Gypsum Carrier, Inc. v. Handelsman

• Decision Date: 20 September 1962
• Docket Number: No. 17360.,17360.
• Citation: 307 F.2d 525
• Parties: GYPSUM CARRIER, INC., Appellant, v. William D. HANDELSMAN, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

307 F.2d 525 (1962)

GYPSUM CARRIER, INC., Appellant, v. William D. HANDELSMAN, Appellee.

No. 17360.

United States Court of Appeals Ninth Circuit.

August 1, 1962.

Rehearing Denied September 20, 1962.

COPYRIGHT MATERIAL OMITTED

Graham, James & Rolph, and Francis L. Tetreault, San Francisco, Cal., for appellant.

Malcolm N. McCarthy, San Francisco, Cal., for appellee.

Before POPE, HAMLIN and BROWNING, Circuit Judges.

BROWNING, Circuit Judge.

Appellee was chief steward aboard the appellant's S.S. Ocean Carrier. As the vessel was being prepared for sea, tackle which two members of the crew were attempting to secure for the voyage fell and struck appellee. Appellee filed two libels against appellant. The first sought maintenance and cure under the general maritime law. The second alleged a cause of action for unseaworthiness under the general maritime law and for negligence under the Jones Act,¹ and sought general and special damages. The libels were consolidated for trial before the court without a jury. Appellee was awarded $33,500.

We sustain the District Court's finding of liability. We conclude that no errors prejudicial to appellant were made in the computation of damages. The judgment is affirmed.

I. LIABILITY

A. Contributory Negligence. Appellant concedes that there was evidence to support the District Court's finding that its crewmen handled the tackle negligently. Appellant contends that the District Court should have found appellee guilty of contributory negligence.

Appellant suggests that the facts were undisputed and that the District Court's holding that appellee was not negligent is therefore a conclusion of law which must be reviewed free of the protection of the "clearly erroneous" rule.²

We cannot agree. In some respects relevant to the issue of contributory negligence the evidence was unclear or conflicting as to precisely what appellee saw before the accident, where he was in relation to the tackle immediately before and at the moment of impact, and what he did. Appellant suggests that appellee knowingly placed himself in the path of the tackle and in consequence was struck as it fell. But to reach this conclusion one must reject the testimony of appellee, emphasize certain aspects of the deposition of one of two seamen who handled the gear, and draw inferences adverse to appellee from facts susceptible of contrary inferences.

Thus we need not consider whether a trial court's conclusion as to the existence of negligence is generally to be classified as one of fact or of law.³ Clearly enough in the present case it reflected a factual determination from conflicting evidence. There is nothing to indicate, as appellant suggests, that the District Court tested appellee's conduct against an improper standard of care.

If the District Court had agreed with the appellant's resolution of the problems of proof, it also would have concluded that appellee was guilty of contributory negligence. The District Court did not interpret the evidence as appellant does, and neither do we. On an examination of the whole record, we cannot say that the District Court's determination that appellant failed to carry its burden of proving contributory negligence was clearly erroneous.⁴

B. Unseaworthiness. The District Court also found that appellee's injuries were caused by the unseaworthiness of the vessel. Appellant concedes the sufficiency of the evidence to support the finding of unseaworthiness, but contends that the finding of causation was clearly erroneous. Since appellant concedes its negligence, and since we sustain the District Court's finding that appellee was not contributorily negligent, we need not reach this alternative basis for liability.

C. Injury. Appellant challenges the District Court's finding that appellee sustained severe and permanent injuries as a result of the accident.

The falling tackle struck appellee's head, causing an abrasion. He made immediate outcry, sought treament from the second mate who was acting as ship's doctor, and during the remainder of the voyage requested and was given pain killers for severe headaches. When the voyage was completed, appellee sought medical care. He later suffered a blackout, and electroencephalogram (EEG) tests were performed. They revealed a brain lesion. There was testimony that the brain damage resulted from the accident, that it was the cause of appellee's headaches, dizziness, and blackouts, and that it would prevent appellee from returning to his employment as chief steward.

The accident and the brain injury are indisputable facts. The District Court's finding of a causal connection between the two rests principally upon (1) the appellee's testimony of headaches, dizziness, and blackouts beginning with the accident, (2) his denial of any prior head injury sufficient to account for the brain lesion, and (3) medical opinion of causal relationship based upon these elements considered in the light of the objective symptoms (particularly the abnormal E EG).

Appellant suggests that the objective medical data was not conclusive for a variety of reasons, and that the District Court's finding of causal connection between the accident and the brain damage therefore depended upon acceptance of the testimony of the appellee. Appellant also points out that the District Court's finding that the appellee does in fact suffer from incapacitating headaches, dizziness, and blackouts necessarily rested largely upon appellee's testimony. Appellant then launches a vigorous attack upon appellee's credibility.

Appellee was twice subjected to searching cross-examination in the trial court. During the trial appellant also attacked appellee's credibility on the basis of voluminous evidence regarding earlier illness and injury claims made by appellee. The District Court resolved the issue of credibility in favor of appellee. While this circumstance does not totally insulate the District Court's findings from review on appeal, it does, and should, condition that review. In admiralty appeals, as in civil appeals generally, "due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses."⁵ In this Court appellant has rested its argument, as it must, upon a belief that after reviewing the record as a whole we "will be clearly and firmly convinced that libelant's accident of May 26, 1959, had no relation to his claim of serious and disabling injury * * *." We have reviewed the record with care, keeping appellant's challenge to appellee's credibility particularly in mind. We are not left with the conviction which appellant suggests.

D. Fraudulent Concealment. When appellee applied to appellant for employment, he did not disclose his record of prior claims upon other shipowner-employers for illnesses and injuries. Appellant asserts that the undisclosed facts were material to the risk which it undertook in hiring appellee, that appellee knew this, and that his failure to disclose the facts was "fraud ab initio which barred him from recovery on this claim based on his employment." Appellee's right to recover either for negligence under the Jones Act⁶ or for maintenance and cure under the general maritime law⁷ depended upon his status as a seaman. Appellant's argument rests upon the premise that appellee's failure to disclose his "claims record" prevented him from acquiring that status.

To support its contention that recovery under the Jones Act was barred, appellant in its brief relied upon an analogy drawn from Minneapolis, St. Paul & Sault Ste. Marie Railway Company v. Rock, 279 U.S. 410, 49 S.Ct. 363, 73 L.Ed. 766 (1929). In the Rock case, the Supreme Court held that a man who was refused employment by a carrier because of his physical condition and who subsequently obtained employment from the same carrier by applying under a false name and having a healthy friend take the physical examination in his stead was not entitled to bring suit as an "employee" of the carrier within the meaning of the Federal Employer's Liability Act.⁸

The Supreme Court based its decision in Rock upon the ground that a different result would frustrate the carrier's efforts to select physically fit employees in the interests of safety and the protection of commerce, and thus would be contrary to public policy. In their briefs in the present case, appellants argued that the favor status of seamen and the vulnerability of shipowners to exaggerated claims for injuries and illnesses required the same result.

Subsequent to the filing of appellant's briefs, the Supreme Court in Still v. Norfolk & Western Railway Co., 368 U.S. 35, 82 S.Ct. 148, 7 L.Ed.2d 103 (1961), reconsidered its decision in Rock. The Court noted that the Federal Employers' Liability Act reflected a policy that carriers should respond in damages for injuries inflicted upon their employees by the carriers' negligence, and held that this specific statutory policy was not to be eroded further by the general considerations relied upon in Rock. The Court held that "in all cases not involving the precise kind of fraud involved in Rock," the terms "employed" and "employee" as used in the Federal Employers' Liability Act must be "interpreted according to their ordinary meaning, and the status of employees who become such through other kinds of fraud, although possibly subject to termination through rescission of the contract of employment, must be recognized for purposes of suits under the Act."⁹

The "fraud" charged to appellee here is patently not of the kind present in Rock. Prior to Still, decisions applying Rock required "substantial proof of a direct causal connection between the misrepresentations made at the time of hiring and the subsequent injury to the employee, before any defense of fraud can be considered as a bar to a recovery."¹⁰ In any event, under Still, even proof of a direct causal relationship will no longer suffice.¹¹ The Supreme Court plainly indicated in Still...