Scates v. Isthmian Lines, Inc.

• Decision Date: 08 July 1963
• Docket Number: No. 17754.,17754.
• Citation: 319 F.2d 798
• Parties: Henry SCATES, Appellant, v. ISTHMIAN LINES, INC., a corporation, et al., Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

319 F.2d 798 (1963)

Henry SCATES, Appellant, v. ISTHMIAN LINES, INC., a corporation, et al., Appellee.

No. 17754.

United States Court of Appeals Ninth Circuit.

July 8, 1963.

Dorsey Redland and Van H. Pinney, San Francisco, Cal., for appellant.

McCutchen, Doyle, Brown & Enersen, Russell A. Mackey and Bryant K. Zimmerman, San Francisco, Cal., for appellee.

Before HAMLIN and DUNIWAY, Circuit Judges, and BOWEN, District Judge.

DUNIWAY, Circuit Judge.

Plaintiff appeals from a judgment entered upon the verdict of a jury in an action brought by him to recover damages for injuries that he claims to have sustained on board the SS STEEL ARCHITECT. The ship is owned by appellee, Isthmian Lines, Inc. It impleaded the United States (the charterer) and California Stevedore & Ballast Company, the latter being the stevedoring company which was handling the loading of the ship.

At the commencement of the trial, the court ruled that evidence should first be offered in relation to the liability of Isthmian on the theory of unseaworthiness, and that a separate verdict would be rendered on that question. If the verdict were for Isthmian, this would also dispose of its claim against the impleaded defendants. So far as appears, there was no objection to this procedure and the case was tried in a manner consistent with the court's order.

Appellant makes four contentions:

1. That the court should have granted his motion for a new trial because the evidence shows substantially without contradiction that the accident occurred in the manner asserted by appellant and resulted from unseaworthiness of the ship.

2. That it was error for the court to permit counsel for the impleaded parties to participate at the trial and cross-examine witnesses.

3. That it was error to allow a witness to testify after he had sat in the courtroom in violation of an order excluding witnesses.

4. That the court erroneously refused to give certain proposed instructions.

We conclude that the judgment should be affirmed. We consider appellant's points in the order stated.

1. The court did not err in denying a new trial.

Appellant and his witnesses testified that while a gang of longshoremen, of which appellant was a member, were covering a hatch on the ship, one of the boards used for that purpose broke in two when appellant stepped on it, thus causing him injury. It was the theory of Isthmian that the accident did not occur. In this connection it was shown that Isthmian had no knowledge of the alleged accident until suit was filed more than eleven months after its claimed occurrence, that there was considerable improbability in appellant's story, and that there was considerable contradiction in the testimony of various of his witnesses. The testimony indicates that the hatch board in question was from 8 to 10 feet long, from 10 to 12 inches wide and about 3 inches thick. Each board was placed with its ends resting in grooves in the hatch coaming and the hatch beam and was supported in the middle by a "strongback." Appellant testified that the board broke about half way between the coming and the strongback so that it was hanging down in two pieces between the strongback and the coming. This means that under appellant's weight a board of these dimensions had broken in two places. It was Isthmian's position that this occurrence is so improbable that the jury did not have to believe appellant's witnesses. Appellant also testified that when the board broke under him his leg went through the resulting hole all the way to the crotch. There was testimony, however, that cargo in the hold below was stored to within a few inches of the hatch boards. This again, says Isthmian, indicates the improbability of appellant's story. The walking boss, called by Isthmian, testified that he did not hear about the claimed breaking of the board and that he had never heard of a hatch board breaking under a man's weight. The gang boss testified that the board did break, but that he had never had anything like this before. Moreover, he was impeached. In addition, appellant gave two versions of how the accident occurred, one in his deposition, and another at the trial. Isthmian persuaded the jury to accept its theory as to the facts and we cannot say that it was wrong.

Appellant's assertion that the trier of fact may not reject so-called uncontradicted testimony has long since been rejected by this court. (See Ramos v. Matson Nav. Co., 9 Cir., 1963, 316 F.2d 128, 132, and cases there cited.)

We do not doubt that it was within the discretion of the trial court to grant appellant's motion. It was also within its discretion to deny the motion, and this it did.

2. It was not reversible error for the court to permit counsel for the impleaded parties to participate at the trial and cross-examine witnesses.

The only issue submitted to the jury was that of the liability of Isthmian to appellant based upon the claimed unseaworthiness of the vessel. However, the United States and California Stevedore & Ballast Company were parties to the action and obviously had a direct interest in the question that the jury was to decide. At no time did appellant's counsel object to their participation at the trial or cross-examination of witnesses. In one instance an investigator for the government, an F.B.I. agent, was called. It is not clear whether he was called by Isthmian or by the government, but his direct examination was conducted by counsel for the government rather than by counsel for Isthmian. Appellant's counsel did not object. On motion for a new trial, the court concluded that there was no impropriety in the procedure followed and no prejudice to the appellant. Our review of the record indicates that these conclusions of the court are correct.

3. It was not reversible error to allow testimony by a witness who had sat in the courtroom in violation of an order excluding witnesses.

It is also claimed that the F.B.I. agent had been sitting in the courtroom while another witness was testifying, in violation of an order excluding witnesses which the court had made upon motion of the appellees. When appellant's counsel raised the question at the time the witness was called, the court asked counsel if he knew that the witness was present in the courtroom while appellant's witness Cabrel was testifying and counsel replied as follows:

"We did. And perhaps we should have excluded him but we did not intend to call him as a witness at that time, unless Mr. Cabrel changed his story."

The court was of the opinion that there was no prejudice and permitted the witness to testify. The court had power to refuse to permit him to testify, but it also had power to permit him to testify, and there was no abuse of discretion in so doing. (See 6 Wigmore, Evidence § 1842 (3d ed. 1940))

4. The court did not err in refusing to give the requested instructions.

The requested instructions are set out in the margin.¹ The court did instruct the jury on the subject matter of these instructions and neither at that time nor in his briefs in this court does appellant contend that what the court told the jury was erroneous. We also set out the court's instructions in the margin.² We think that the court's instructions adequately covered the...