 1963

Argued Oct. 7, 1963.

Theodore H. Friedman, New York City (Henry Isaacson and Phillips, Nizer, Benjamin, Krim & Ballon, New York City, on the brief), for plaintiff-appellant.

William R. Mackey, of Kirlin, Campbell & Keating, New York City (James R. Campbell and Louis J. Gusmano, of Kirlin, Campbell & Keating, New York City, on th brief), for defendant-appellee.

Before CLARK, MOORE, and KAUFMAN, Circuit Judges.

CLARK, Circuit Judge.

Jay O. Franks, formerly a wiper on defendant's vessel the 'S.S. American Veteran,' seeks to recover damages for personal injuries allegedly sustained by him in a fall down one of the vessel's stairways. The issues of negligence and unseaworthiness raised by his allegations were submitted to a jury, which found against him. Judgment for defendant was accordingly entered on this verdict. The court reserved to itself the issue of maintenance and cure, following the then controlling authority of Fitzgerald v. United States Lines Co., 2 Cir., 306 F.2d 461, and allowed plaintiff's claim for a

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portion of the period for which he had sought it.

Plaintiff attacks the charge in this case on varied grounds, but we find none of them to be sustained. Trial judges must be allowed some leeway, and absolute clarity is hardly to be always expected. True, a single ruling can vitiate an entire charge if it is on a vital issue and is misleading. DeLima v. Trinidad Corp., 2 Cir., 302 F.2d 585. But here the areas of ambiguity which plaintiff stresses were made sufficiently clear by the charge as a whole to assure him a fair consideration of all his theories. 'A charge must be interpreted as a whole, * * * not in individual parts.' Sutton v. Public Service Interstate Transp. Co., 2 Cir., 157 F.2d 947, 948, cert. denied 330 U.S. 828, 67 S.Ct. 870, 91 L.Ed. 1277. Nor does plaintiff's objection to the court's charge as to the permissibility of drawing an adverse inference from the nonappearance of a doctor who had treated him have merit. See United States v. Llamas, 2 Cir., 280 F.2d 392.

We turn, therefore, to the appeal involving the issue of maintenance and cure. The recent decision of Fitzgerald v. United States Lines Co.,...