Silverman v. Bermuda & West Indies SS Co.

• Decision Date: 13 August 1935
• Parties: SILVERMAN v. BERMUDA & WEST INDIES S. S. CO., Limited, et al.
• Court: U.S. District Court — Southern District of New York

12 F. Supp. 164

SILVERMAN v. BERMUDA & WEST INDIES S. S. CO., Limited, et al.

District Court, S. D. New York.

August 13, 1935.

Emanuel Halpern, Silas B. Axtell, and J. G. Schneier, all of New York City, for plaintiff.

Kirlin, Campbell, Hickox, Keating & McGrann, and Raymond Parmer, all of New York City, for defendants.

RIPPEY, District Judge.

This action was brought by plaintiff to recover damages for personal injuries alleged to have been sustained by her when she was thrown from a deck chair in which she was sitting while she was a passenger on the Steamship Fort Victoria, owned and operated by the defendants. The alleged accident happened on or about January 6, 1929. This case was tried before me in April, 1935. The action had been previously tried, and the complaint was dismissed at the close of the plaintiff's case. On appeal, the Circuit Court of Appeals reversed the decision of the trial judge and held that there was evidence sufficient to warrant the submission of the case to a jury. 74 F.(2d) 683.

At the close of the second trial, the defendant moved to dismiss the complaint and for a direction of the verdict for the defendant, on the ground (1) that the action was not brought within 60 days after the giving of the notice, as provided for in the ticket, or within a reasonable time thereafter, and (2) generally on the grounds that the plaintiff had failed to establish the cause of action set up in the complaint or any cause of action for negligence against the defendant. These motions were denied, and specific questions were submitted to the jury, as follows:

(1) Was the ticket, Exhibit D, issued to plaintiff for her passage from Bermuda to New York City on the Steamship Fort Victoria, for the trip commencing January 5, 1929?

(2) Did this plaintiff knowingly sign the ticket, Exhibit D?

(3) Was the defendant negligent?

(4) If your answer to question No. 3 is in the affirmative, was such negligence the proximate cause of the injuries complained of?

(5) Was the plaintiff free from any negligence contributing in any respect to her injuries?

(6) Was the accident due to causes which the defendant could not anticipate or causes beyond its control?

(7) Did the injuries to plaintiff arise out of risks, dangers, and hazards which were obvious and well known to plaintiff?

(8) We find a verdict for ____.

The court charged the jury, in substance, that, in the event they should answer either of questions 1 or 2 in the affirmative, it would be unnecessary for the jury to further consider the case on the subject of negligence, and they should find a verdict for the defendant. No exception was taken by the plaintiff to this or any other portion of the charge. The jury answered the first two questions in the affirmative, and in No. 8 they found for the defendant. The plaintiff thereupon moved for a new trial on the ground that the verdict was contrary to law and the weight of the evidence and "upon the further ground that it is contrary to the rules and statutes and laws of the United States of America, and upon the further ground that the directions of the court to the jury concerning the signing of the ticket were beyond the scope, and improper in law." The motion for a new trial and to set aside the verdict was denied. Plaintiff has moved for a rehearing of that motion. The motion in so far as it involves a question of the weight of evidence will be denied. The question arose on the trial as to whether or not a specific ticket known as Exhibit D was the contract under which the plaintiff was transported by defendant from Bermuda to New York. Plaintiff had sought to establish that she was employed by an employment agency in New York on a contract (Exhibit 5) which she signed for work at the Hotel Hamilton at Bermuda, was given a card (Exhibit 4) by the employment agency which she presented to the steamship officials at New York for passage, and that she saw no ticket, paid no fare, and had signed no ticket or other paper except the contract for the position. She put the whole ticket matter in issue on her direct examination at the very outset of the trial. On cross-examination, she was shown Exhibit D, and denied that the signature at the end was her signature, but identified genuine specimens of her handwriting which were later used for purposes of comparison. Defendant's version was that the card (Exhibit 4) contained instructions to the holder to present it to the steamship officials and that the holder must procure and sign a ticket before passage; that the card was presented and plaintiff signed the ticket, Exhibit D, which was a ticket for a round trip from New York to Bermuda and return; that the ticket was then taken up and a card for passage issued; that the ticket was taken on ship to Bermuda; that it was left there with the steamship officials, and, when the holder presented herself for the return trip, she was identified and a card was issued upon which a stateroom was assigned. At the close of the trial defendant offered the ticket, Exhibit D, in evidence. Plaintiff objected to its admission on the ground that defendant had waived its defenses Nos. 4, 5, and 6, as set up in the answer (infra) to the effect that the action had not been begun within 60 days after notice of the accident or injuries to plaintiff had been served upon the defendant. The ticket itself was admitted in evidence, but decision was reserved on the question as to whether or not defendant, on the previous trial, had waived those defenses. That is the only question that will be considered on this motion for a rehearing. So far as the motion is based upon the point that the verdict of the jury in answer to questions 1 and 2 was contrary to and against the weight of evidence, the denial of the motion at the end of the trial must stand. The verdict of the jury to the effect that the ticket, Exhibit D, was the ticket upon which the plaintiff traveled and that she knew that she was executing a contract of passage at the time she signed it, is not contrary to or against the weight of the evidence in the case.

The ticket, Exhibit D, contained upon its face the following provision:

"8. The vessel, ship owner, master, or agent will not be liable for any claim of the passenger of any nature or kind whatsoever unless notice thereof in writing with full particulars of the claim shall be given to the ship owner or agent within three days after the passenger shall be landed from the steamer, or, in case the voyage is abandoned or broken up, within 7 days thereafter. Suit to recover on such claim shall not be maintained in any event unless commenced within two months after the giving of written notice as above provided. No agent or employee shall have authority to waive any of the provisions or requirements of this ticket. Any action by the ship owner or its agents or attorneys in considering or dealing with claims where the provisions of this ticket have not been complied with shall not be considered a waiver of such requirements and they shall not be considered as waived except by an express waiver."

The third separate and distinct defense set out that, "no notice in writing was given to the shipowner as required by the aforementioned provision No. 8 of the said ticket and by reason of its terms, the plaintiff is barred from maintaining this action."

The fourth separate defense provided that "no notice in writing was given to the shipowner as required by the aforementioned provision No. 8 of the said ticket and no suit was commenced by the plaintiff within the time limited in the said provision. By reason of these facts the plaintiff is barred from maintaining this action."

The fifth separate defense provided that "no notice in writing was given to the shipowner within a reasonable time after the termination of the voyage and by reason of these facts the plaintiff is barred from maintaining this action."

The sixth separate defense provides that "no notice in writing was given to the shipowner within a reasonable time after the termination of the voyage nor was any suit commenced by the plaintiff within a reasonable time after the termination of the voyage and by reason of these facts plaintiff is barred from maintaining this action."

It is a conceded fact that no notice in writing whatever was served upon the defendant, as required by provision 8 on the ticket, giving full particulars of the claim. This was required by that provision to be given within 3 days after the disembarkation of the passenger at the termination of the voyage. As a matter of fact, the action was not commenced until more than 2 years after the accident. The court charged the jury that provision 8 of the contract, if it was the contract, was a valid limitation of time within which to commence the action, and that such limitation in a contract for passage was valid and must be enforced, if reasonable; that conditions of this kind are presumed to be assented to by the passenger if passage is accepted, and that the fact that the plaintiff did not read the ticket or did not know the conditions therein contained was of no consequence, if the jury found that her story was true that she did not know the conditions, because she was bound to know the conditions contained in the ticket, whether she read the ticket or not, if she accepted passage on the strength of the ticket; that her signature was not decisive as to her consent, but, if she took advantage of the ticket to secure passage on the ship, and if she had opportunity to read the instrument and to know what it...