Macris v. Sociedad Maritima San Nicolas
| Decision Date | 17 June 1957 |
| Docket Number | No. 258,Docket 24058.,258 |
| Citation | 245 F.2d 708 |
| Parties | Constantine MACRIS, Plaintiff-Appellant, v. SOCIEDAD MARITIMA SAN NICOLAS, S.A. and Petmar Agencies, Inc., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
Jacob Rassner, New York City (Harvey Goldstein, of counsel), for plaintiff-appellant.
Renato C. Giallorenzi, New York City, for defendants-appellees.
Before HINCKS, STEWART and LUMBARD, Circuit Judges.
Constantine Macris was originally hired as second mate of the S.S. Euryviades in November, 1951, at Piraeus in his native Greece. Two months later, when the vessel was being moored at Bremen, Germany, he "felt a pain" while engaged with other members of the crew in hauling in a line. The ship's captain sent him to a physician in Bremen, who informed him that he had a hernia and advised him to see a doctor at the next port.
From Bremen the vessel sailed to Santos, Brazil, where Macris was examined by a physician and provided with a truss. The ship then proceeded via Trinidad to Baltimore, Maryland, arriving there in April, 1952. At Baltimore Macris was again examined, this time both by a private physician and at a United States Public Health Service Hospital. He was found "fit for light work not involving heavy lifting," but an operation was recommended. He signed off the vessel, and arrangements were made for his transportation on a passenger ship scheduled to leave eighteen days later for Greece, where the operation could be performed.
Macris changed his mind, however, because he did not want to be detained at Ellis Island while awaiting passage home. He signed back on as second mate of the Euryviades on April 7, 1952. From Baltimore the ship sailed to Korea, returning to California in the summer of 1952. In California Macris again signed off the vessel for the purpose of having an operation. He traveled to New York at his employer's expense, and underwent two operations at a hospital there in August of 1952. Afterwards Macris suffered physical impairment, allegedly caused by the administration of an anaesthetic in the course of the second operation. He remained in an out-patient status, but failed to return for further treatment after January 5, 1953, although directed to do so.
Macris' cause of action for negligence and unseaworthiness was based upon a clear cut and narrowly defined theory. The complaint was silent as to what had transpired before Macris decided to resume his employment in Baltimore. It alleged that he "signed articles" as second mate there on April 7, 1952. Recovery was sought upon the ground that his impaired physical condition at the time of his employment in Baltimore had been aggravated by the defendants' negligence and by the unseaworthiness of their vessel during the ensuing three month period. The claim was that this aggravation made necessary two operations instead of one and thereby caused his subsequent disability.
After a five day trial the district judge found that this cause of action had not been proved. The court found as a matter of fact that Macris' condition had not deteriorated during the period between April 7, 1952, when he signed the articles in Baltimore, and July 7, 1952, when he left the ship in California.
It is not contended here that the district court was in error in finding that the essential allegations of the complaint were not proved. The contention is rather that the trial court erroneously denied the plaintiff's motion to amend his complaint to conform to the proof under Rule 15(b), Fed.Rules of Civil Procedure, 28 U.S.C.A.
At the trial the history of what had occurred from the time Macris was originally employed in Greece was received in evidence, despite the narrow scope of the complaint. Defense counsel repeatedly objected to the admission of any evidence of events prior to Macris' reemployment in Baltimore, and the evidence was admitted by the trial judge only for the limited purpose of showing "the course of dealings between the parties before the hiring" at Baltimore.
At the close of the plaintiff's case, his counsel made a perfunctory motion "to amend the pleadings to conform to the proof," but failed to point out any variance between the evidence and the pleadings, or any change in the theory of the plaintiff's cause of action. When the trial judge inquired as to the reason for the motion, counsel replied, "Frankly, I don't see any actual need at the moment." The court denied the motion with leave to renew it at a later time. The motion was not renewed until after the court had announced an adverse decision. Only then did counsel indicate that he desired to broaden his pleadings to assert the defendants' liability for the original hernia in Bremen and for its aggravation during...
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Laffey v. Northwest Airlines, Inc.
...954-955 n.15 (1968). The trial judge's answer to that inquiry is reviewable only for abuse of discretion. Macris v. Sociedad Maritima San Nicolas, 245 F.2d 708, 711 (2d Cir. 1957), cert. denied, 355 U.S. 922, 78 S.Ct. 364, 2 L.Ed.2d 353 (1958); Cole v. Layrite Prods. Co., 439 F.2d 958, 961 ......
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