Archawski v. Hanioti, 9

• Decision Date: 26 December 1956
• Docket Number: Docket 23566.,No. 9,9
• Parties: R. V. ARCHAWSKI et al., Libellants-Appellees, v. Basil HANIOTI etc., Respondent-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

239 F.2d 806 (1956)

R. V. ARCHAWSKI et al., Libellants-Appellees, v. Basil HANIOTI etc., Respondent-Appellant.

No. 9, Docket 23566.

United States Court of Appeals Second Circuit.

Argued October 3, 1956.

Decided December 26, 1956.

Harry D. Graham, New York City, for libellants-appellees.

Leonard Altschul, New York City (Samuel Bader, New York City, of Counsel), for respondent-appellant.

Before FRANK, MEDINA and HINCKS, Circuit Judges.

MEDINA, Circuit Judge.

This proceeding was brought to recover sums of money paid by libellants¹ for passage upon the vessel City of Athens on a sailing to Europe scheduled for July 15, 1947, no part of which was repaid, despite the fact that the voyage was abandoned. When first before us we dismissed for lack of admiralty jurisdiction and this holding was reversed by the Supreme Court and the case is again here for consideration of the contentions of respondent which were not previously passed upon. Archawski v. Hanioti, 350 U.S. 532, 76 S.Ct. 617, reversing, 2 Cir., 223 F.2d 406.

Due in no small measure to various maneuvers and dilatory tactics by respondent, to whom the court below with considerable justification referred as "an unbelievable scoundrel," but also to confusion stemming from the allegations contained in the libel, the method of proof pursued by libellants and their determination at all hazards to enforce the decree by putting respondent in jail, what should have been a simple case comes to us encased in a mass of procedural complexities.

To bring some order out of this seeming chaos, we shall discuss only the following questions, which we think dispositive of the appeal:

1. Were the proceedings in the District Court regular?

2. Was the evidence sufficient to sustain a recovery by libellants against respondent for the passage money?

3. Was the provision in the decree for a body execution authorized by law?

I.

Respondent, through his proctors of record, filed a notice of appearance and a personally verified answer denying the allegations of the libel. When the case was reached for trial in due course, one of respondent's proctors of record appeared and requested in adjournment. When this was denied, he stated, "Then I will sit here and just see what is happening." The court proceeded to conduct an inquest, disavowing any intention to take advantage of the presence of respondent's proctor, who declined to take part in the proceeding. Under these circumstances it is clear that respondent was not represented at the inquest, and it is not necessary to consider whether respondent's proctor in fact represented him at that time. It is not material whether or not respondent personally knew that the case was about to be reached for trial. It was his business to keep track of the case and assert whatever defense he had.

While respondent's failure to appear may be referred to in a colloquial sense as a default, it was not properly speaking a default and did not admit all the properly pleaded and material allegations of the libel. His answer had put all these allegations in issue and libellants were accordingly put to their proof. Bass v. Hoagland, 5 Cir., 172 F.2d 205, certiorari denied, 338 U.S. 816, 70 S.Ct. 57, 94 L.Ed. 494. The court below was entirely justified in taking the inquest.

II.

Following entry of the decree, respondent appeared by his present proctor and in effect moved for a new trial. The motion was denied in an opinion reported at 129 F.Supp. 410.

We proceed to consider the sufficiency of the proofs adduced on the inquest in support of libellants' claim.

The Supreme Court has held "that the obligation to pay the moneys arose because of a breach of the contract to transport passengers" and that even where the libel reads like indebitatus assumpsit at common law, admiralty has jurisdiction "provided that the unjust enrichment arose as a result of the breach of a maritime contract." Archawski v. Hanioti, supra, 350 U.S. at pages 534, 536, 76 S.Ct. at pages 620, 621.

Thus libellants, in order to recover, were obliged to establish no more than the making of the contracts of passage, the receipt of the passage money by respondent, the abandonment of the voyage and respondent's failure to reimburse libellants upon demand.

Libellants called no witnesses. They did introduce certain documentary evidence, consisting of the stenographic transcript of certain testimony before a Commissioner in a proceeding in 1947 in the United States District Court for the District of Maryland, the Commissioner's Report, and a schedule listing the amount each libellant had paid for passage on the anticipated voyage.

Respondent testified in the Maryland proceeding. By his own admissions it was established that a number of persons purchased passage aboard the City of Athens, that the money was collected by the American Mediterranean Steamship Agency, which disbursed the proceeds according to respondent's instructions, that the nominal owner of the ship, Sociedad Naviera Transatlantica, was "a mere paper company," completely under respondent's control and without even a bank account separate from respondent's other controlled companies, and that, although demands had been made for the return of the passage moneys, they had not been repaid.

The testimony of Walter J. Letts, president of the City of Athens' general passenger agency, was to the same effect. The only remaining essential proof in the case at bar had to do with the identification of the amounts paid by the several libellants. These were set forth in the schedule above referred to. Libellants' proctor stated to the court that the schedule had been prepared from the records of the passenger agency by its treasurer-director and had been identified by Mr. Letts, who had died since the Baltimore proceeding. The proctor stated that he had the original records with him in court, and undoubtedly would have placed them in evidence had an objection been raised to the introduction of the schedule in their stead.

Respondent contends that, except for his own testimony, this evidence was inadmissible hearsay, and that it may not be considered in determining whether there was proof sufficient to justify the decree. But it is well settled that objection to proffered hearsay is deemed waived by a party participating in a trial who fails to interpose a timely objection. In such a situation the hearsay may be received and weighed by the trier of the facts. Diaz v. United States, 223 U.S. 442, 450, 32 S.Ct. 250, 56 L.Ed. 500; United States v. Fleming, 2 Cir., 134 F.2d 776, McCormick, Evidence, §§ 52, 54 (1954); 1 Wigmore, Evidence, § 18; 3 Am.Jur., Appeal and Error § 343. We think a party duly noticed of the trial may not immunize himself from such a waiver by absenting himself from the trial.

In the situation presented, we think the libellants were not entitled as of right to introduce the hearsay evidence. But neither was the absent respondent entitled as of right to have it excluded. We hold that its admission lay within the discretion of the judge. There were no facts suggesting doubts as to the authenticity or accuracy of the evidence. On the contrary, there was much to suggest affirmatively that the evidence was trustworthy.

Letts' testimony in large part coincided with respondent's admissions and was not inconsistent with them. As to the schedule, we think the court was justified in accepting the proctor's assurances as to its authenticity, and, since it summarized entries in the original records of the passenger agency, it was cogent evidence of the amounts paid by each of the libellants. We hold that the trial court did not abuse its discretion in not putting the libellants to stricter proof. Especially was this so in view of the fact (which the judge may have taken into account) that even after the entry of the decree it was still open to the respondent upon a showing of substantial injustice to make a timely motion for a reopening and correction of the decree. The Eva D. Rose, 4 Cir., 166 F. 101; cf. Fed.Rules Civ.Proc. rule 60(b), 28 U.S. C. Although a motion for a new trial was made by respondent there was at no time any showing that the amounts claimed to have been paid by libellants were not correct.

Had there been any real defense to the claim for the repayment of the passage money it is fair to assume that respondent would have kept himself informed of the progress of the case on the docket and made some endeavor to refute libellants' proofs. We have no doubt whatever that he received the amounts paid and failed to refund them. The evidence amply supports that part of the decree which determines that respondent is indebted to libellants in the amounts stated.

III.

The real difficulty with the case concerns the provision in the decree for the issuance of a body execution.

We pass over as unimportant the specific wording of the decree. The file discloses a property execution returned nulla bona on January 11, 1955. We shall assume, arguendo, that there is a decree directing in proper form the issuance of a body execution, and that all preliminary formalities have been complied with, and thus cut right down to the basic question of whether this is an action in which a body execution may be obtained.

Libellants rely² on Admiralty Rule 20, 28 U.S.C., which provides:

"In all cases of a final decree for the payment of money, the libellant shall have a writ of execution, in the nature of a fieri facias, commanding the marshal or his deputy to levy and collect the amount thereof out of the goods and chattels, lands and tenements, or other real estate of the respondent, claimant, or stipulators. And any other remedies shall be available that may exist under the state or federal law for the enforcement of judgments or decrees."

Under New York law, Civil Practice Act Section 764, an execution against the person, with certain exceptions not here pertinent, may issue in the types of cases defined in Section...