Guerrero v. American-Hawaiian Steamship Company

• Decision Date: 15 June 1955
• Docket Number: No. 14364.,14364.
• Citation: 222 F.2d 238
• Parties: Adrian GUERRERO, Appellant, v. AMERICAN-HAWAIIAN STEAMSHIP COMPANY, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

222 F.2d 238 (1955)

Adrian GUERRERO, Appellant, v. AMERICAN-HAWAIIAN STEAMSHIP COMPANY, Appellee.

No. 14364.

United States Court of Appeals Ninth Circuit.

April 15, 1955.

Rehearing Denied June 15, 1955.

COPYRIGHT MATERIAL OMITTED

David A. Fall, San Pedro, Cal., for appellant.

Lasher B. Gallagher, San Francisco, Cal., Robert Sikes, Los Angeles, Cal., for appellee.

Before STEPHENS and FEE, Circuit Judges, and WIIG, District Judge.

STEPHENS, Circuit Judge.

Adrian Guerrero was injured on a ship while serving as a seaman employed by American-Hawaiian Steamship Company. He brought suit in the United States District Court under § 33 of the Merchant Seamen's Act of June 5, 1920, amending § 20 of the Seamen's Act of March 4, 1915,¹ for compensatory damages against his employer. The defendant answered by admitting the employment and an injury, but denied the extent of the injury and denied that it was the cause of the injury. Defendant alleged affirmatively that plaintiff caused his own injury and that he had executed a valid and final general release to it.

The case was heard and submitted to the jury and after due consideration it reported that an agreement could not be reached; whereupon the court dismissed the jury. Thereafter the judge requested counsel to file briefs upon the question of validity of the written release which had been alleged by defendant, and which had been introduced into evidence in the course of the trial. Accordingly, briefs were filed and at a subsequent session of the court, without a jury, the judge strongly intimated, in fact decided, that he had determined that the release was valid and suggested that defendant file a motion for a summary judgment. On the following date to which the court had continued the case for setting, the motion for a summary judgment was made by defendant. After a colloquy between the court and plaintiff's counsel in which the latter argued that only a jury could decide the facts, the court granted defendant's motion and ordered judgment for defendant, and judgment was entered.

That judgment is before us on plaintiff's appeal.

Appellant claims that there are questions of material fact in the case which he has a right to have resolved by a jury and appellee counters with its claim that the written release is in standard form, that the evidence presented to the discharged jury showed conclusively that appellant thoroughly understood the terms of the release and signed and accepted payment in accordance with it under legal and other advice and there was no "over-reaching".

No one disputes the premise that seamen are under the protection of the courts, that courts will scrutinize releases when they are questioned, and that the burden is on the employer to show the validity of the release. No one here disputes the right of the seaman to a jury trial of the issues he raises so long as there are unresolved issues between the parties. Garrett v. Moore-McCormack Co., 1942, 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239.

The main question on appeal is: Did the trial judge, in the circumstances obtaining here, have the power to decide that there were no unresolved genuine issues in the case?

The Federal Rules of Civil Procedure, by Rule 56, Title 28 U.S.C.A., provide for the disposing of causes by summary judgment. A summary judgment may be loosely defined as a judgment decreed by the court in a case pending before it when as a matter of law the proceedings show that there is no issue between the parties.

Appellee-defendant's notice of motion and the motion for a summary judgment refer exclusively to the validity of the release. The motion sets out, without affidavit, and without recital of the record and without inclusion of the evidence given before the jury which failed to reach a verdict, that:

"The evidence given at the trial shows without dispute that: Then follows nine numbered statements which counsel has deduced from the evidence as established facts."

The motion ends with the following paragraph:

"Conclusion

"In view of the above uncontroverted facts given in sworn testimony at the trial or set out in exhibits introduced into evidence, there can be no question but that the release is valid as a matter of law; that there is no question of fact to go to the jury; and that defendant, American-Hawaiian Steamship Company, a corporation, should have a summary judgment in its favor."

The record shows that the Notice and the motion for summary judgment (in one document) was filed February 23, 1954, and that on the same day "Proposed Findings of Fact and Conclusions of Law", and a "Proposed Judgment", each conforming to the motion for summary judgment, were filed. And the record further shows that "Findings of Fact and Conclusions of Law" were "Lodged March 19, 1954" and "Filed March 26, 1954".

Rule 56(c) of the Federal Rules of Civil Procedure, Title 28 U.S.C.A., provides in part:

"* * * The summary judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law * * *." Emphasis added.

It is not contended that the "pleadings" in the case show that there are no "genuine issues". There are no "depositions" or "affidavits" filed with the motion; and there are no "admissions" set up in the motion.

In awarding judgment for defendant-appellee at the summary hearing, the trial judge assumed that the evidence in the abortive trial was live for his consideration and that he was authorized to consider plaintiff-appellant's testimony and rule that there were "no genuine issues" existing between the parties and that therefore he had the power and the duty to cause a judgment to be entered in favor of the defendant-appellee. Plaintiff-appellant denied that the court had such power and protested that the court was usurping the power given the jury by the Seventh Amendment to the United States Constitution. We adopt as a part of this opinion the essential parts of the colloquy had between court and counsel upon consideration of the motion for summary judgment,² but in the interest of space we quote it in footnote 2.

There are a number of fatal frailties to the procedure used to arrive at the Findings of Fact and Conclusions of Law, and a judgment. First, we venture to say that the evidence given to the discharged jury is no longer alive as evidence in the case. It is not evidence in the breast of the trial judge for application to any trial of the case, either to another jury or to the judge in summary or in regular trial. Possibly, it could have been set up in an affidavit as evidence amounting to an admission in aid of the summary trial, or have been used on cross-examination, or it could have been admitted by stipulation, but not merely because the court heard the testimony given at another trial in which the same judge presided can it be brought in as evidence in aid of the new pleading at a different trial.

The fact that the case is essentially a jury case must be kept foremost in mind. Even where a verdict has been reached and a judgment entered in accordance with it, but the judgment has been reversed on appeal, the new trial is not a revaluation of the evidence introduced in the old trial. Blackstone, at p. 391 of Volume 3 of his Commentaries, said:

"A new trial is a rehearing of the cause before another jury * * * The parties come better informed, the counsel better prepared, the law is more fully understood, the judge is more master of the subject; and nothing is now tried but the real merits of the case."

The new trial starts "at scratch" upon the pleadings, and there is no evidence yet in the case. The seaman may testify differently or correct the testimony given by him at the first trial, when questioned about it. The jury may listen to the testimony given in the trial before it and any new version may, of course, be attacked by asking the seaman to explain his former statements, but after all is said and done, the jury decides upon its estimate of the whole evidence adduced to it in the new trial as it values it in the attendant circumstances including the credence it accords the witness.

But even if we are entirely wrong in what we have said and we intimate no doubt upon it, and the court was right in applying his memory of evidence in the abortive trial, to the new trial, the judgment must nevertheless be reversed.

As we have just said, the testimony may be enough different to shift a correct decision, but this is not all. Neither the motion for a summary judgment, nor anything the court said, remotely indicate that the seaman ever admitted in his testimony that the release was valid. Appellee, it is clear, was under the impression that every essential to the validity of the release was proved and this was the court's view. But there is no contention that appellant seaman admitted that the evidence established such alleged fact. Here, unquestionably, was a question of fact which, under the Seventh Amendment, could be resolved only by a jury from the evidence in the case.

As was said in Slocum v. New York Life Ins. Co., 1913, 228 U.S. 364, 386-387, 33 S.Ct. 523, 532, 57 L.Ed. 879:

"But, without a waiver of the right of trial by jury, by consent of parties, the court errs if it substitutes itself for the jury, and, passing upon the effect of the evidence, finds the facts involved in the issue and renders judgment thereon." Emphasis added.

The situation just alluded to by the Slocum case was where a verdict had been reached but the judgment had been set aside. In referring to a demurrer to the evidence in the same case, the court said, 228 U.S. at pages 388-389, 33 S.Ct. at page 533:

"* * * and the admission of facts on demurrer * * * must be of the facts, and not merely the evidence from which their existence is inferable."

So inclusive is the...