Gladden v. Henderson Co., 15918.
| Decision Date | 02 November 1967 |
| Docket Number | No. 15918.,15918. |
| Citation | 385 F.2d 480 |
| Parties | Theodore GLADDEN, Appellant, v. P. HENDERSON & CO. v. LAVINO SHIPPING COMPANY, Third-Party Defendant. |
| Court | U.S. Court of Appeals — Third Circuit |
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Avram G. Adler, Freedman, Borowsky & Lorry, Philadelphia, Pa., for appellant.
T. J. Mahoney, Krusen, Evans & Byrne, Philadelphia, Pa. (Thomas E. Byrne, Jr., Philadelphia, Pa., on the brief), for appellee, P. Henderson & Co.
John T. Biezup, Rawle & Henderson, Philadelphia, Pa., for appellee, third-party defendant, Lavino Shipping Co.
Before BIGGS, FREEDMAN and SEITZ, Circuit Judges.
In this diversity case a jury rejected the claim of plaintiff, a longshoreman, that while working on defendant's vessel he sustained personal injuries as a result of the negligence of defendant and the unseaworthiness of the vessel. Plaintiff claimed that while operating a winch he was struck in the back by a block or pulley housing which had broken loose from its inadequate rigging. He seeks a new trial because of errors which he claims occurred in the course of the trial.
Plaintiff contends that the district court erred in permitting him to be cross-examined regarding the forbidden matter of workmen's compensation benefits. To understand the objection it is necessary to consider the circumstances in which the cross-examination occurred.
On direct examination plaintiff testified that for seven weeks after the accident he was treated by a Dr. Krause and was unable to work. After the first day following his return to work he suffered stiffness and pain, but he did not see Dr. Krause again. Asked why he did not return to Dr. Krause, he replied: "Well, during the seven weeks that I was out of work seeing Dr. Krause my bills got behind and when I went back to work, that was one of the main reasons I went back to work, was to try to catch my bills up and support my family." It was this testimony which brought about the cross-examination of which plaintiff complains.
After plaintiff had reiterated that his return to work was because of financial distress, defendant's counsel asked him: "During this period that you were receiving treatment from Dr. Krause, did your employer make it possible for you to receive any financial assistance?" Plaintiff's counsel objected and added: "Any benefits secured by Mr. Gladden must be repaid." The court in effect overruled the objection and plaintiff replied that he had received some such financial assistance, but that it was not what he was accustomed to earn on the job; it was, he said, about $70 a week.1 In the course of a colloquy his counsel stated that Dr. Krause had been paid for his services by the third party defendant. The trial judge indicated that while he would ordinarily have forbidden this cross-examination, he would permit it on the ground that plaintiff himself had opened the subject in his testimony that he had returned to work and had not gone back to Dr. Krause because of his straitened financial circumstances.
Although plaintiff refers to the cross-examination as dealing with the receipt of workmen's compensation, neither the questions asked nor the colloquies which surrounded them describe the financial assistance as coming from workmen's compensation or its equivalent. The problem, however, remains the same, for the collateral benefit rule is not limited to workmen's compensation payments. See the comprehensive discussion and citations by Chief Judge Biggs in Feeley v. United States, 337 F.2d 924, 929-931, 12 A.L.R.3d 1228 (3 Cir. 1964).
It is now well settled in Pennsylvania that payments of workmen's compensation, unemployment and other collateral benefits should remain unknown to a jury in weighing damages,2 because of the danger of prejudicial effect, even when offered as logically relevant evidence affecting the credibility of a plaintiff's claim of the extent of his injury.3 The same principle is the foundation for the inadmissibility of evidence regarding collateral benefits or conduct relating to their receipt in cases arising under the Federal Employers' Liability Act4 and the Jones Act.5
Here, however, plaintiff on direct examination brought into the case an additional, affirmative element by testifying that he had returned to work and had not visited Dr. Krause again because he had fallen behind in the payment of his bills and wanted to catch up on them and support his family. Defendant was not required to leave this testimony unchallenged and had the right to ask plaintiff on cross-examination whether he had received financial assistance, as affecting the credibility of his assertion.6 To have forbidden such cross-examination would have conferred on plaintiff the unparalleled right to give testimony on direct examination with immunity from inquiry on cross-examination. This is what distinguishes the present case from Eichel v. New York Central Railroad Co., 375 U.S. 253, 84 S.Ct. 316 (1963), upon which plaintiff relies. In that case, brought under the Federal Employers' Liability Act, the plaintiff had not affirmatively testified in such a manner as to warrant any effort at contradiction by cross-examination. Instead, defendant there attempted to introduce prejudicial evidence of disability pension payments simply because it was logically relevant on the extent and duration of the plaintiff's disability. The barriers which have been created against the admission of otherwise relevant evidence because of its prejudicial effect do not extend to the affirmative volunteering by a plaintiff of testimony which breaks into this restricted area.
If plaintiff had not added his affirmative testimony on direct examination he would have had the advantage of the collateral benefit rule and the jury would have been required to assess his damages without any knowledge of the collateral benefit he received. They would not have had before them the effect it might have had on plaintiff's claim of extensive and continued impairment of his health. But the collateral benefit rule cannot be made a springboard from which a plaintiff may go forward with affirmative evidence that he returned to work while he was still ailing, because of financial need and then seek immunity from cross-examination regarding it. The boundary of silence was crossed when plaintiff affirmatively presented on direct examination the reason why he had returned to work after seven weeks and had not again visited his physician. The trial court therefore was justified in opening the door for cross-examination for the narrow purpose of testing the credibility of plaintiff's assertion. Moreover, plaintiff's counsel stated without objection that plaintiff was obliged to repay the $70 a week assistance, so that any suspicion of a double recovery was eliminated.
Plaintiff claims that the trial judge erred in refusing to permit the introduction in evidence of a report of the accident known as Form 202, which is required under the Longshoremen's and Harbor Workers' Compensation Act.7 The form was filed by plaintiff's employer, Lavino, the third party defendant. Lee, who prepared the report for Lavino, was called as plaintiff's witness and testified that he prepared the form on the basis of a so-called pier report which had been prepared by Doyle, Lavino's supervisor. He also testified that neither Doyle nor Donnelly, Lavino's Assistant Vice President, who had contradicted plaintiff's version of the accident, had given him any information contrary to what he had put into Form 202.
In the light of this testimony we cannot say that the trial court abused its discretion in rejecting the offered document. Whatever argument could be made from any failure of Doyle and Donnelly to supply their contradictory version for Lee's report in Form 202 or in a supplemental report was already available in the evidence and did not require the introduction of the document to make it so. The avowed purpose for which plaintiff offered the document was the impeachment of the credibility of Doyle and Donnelly because of the inconsistency of the report with their testimony. Whatever inconsistency existed already appeared, and permission to include such cumulative evidence is a matter within the discretion of the trial judge. See McKee v. Jamestown Baking Co., 198 F.2d 551, 556 (3 Cir. 1952), see also Woods v. National Life & Accident Ins. Co., 380 F.2d 843, 847 (3 Cir. 1967). Moreover, since the report stated plaintiff's version of the accident, it cannot be said to have been an arbitrary exercise of discretion by the trial court to refuse to permit its reiterated emphasis which would have been the result of the admission of the document in evidence. We therefore do not reach or decide the effect of the provision in § 30(c) of the Longshoremen's and Harbor Workers' Compensation Act8 that the report "shall not be evidence of any fact stated in such report in any proceeding in respect of such injury or death on account of which the report is made."9
Plaintiff contends that in the course of his summation defendant's counsel made appeals to the jury which require reversal.
1. At one point, having argued earlier that the accident could not have happened as claimed by plaintiff and that at most a trivial disability was being vastly exaggerated, defendant's counsel went on to say that plaintiff nevertheless was a citizen of this country and as such had every right to appeal to the courts, but that it was a matter of...
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