Britt v. Corporacion Peruana De Vapores

• Decision Date: 17 January 1975
• Docket Number: No. 73-3757,73-3757
• Citation: 506 F.2d 927
• Parties: Wilburn M. BRITT, Plaintiff-Appellant-Cross Appellee, v. CORPORACION PERUANA DE VAPORES and Vox Steamship Company, Defendants-Appellees-Cross Appellants, Texas Employers' Insurance Association, Intervenor.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 927

506 F.2d 927

Wilburn M. BRITT, Plaintiff-Appellant-Cross Appellee, v. CORPORACION PERUANA DE VAPORES and Vox Steamship Company Defendants-Appellees-Cross Appellants, Texas Employers' Insurance Association, Intervenor.

No. 73-3757.

United States Court of Appeals Fifth Circuit.

Jan. 17, 1975, Rehearing Denied Feb. 26, 1975.

David Yancey White, Corpus Christi, Tex., for plaintiff-appellant-cross appellee.

Theodore Goller, Houston, Tex., for Vox Steamship Co.

Charles D. Kennedy, Houston, Tex., for Corporacion Peruana.

Owen W. Cecil, Houston, Tex., for Tex. Employers' Ins. Assn.

Appeals from the United States District Court for the Southern District of Texas.

Before GEWIN, AINSWORTH and GEE, Circuit Judges.

AINSWORTH, Circuit Judge:

These are consolidated suits under the general maritime law by Wilburn Britt, a longshoreman, against Corporacion Peruana de Vapores (Peruana), the owner of the SS MARANON, to recover damages for personal injuries sustained on board that vessel on October 23, 1969, and against Vox Steamship Company (Vox), the owner of the M/V GLAFKI, to recover damages for personal injuries allegedly sustained on board that vessel on January 9, 1970. After an extended trial to the court and extensive expert and other testimony, the court determined that Britt had suffere, as a result of injuries to his back from the two accidents, damages of $40,000 for permanent disability and loss of wage earning capacity. The court also found that Britt had pain and suffering damages amounting to $20,000 which resulted from the back injuries. Of this $60,000 award, Peruana was deemed responsible for 25 per cent of the total injury, and Vox was found liable for 20 per cent of the injury. The court found that Britt's preexisting ailments and subsequent injuries not attributable to the two defendants were responsible for 55 per cent of his injuries and losses. In addition to the general award for Britt's back injuries, the court awarded Britt damages for lost pay, medical costs for a future operation, and injury to his hand resulting from the injury aboard the GLAFKI, and then subtracted from the awards medical expenses previously paid for Britt's treatment. Thus Britt received a net recovery of $22,600.69.

Britt appeals from various findings of the court which resulted in an award which he claims is inadequate by at least $300,000. Vox and Peruana do not directly attack the court's factual conclusions, but assert that imposing any liability on them is incorrect as a matter of law. After a close and deliberate review of the record, we have determined that there are no compelling reasons to conclude that the district court's findings were clearly erroneous, and thus we affirm.

I. BRITT'S CONTENTIONS

Britt objects most to the trial court's determination that preexisting and subsequent injuries not attributable to the MARANON and GLAFKI accidents were a substantial cause of Britt's disability. Evidence was introduced showing that Britt had engaged in vigorous manual labor until the MARANON accident, that he was diagnosed as having an acute back sprain immediately after the accident, that he was able to return to light work after the accident, and that only six weeks after the second accident on board the GLAFKI, he was suffering such damage to and pain in his back that he was unable to return to work. Medical evidence was introduced to establish that an operation which Britt subsequently underwent might have been necessitated by injuries such as Britt described.

Vox and Peruana, however, introduced evidence showing that Britt had first suffered a back injury in 1951, and that in 1958 Britt suffered a more severe back injury. The doctor who treated Britt in 1958 diagnosed a degenerative lumbosacral intervertebral syndrome and recommended that Britt undergo surgery, including a laminectomy and spinal fusion. Britt did not submit to surgery, but was warned that he should do no heavy lifting. The record shows that Britt did not follow his doctor's advice and the only work he has done since 1958 has been manual labor. Moreover, when Britt was required to have an operation in 1970, it was a laminectomy and spinal fusion-- the same operation recommended in 1958.

The defendants also introduced evidence showing that when Britt sought medical treatment following the January 9, 1970 injury aboard the GLAFKI, he sought treatment only for an injury occurring to his hand, and made no complaints about any back injury or pain to the attending physician. In fact, in five visits to physicians subsequent to the GLAFKI incident, Britt made no reference to any back injury resulting from the accident. Britt did, however, seek medical assistance for severe back pain on February 20, 1970. When Britt sought treatment on February 20, Dr. Dolch made an entry on Britt's medical record based on what Britt told him about his back condition. The entry was as follows: 'Last Saturday pitched flour and got backache that night and have had a backache since.' (Britt's work records showed that on February 14, 1970, Britt had worked 12.5 hours loading bagged flour.) One expert witness testified that it was conceivable that the flour-pitching could have necessitated the surgery, and that, since Britt had returned to rather vigorous activity after the October 23, 1969 injury aboard the MARANON, there was a reasonable medical probability the bulged disc Britt suffered from was associated with an incident subsequent to the October 1969 injury.

One of Britt's rejoinders to this evidence is that Britt's statement to Dr. Dolch and the medical entry resulting from the conversation relative to pitching flour on February 14 were not competent evidence on which the trial court could properly rely. This contention is without merit, since statements made for purposes of medical diagnosis or treatment which descreibe medical history or the general cause of an ailment are not excluded by the hearsay rule. 6 Wigmore on Evidence 1718- 20 (3d ed. 1940); McCormick on Evidence 292 (2d ed. 1972); Proposed Federal Rules of Evidence 803(4) and comment. Yet there was more than this contradiction which could have led the judge to discount Britt's testimony. Britt's credibility was shown, through intensive cross-examination and the introduction of substantial evidence at odds with his testimony, to be so suspect that the district judge commented that 'the Court would be justified in disbelieving Plaintiff when what he says is even impliedly contradicted.' Confronted as we are with substantial evidence that supports the district court's conclusion, and with the court's determination that Britt's testimony is not believable, we are not 'left with the definite and firm conviction that a mistake has been committed.' United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). Thus, the lower court's findings are not clearly erroneous. Fed.R.Civ.P. 52(a). We are particularly reluctant to set aside the court's findings when to do so would require us to accept the testimony of a witness found not to be credible by the lower court. See Chaney v. City of Galveston, 5 Cir., 1966, 368 Fed.2d 774, 776.

Britt also contends that the trial court's findings were wrong because Vox and Puruana had an obligation to show by the preponderance of the evidence that a subsequent injury or prior condition were producing causes of Britt's injuries and damages, and the record does not support a conclusion that they sustained such burden. We think Britt misconceives his own responsibilities. On order to recover under the theory he advanced at trial, Britt was required to show that the GLAFKI and MARANON accidents were the proximate cause of his injury. Vox and Peruana were not obligated to prove they were not responsible for damages suffered by Britt in order to avoid liability.

We also uphold the lower court's finding that Britt's loss of ability to have sexual relations was not attributable to either one or both of the defendants. Britt testified his inability to have sexual relations commenced after his fall of January 9, 1970, on the SS GLAFKI, and denied having any such difficulties prior to that time. But a Dr. York testified, and his records showed, that on December 17, 1939, over three weeks prior to the GLAFKI incident, Britt complained of an inability to have sexual relations, of pain in his left testicle, and of cold genitalia. That same day, Britt filled a prescription for Afrodex, an aphrodisiac commonly used to aid impotency, at the Taylor Pharmacy. Furthermore, there was evidence that a few months after the 1958 accident previously referred to, Britt complained to his doctor of pain in his left testicle-- again, the same symptom Britt attributed to his accidents some twelve years later. There was further evidence that, even assuming Britt's condition was physiological in origin, his inability to have sexual relations was not logically associated with his back condition because the area of injury to Britt's back did not involve the area of the nerve distribution system to the penis and genital organs. Thus, the district court's conclusion is supported by substantial evidence and therefore not clearly erroneous.

Britt's remaining contentions are of...