Pittsburgh SS Co. v. Scott, 10283.

• Decision Date: 03 February 1947
• Docket Number: No. 10283.,10283.
• Parties: PITTSBURGH S. S. CO. v. SCOTT.
• Court: U.S. Court of Appeals — Sixth Circuit

159 F.2d 373 (1947)

PITTSBURGH S. S. CO. v. SCOTT.

No. 10283.

Circuit Court of Appeals, Sixth Circuit.

February 3, 1947.

Carl A. Schipfer, of Cleveland, Ohio (McKeehan, Merrick, Arter & Stewart and George W. Cottrell, all of Cleveland, Ohio, on the brief; Carl A. Schipfer and W. Alexander Eldridge, both of Cleveland, Ohio, of counsel), for appellant.

S. Eldridge Sampliner, of Cleveland, Ohio, for appellee.

Before SIMONS, MARTIN, and MILLER, Circuit Judges.

MARTIN, Circuit Judge.

A jury in the district court found for the plaintiff below appellee here and assessed his damages for personal injuries at two thousand, one hundred and twenty-five dollars in his first cause of action, brought under Section 33 of the Merchant Marine Act of 1920, U.S.C.A., Title 46, Section 688,¹ against the appellant, Pittsburgh Steamship Company. In the same complaint, a second and separate cause of action for maintenance and cure was brought against the same defendant for one hundred and fifty dollars, which was allowed by the jury verdict. On motion of appellant for judgment non obstante veredicto, the district court set aside the judgment on the action for maintenance and cure, but sustained the entry of judgment on the verdict of jury in the first cause of action.

Asserting that the verdict of the jury is contrary to the law and the evidence, appellant urges that the district court should have granted its motion for a directed verdict, made when plaintiff rested on his proof and renewed at the conclusion of all the evidence in the case. The jury verdict, buttressed by substantial evidence, has been upheld by the trial judge. It is perhaps a platitude to restate that an appellate court is not constrained to weigh evidence to determine upon which side preponderance appears.

The fact issue is simple. The appellee Benjamin D. Scott, at the time of his injury on November 21, 1941, was fifty-four years old and had been a seaman in the galley for twenty-two years of navigation on the Great Lakes. The highest rating which he had attained was that of second cook. On or about November 10, 1941, he shipped at South Chicago as porter on the steamer Henry C. Frick, owned by the appellee, Pittsburgh Steamship Company, made two voyages, and left the vessel on November 24th at Lorain, Ohio, three days after he was hurt.

Scott testified that, around eleven o'clock on the morning of November 21st, he was engaged in his regular duties of cleaning dirty pots and dishes in the kitchen when the Chief Cook, Elmer Thessler, walked up to him and said, "What's the matter —" The defendant's attorney interrupted with an objection as to what the cook may have said. The court ruled that the witness "needn't go into detail as to conversation", but should tell what happened. The plaintiff proceeded: "Well, he did say something rough and I didn't give him any answer, but he went back in the pantry. I went on washing, the first thing I knew he struck me in the back, he says, `Get them out, get them out, old man, before I kill you.'" Upon renewed objection of the defendant, the judge instructed the jury to pay no attention to conversation. The plaintiff swore that the cook struck him three times in the "small part" of his back "as hard as he could give it to me" and that the blows would have felled him except for the support of the sink against which he was "pinned." The hardest blow struck was on the left side of his back near the backbone.

Plaintiff testified that Thessler warned him that he would kill him if Scott said anything about the occurrence. Therefore, he did not report it to the Captain until he was leaving the ship at Lorain and needed to secure a hospital "ticket" from that officer so that he could obtain admission to the United States Marine Hospital, which he was ordered to enter after he had been treated as an out-patient for two weeks by a marine doctor. He was confined to the hospital for two months.

Without wasting time to review the clinical history, it will suffice to state that we are not the least impressed with the argument of counsel for appellant that the verdict of the jury is excessive.

The master of the vessel, Captain Diamond, called as a witness by appellant, testified that while the Chief Cook is not a ship's officer he is in charge of the steward's department, in which Scott was performing his duties as porter when struck by the department head. The Captain corroborated the testimony of the appellee that the latter reported the occurrence before he left the ship.

Chief Cook Thessler denied that he ever struck Scott. He testified that the first day appellee came aboard he complained of bad feet and a sore back, which was giving him pain. Thessler said that Scott did not do all the work expected of him and was "helped out" by "the two other lads"; but he denied threatening, though he admitted he "might have reprimanded him in some way."

Obviously, the jury did not believe the Chief Cook's testimony. The issue of credibility between him and Scott was put squarely to the jury in the charge of the court, for the jurors were told that the issue up to them depended "almost entirely on the testimony of Scott and the testimony of Thessler," which were "direct opposites" and "strikingly contradictory"; that "Scott says the Chief Cook did hit him in the back, the Chief Cook says he did not hit him in the back"; and that the jurors would have to determine which of the two men they believed.

The trial judge, moreover, was explicit in his explanation to the jury of the applicable principles of law. The jurors were instructed that they should find for the plaintiff if they believed from a preponderance of the evidence that the Chief Cook struck him in the back and damaged him as plaintiff said and "the Chief Cook's act was within his general employment, that is, if the act was committed in connection with the performance of duties which he was authorized to perform in behalf of the Steamship Company."

The jurors were told that, to find for plaintiff, they must believe from a preponderance of the evidence that "the Chief Cook was acting for the Steamship Company when he struck the blow" and "was acting within the scope of his authority or as a part of his official duties, that it was not a personal controversy between the two men as individuals, separate and apart from all activity on the boat."

"If the Chief Cook and the porter had a personal quarrel,"...