Borras v. Sea-Land Service, Inc.

• Citation: 586 F.2d 881
• Decision Date: 20 November 1978
• Docket Number: No. 77-1211,SEA-LAND,77-1211
• Parties: Juan Antonio BORRAS, Plaintiff, Appellant, v.SERVICE, INC., Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 881

586 F.2d 881

Juan Antonio BORRAS, Plaintiff, Appellant, v. SEA-LAND SERVICE, INC., Defendant, Appellee.

No. 77-1211.

United States Court of Appeals First Circuit.

Argued Sept. 6, 1978.

Decided Nov. 20, 1978.

Jack Steinman, New York City, with whom Harry A. Ezratty, San Juan, P. R., was on brief, for plaintiff, appellant.

Jose Antonio Fuste, San Juan, P. R., with whom Jimenez & Fuste, San Juan, P. R., was on brief, for defendant, appellee.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

Juan Antonio Borras appeals from the entry of judgment n. o. v. in favor of Sea-Land Service, Inc. after a jury had awarded Borras $300,000 against Sea-Land on his negligence claim brought under the Jones Act, 46 U.S.C. § 688. Borras also challenges dismissal of his unseaworthiness claim, and asks us to disapprove the district court's alternative holding that Sea-Land "has stated a good and sufficient grounds for a new trial in that the verdict is contrary to the great weight of the evidence, and that the amount of the award is excessive." ¹

Borras' negligence claim stemmed from an incident that took place in June 1973 while he was a pantryman on a Sea-Land vessel. The version of the incident that was most supportive of Borras' claim was in the deposition of a messman named Nobles. He said that the Captain while at breakfast one day asked Borras for a soup spoon.

"Mr. Borras brought him a soup spoon that . . . had soap particles on it . . . and Mr. Borras went back in to finish washing dishes. The Captain came into the pantry with the spoon in his hand and he was in a rage, he was completely out of control of himself, raging, cussing, yelling, he took the spoon and threw it at Mr. Borras, Mr. Borras jumped out of the way and hit his head on the metal shelf.

"The Captain told Mr. Borras that he wasn't no fucking good."

According to Nobles, the Captain was ten or twelve feet from Borras when he threw the spoon, and "was cussing at him, yelling at him, threatening him." During the incident, the Captain looked, "very vicious, mad, out of control of himself, looked like he wanted to kill somebody."

This version contrasted with the testimony of Chief Steward Keno who, while confirming the spoon-throwing incident in broad detail, said that the Captain had directed no complaints against Borras, did not yell at or curse him, and, after expressing displeasure, had merely tossed the spoon into the sink.

Borras himself did not testify, presumably because of his disability. His accident report made after the incident indicated that the Captain "came to the pantry to yell with the steward about he found soap on the spoon. Then he threw the spoon to the sink hard, I try to escape from the spoon and hit the shelf and the water raiser, on my left side of the head." He listed his injuries as "on the eyes and head."

There was evidence that immediately after the incident Borras was treated on the vessel for an abrasion of the corner of the left eye and excused from work for several days. Two days later he was examined at a hospital in Panama and received medication and a patch. He resumed work on the ship, but a week later received treatment for the eye and for headaches at a hospital in San Francisco. Again he resumed shipboard work, but a month later he revisited the Public Health Hospital in San Francisco where he was found to be nervous and hyperactive, and was considered to require a neurological work-up. He was referred to the Public Health Service Hospital in Puerto Rico, where his condition continued to deteriorate. He became disoriented, his memory and judgment became impaired, and his mental condition finally deteriorated to the point of total or near-total incapacity. Extensive hospitalization followed.

There was evidence from which the jury could have found that Borras underwent a dramatic mood change after the accident, going from a sunny, outgoing personality to a depressed one.

Borras sought damages entirely for his mental breakdown, which he attributed to the spoon-throwing incident. Damages were not sought for the eye injury, nor for any other specific physical injury.

To establish a causal link between the spoon incident and his mental deterioration, Borras relied upon the testimony of Dr. Jose R. Vigoreaux, a psychiatrist. Dr. Vigoreaux testified, without objection, that Borras was suffering from a psychosis, specifically a chronic schizophrenic reaction, and that "the incident was the cause of his present mental condition." Dr. Vigoreaux explained,

"So this man was normal, psychological and physical, up to June, 1973, when he had this minor injury to his eye, but major psychological injury to his soul or to his personality. There were so many adversities right from the moment that the Captain insulted him and threw the spoon at him, all the way to going in the hospital where he was not well attended until finally he came into a hospital for psychiatric treatment.

"All these series of events contributed to his mental breakdown . . . So my opinion is that that incident was the cause of his psychological disease."

The defendant's experts disagreed with Dr. Vigoreaux. Dr. Angel Suro and Dr. Manuel Rodriguez Perez testified that Borras suffered from an organic brain syndrome with psychosis, not schizophrenia. This conclusion was supported as well by testimony of Dr. Pedro A. Sifre Franco, a psychologist, who testified to the results of a series of psychological tests of Borras. The cause of the organic syndrome could not be determined, but possible contributing factors were Borras' past history of heavy drinking, and a head injury Borras sustained two years before the spoon incident. None of the experts thought that the spoon incident could have been a cause of organic syndrome, though one of them conceded that if Borras had an organic brain syndrome, the spoon incident might have "set him off," "calling attention to what had not been seen before."

In granting judgment n. o. v., the district court ruled that the evidence would support a finding by the jury that the Captain's throwing of the spoon was negligent, and that the jury "might well infer that the plaintiff's fear of being struck was justified and that his knee-jerk reaction was within the normal range of human conduct." But the court went on to say,

"It is clear from this testimony, and from plaintiff's opening statement, that it is not seriously contended that the 'minor' physical injury to plaintiff's eye, in and of itself, was a substantial or a direct contributing cause of plaintiff's mental condition. The thrust of Dr. Vigoreaux's testimony was that plaintiff had had his feelings hurt by this series of events, and that these hurt feelings had triggered his mental breakdown. Such an opinion in the light of the facts here can be based upon nothing more than mere suspicion and conjecture, and is entirely too speculative to support the verdict.

"To summarize, therefore, I hold that the Captain's conduct in the galley, to the extent it consisted of name calling and swearing, did not constitute negligence under the circumstances here. ² Although the Captain's act of tossing the spoon into the sink could be construed as negligence the evidence does not support a finding that such conduct was a contributing cause of plaintiff's mental deterioration."

We think the court below should not have taken the case from the jury. This court said in Dumas v. MacLean, 404 F.2d 1062, 1064 (1st Cir. 1968),

"The principles governing the consideration of motions for directed verdict and judgments n. o. v. are well settled in this circuit. The evidence must be viewed in the light most favorable to plaintiff, giving him the benefit of every favorable inference that may be fairly drawn. If fair minded men may draw different inferences and reasonably disagree as to what the verdict should be, the matter is for the jury."

Thus, if viewing the evidence without weighing the credibility of the witnesses there is any substantial evidence supporting the verdict, judgment n. o. v. is improper. C. Wright, Law of Federal Courts § 95, at 473 (3d ed. 1976).

The court's version of the evidence, stated in conjunction with its ruling on the motion for judgment n. o. v., ignored the deposition testimony of Nobles, which indicated that the Captain's anger was directed at Borras, that the spoon was flung at him, and that there were both threats and insults. For purposes of ruling on the motion for judgment n. o. v., the district court erred in disregarding this deposition testimony which was admitted without objection and which the jury was entitled to credit.

The court also rejected the opinion of Dr. Vigoreaux that the spoon-throwing incident was causally related to Borras' mental deterioration, saying, in effect, that his opinion was too speculative. However, Dr. Vigoreaux's professional credentials were, on their face, perfectly adequate for him to be allowed to testify on this matter as an expert; and, in fact, Dr. Vigoreaux was permitted to testify as an expert, without objection, and, likewise without objection, was permitted to render an opinion on the question of causal relationship. His expert opinion thus became part of the corpus of evidence before the jury. In ruling on the motion for judgment n. o. v., the judge could not substitute his own views as to Dr. Vigoreaux's credibility for those of the jury.

We do not know, since a transcript of the charge is not before us, on what precise theory or theories of negligence the case was put to the jury. But if the evidence is viewed "in the light most favorable to plaintiff, giving him the benefit of every favorable inference that may be fairly drawn," Dumas v. MacLean, 404 F.2d at 1064, a verdict for plaintiff is not unsupportable as a matter of law. The court itself characterized the spoon-throwing as capable of being construed as negligent, and Noble's testimony, if...