Farrell Lines, Inc. v. Devlin, 45

• Citation: 211 Md. 404,127 A.2d 640
• Decision Date: 11 December 1956
• Docket Number: No. 45,45
• Parties: FARRELL LINES, Inc., etc. v. John C. DEVLIN and Atlantic & Gulf Stevedores, Inc.
• Court: Maryland Court of Appeals

Page 404

211 Md. 404

127 A.2d 640

FARRELL LINES, Inc., etc. v. John C. DEVLIN and Atlantic & Gulf Stevedores, Inc.

No. 45.

Court of Appeals of Maryland.

Dec. 11, 1956.

Robert A. Lilly, New York City (George W. Sullivan, New York City Robert, H. Williams, Jr., Baltimore, on the brief), for appellant.

Sol C. Berenholtz, Baltimore (Solomon Kaplan, Baltimore, on the brief), for John C. Devlin.

Herbert F. Murray, Baltimore (Clater W. Smith and Clark, Smith & Prendergast, Baltimore, on the brief), for Atlantic & Gulf Stevedores, Inc., etc.

Before BRUNE, C. J., and COLLINS, HENDERSON, HAMMOND and PRESCOTT, JJ.

HAMMOND, Judge.

The appellee Devlin, a seafaring man, hurt his ankle seriously when he jumped from the rail to the deck of the African Patriot, a freighter docked at Locust Point, Baltimore, which he had boarded by way of an improvised gang plank. Farrell Lines, Incorporated (Farrell), the appellant, owned the African Patriot. Atlantic & Gulf Stevedores, Inc. (Atlantic) was unloading the vessel at the time of the accident. Farrell furnished Devlin hospitalization and medical care. Devlin sued Farrell in the Superior Court of Baltimore for the maintenance to which an injured seaman is entitled and for damages. His claim for damages is based on unseaworthiness and negligence in not providing a safe means of boarding the vessel. He claimed, in the alternative, as a seaman and a business invitee. Farrell interpleaded Atlantic, alleging in its third party complaint that if Devlin had a cause of action it was a direct result of Atlantic's negligence during its stevedoring work and that, by written agreement, Atlantic had undertaken either expressly or impliedly to indemnify Farrell in such circumstances.

The jury, instructed by the court as to the applicable and controlling federal maritime law, found on issues that Farrell was Devlin's employer at the time of the accident, that the ship was unseaworthy, that Farrell was guilty of negligence contributing to the accident and injury, that Devlin had not been guilty of contributory negligence and, finally, that Atlantic had not been guilty of negligence directly contributing to the accident and injury. Appellant's arguments on the appeal from Devlin's judgment against it, both printed and forensic complain that the trial judge erred to its prejudice by refusing, at the close of plaintiff's evidence, to direct verdicts for the defendants on various aspects of the case, in refusing to direct verdicts for the defendants when all of the evidence was in, again on various phases of the case, and in rulings on the evidence. Farrell's appeal from the judgment for Atlantic charges error in the court's refusal to charge the jury as a matter of law that Farrell was entitled to prevail on the allegations of its third party complaint.

Appellant is particularly aggrieved at the trial court's action at the conclusion of Devlin's case. Farrell's lawyers at that time told the court that they wished to 'offer some prayers' and Atlantic's counsel said they wished to make 'a motion also at this time'. The court said: 'I overrule all motions at this time, and will consider them at the end of the whole case.' The record does not show what specific motions the defendants had in mind, nor does it show any further effort to have the court pass on the motions or any exception to the court's action. The case was ably tried below on both sides, as it was here. We have no doubt that counsel and the court had discussed thoroughly the matters as to which action was sought and were entirely aware of the effect of the court's action. Nevertheless, the trial court undoubtedly should have heard whatever motions the defendants desired to make and have allowed counsel to give reasons in support of the motions. However, we see no prejudice to the appellant in the court's having acted as it did. We were told at the argument here that at the end of the whole case, Farrell offered and argued fully the identical motions that it wished to make earlier. Devlin's case had been strengthened somewhat by evidence given by witnesses for the defendant; yet we find that Devlin had produced on his own behalf evidence sufficient to require the defendant to go forward.

Devlin had gone to the pier at which the African Patriot was docked to work as night relief mate from 5:10 p. m. to midnight, having been sent by his union, with which Farrell had a contract calling for the regular employment of such relief officers and the terms of the employment. Farrell claims that Devlin failed to meet the burden of proving that at the time he was injured he was its employee, and so, a seaman to whom there is given by the admiralty law the right to maintenance and the right to damages for injuries resulting from unseaworthiness of the ship or from faulty equipment or appliances, and by the Jones Act, 46 U.S.C.A. § 688, the right to sue the vessel owner for damages from negligence.

Farrell's grievance with the trial judge's treatment of evidence is (a) that he should not have admitted a paper given Devlin by the vessel's chief mate after he was hurt, certifying that Devlin was an employee of Farrell and, as such, entitled to be treated and cared for in the United States Public Health Service Hospital (the Marine Hospital), and (b) that his remarks in the presence of the jury were highly prejudicial and showed a prejudgment of the issue the jury had to decide, when he said the certificate purported to show that Devlin was employed by Farrell, that it was to be assumed that the chief mate knew that Devlin was not entitled to the certificate unless he were an employee and that '* * * at least he has certified that the plaintiff was an employee of the ship.' Since the certificate, if proper evidence, was significant on the matter of Devlin's employment status, we find it appropriate to consider appellant's evidentiary objections at this stage. Farrell urges that the certificate was not signed by the master, as its printed heading 'Master's Certificate' and the admonition on it that it 'must be signed by the Master or Authorized Agent of the Vessel' indicate it should have been. It adds that it was not shown that the master was not on board and, so, that Devlin failed to prove the authority of the chief mate. We think it fairly to be inferred that the master was not on duty at the time of the accident. The presence, and station, on the ship of all of the other officers was testified to. The chief mate said he was in complete charge of the ship. Farrell seems to have argued to the court and jury that the master was not on board.

Next, it is contended that the first time that the chief mate encountered Devlin the accident had occurred so that Devlin was unfit for duty when he reported for work and the mate was without authority then to accept him as an employee. This is a somewhat circuitous argument because Farrell seems to agree that if Devlin had gone to the mate before the accident and tendered the introductory slip given him by the union showing him to be the night relief officer, the chief mate would have had authority to recognize him and would in fact have recognized him as an employee. We fail to see how he lost the authority to give recognition of what he evidently deemed to be a fact the moment Devlin was hurt. He was not attempting to bind the ship or the owner, which Farrell argues was beyond the authority of a mate, by admitting liability (except as to responsibility for the cost of the hospitalization and this Farrell has not repudiated, or attempted to repudiate); he was merely certifying to a relationship which might or might not serve as the basis of liability. We think he had the right to do this much. Farrell offered no explanation in the testimony of why the certificate was given if Devlin were not an employee, nor has it offered any to this Court save the suggestion that it was an impulsive act of sympathy or benevolence to assure hospitalization. If Devlin had not been considered an employee, he could have been sent to a hospital other than the Marine Hospital. Only if he were a seaman when injured would he have been sent there.

We think the certificate was properly admitted. Once the certificate was in evidence, the trial judge's remarks as to what it purported to show and what the mate had certified, were mere repetitions of its contents--statements of the obvious. We feel that whatever emphasis the court's comments gave the obvious did not serve as a prejudgment of an issue that was for the jury to answer. In his charge the court carefully and precisely instructed the jury that nothing he had said during the trial as to the evidence was to give the impression that he had any particular views on the facts or on what solution should be made of conflict between witnesses or as to what inferences were to be drawn from the evidence. We think that there was no prejudicial error in the court's comments on the contents of the certificate.

In our opinion the matter of employment at the time of injury rightly was left to the jury. The master's certificate was the last link in this chain of evidence on the point, and a significant link, as was made manifest in Curtis Bay Towing Co. v. Dean, 174 Md. 498, 508, 199 A. 521, where such a certificate was given great weight. Other links are the following details, which the jury could have found to be the facts: Devlin was an experienced officer holding a chief mate's unlimited license. He had served at sea for many years. For two years he had been on a list of qualified relief deck officers maintained by the union and had regularly worked as night relief mate in Baltimore harbor. The contract between Farrell and the union called for employment of two night relief officers, one to stand the 5:00 p. m. to midnight watch, the other from midnight to 8:00 a. m. Each is given a slip by the union on which are the name and location of the vessel, name of the...