Caughman v. Washington Terminal Company, 18517.

• Decision Date: 04 March 1965
• Docket Number: No. 18517.,18517.
• Citation: 345 F.2d 434
• Parties: Willie CAUGHMAN, Appellant, v. The WASHINGTON TERMINAL COMPANY, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

345 F.2d 434 (1965)

Willie CAUGHMAN, Appellant, v. The WASHINGTON TERMINAL COMPANY, Appellee.

No. 18517.

United States Court of Appeals District of Columbia Circuit.

Argued November 18, 1964.

Decided March 4, 1965.

Mr. Melvin Hirshman, Washington, D. C., with whom Messrs. Earl H. Davis and Martin Mendelsohn, Washington, D. C., were on the brief, for appellant.

Mr. Thomas A. Flannery, Washington, D. C., with whom Mr. Stephen A. Trimble, Washington, D. C., was on the brief, for appellee.

Before WILBUR K. MILLER, Senior Circuit Judge, and WASHINGTON and McGOWAN, Circuit Judges.

WILBUR K. MILLER, Senior Circuit Judge:

Willie Caughman, a baggage and mail handler, sued his employer, The Washington Terminal Company, under the Federal Employers' Liability Act, 35 STAT. 65, as amended, 45 U.S.C. § 51 et seq., to recover damages for personal injuries alleged to have been sustained as a result of the employer's negligence. The jury found for the Washington Terminal Company and Caughman appeals.

It appeared in evidence, over appellant's objection, that he had received approximately $40.00 per week from the Railroad Retirement Board for a year after the injury, and that he was then receiving public assistance of about $180.00 per month.¹ This, says the appellant, violated the "collateral source" doctrine and was prejudicial error.

Appellee admits that evidence of sums received by the appellant from collateral sources was not admissible in mitigation of damages, but points out that the jury did not reach the question of damages and "simply found that the plaintiff had failed to carry his burden of proof to establish liability." It argues that the receipt of compensation benefits was not introduced as a defense to the suit but merely to determine appellant's credibility "and his motive, if any, in not returning to work." Appellee concedes that, "Had the jury ever reached the question of damages in this case, the inquiry into the receipt of collateral compensation might have required the matter to be remanded for a re-determination of an amount of damages."

Twice recently the Supreme Court has considered a similar problem. In Tipton v. Socony Mobil Oil Co.² the suit was brought under the Jones Act, 46 U.S.C. § 688. The principal issue was whether, in view of the nature of the work performed at the time of injury, Tipton was a seaman and so within the coverage of the Jones Act, or an offshore drilling employee. Evidence was introduced, over his objection, that Tipton had accepted compensation benefits under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq., which is expressly inapplicable to a "member of a crew of any vessel," 43 U. S.C. § 1333(c)(1).

The Court of Appeals for the Fifth Circuit held it was error to admit evidence of other compensation benefits but found the error harmless "in view of the fact that the jury, having decided the question of status adversely to appellant, never reached the issue of damages. * * *" 315 F.2d 660, 662 (1963).

The Supreme Court said:

"We disagree with the suggestion of the Court of Appeals that the prejudicial effect of the evidence of other compensation would be restricted to the issue of damages and would not affect the determination of liability. That suggestion ignores that the evidence was presumably considered without qualification as bearing on a basic fact essential to liability. * * *"

This can be construed as a holding that such evidence may be received if the jury is instructed to consider it only on the issue of liability. In that event, our question would be whether the trial judge's remarks, reproduced in footnote 1, sufficiently instructed the jury to consider the evidence of collateral benefits only in connection with the liability issue.

But in Eichel v. New York Central Railroad Co.³ the Supreme Court went further than it did in the Tipton case. The Railroad Company, for the purpose of impeaching Eichel's testimony as to his motive in not returning to work and as to the permanency of his injuries, offered testimony that he was receiving disability pension payments under the Railroad Retirement Act. It argued that evidence of the disability payments, although concededly inadmissible to offset or mitigate damages, would show Eichel's motive in not returning to work. The trial court rejected the offered evidence, but the Second Circuit held that it should have been admitted. The Supreme Court said:

"We disagree. In our view the likelihood of misuse by the jury clearly outweighs the value of this evidence. Insofar as the evidence bears on the issue of malingering, there will generally be other evidence having more probative value and involving less likelihood of prejudice than the receipt of a disability pension. Moreover, it would violate the spirit of the federal statutes if the receipt of disability benefits under the Railroad Retirement Act of 1937, 50 Stat. 309, as amended, 45 U.S.C. § 228b(a) 4, were considered as evidence of malingering by an employee asserting a claim under the Federal Employers\' Liability Act. We have recently had occasion to be reminded that evidence of collateral benefits is readily subject to misuse by a jury. Tipton v. Socony Mobil Oil Co., 375 U.S. 34 84 S.Ct. 1, 11 L.Ed.2d 4. It has long been recognized that evidence showing that the defendant is insured creates a substantial likelihood of misuse. Similarly, we must recognize that the petitioner\'s receipt of collateral social insurance benefits involves a substantial likelihood of prejudicial impact. We hold therefore that the District Court properly excluded the evidence of disability payments. * * *"

Because of this authority, we are constrained to hold it was prejudicial error to receive evidence of sums received by Caughman from the Railroad Retirement Board and from public assistance. The judgment of the District Court will be reversed and the cause will be remanded for a new trial at which such evidence will be excluded.

Caughman also assigned as error the showing of motion pictures of his activities which tended to contradict his testimony about the extent of his injuries, and the trial judge's refusal to permit him to introduce evidence of the Terminal Company's previous practices relating to the handling of mail sacks, as well as the failure to instruct on the "non-delegable duty" of the Company. As these questions may arise at a new trial, we think it well to indicate now that we consider that Caughman's contentions in respect to them are insubstantial.

Reversed and remanded.

WASHINGTON, Circuit Judge (concurring in the result):

I agree that this judgment should be reversed under the Eichel decision of the Supreme Court, 375 U.S. 253, 84 S.Ct. 316, 11 L.Ed.2d 307 (1963). Under these circumstances, I agree that it is appropriate to comment on issues raised by the parties which are likely to arise in a new trial. However, I think that the important matters dealt with in dictum in the last paragraph of the majority opinion require a somewhat fuller consideration.

The opinion characterizes as "insubstantial" the appellant's assertion that "the trial judge's refusal to permit him to introduce evidence of the Terminal Company's previous practices relating to the handling of mail sacks" was error. Appellant had tried to introduce evidence of two separate but related practices. First, he wanted to show that two men were used to stack heavy mail sacks in the past; second, that requests by individuals for help in stacking heavy mail sacks had in the past been frequently denied. The opinion of the court might be read as indicating that evidence of all past practices should be excluded in a new trial. The trial judge in the first trial seemed to think that this was the proper rule. Several times he instructed appellant's counsel to "restrict your proof to the day of the accident."

In my view, the majority opinion should not be read as compelling this narrow view of admissibility. Indeed, the appellant concedes that it is appropriate to accept evidence on past practices going to plaintiff's first point — that two men had often been used to stack heavy sacks in the past.¹ As I read the majority opinion, it finds that appellant has not shown error in the exclusion of evidence of past practices on this record. It does not foreclose the admission of such evidence in a new trial, at the discretion of the trial judge. According to McCormick, evidence of custom of business operations is usually admissible where practices are "reasonably regular and uniform." McCORMICK, EVIDENCE 343 (1954). If the custom of business operation is...