Stankiewicz v. United Fruit Steamship Corporation

• Decision Date: 30 January 1956
• Docket Number: No. 102,Docket 23477.,102
• Citation: 229 F.2d 580
• Parties: Joseph STANKIEWICZ, Plaintiff-Appellant, v. UNITED FRUIT STEAMSHIP CORPORATION, a corporation, and United Fruit Company, a corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

229 F.2d 580 (1956)

Joseph STANKIEWICZ, Plaintiff-Appellant, v. UNITED FRUIT STEAMSHIP CORPORATION, a corporation, and United Fruit Company, a corporation, Defendants-Appellees.

No. 102, Docket 23477.

United States Court of Appeals Second Circuit.

Argued December 7, 1955.

Decided January 30, 1956.

Milton Garber, Hoboken, N. J. (Baker, Garber & Chazen, Hoboken, N. J., of counsel and Nathan Baker, Attorney, Hoboken, N. J., on the brief), for plaintiff-appellant.

Benjamin E. Haller, New York City (Burlingham, Hupper & Kennedy and Eugene Underwood, New York City, Attorney, on the brief), for defendant-appellee.

Before SWAN, FRANK and LUMBARD, Circuit Judges.

LUMBARD, Circuit Judge.

Plaintiff, a seaman on defendant's vessel, the Hibueras, brought this action on the law side of the District Court joining counts for negligence under the Jones Act, 46 U.S.C.A. § 688, unseaworthiness, and maintenance and cure. He alleged that one Bozarth, a fellow seaman, struck him with a jacket, the zipper of which hit and injured his eye. The plaintiff also alleged diversity of citizenship. The case was tried before Judge Bondy and a jury which disagreed. Judge Bondy had reserved decision on defendant's motion for a directed verdict. He granted it as to the unseaworthiness count, but denied it as to the other two and ordered a new trial on those two counts. The new trial was had before Judge Edward P. Murphy and a jury, and he directed a verdict on both counts. Plaintiff has appealed, challenging the rulings on all three counts.

The unseaworthiness and maintenance and cure counts can be readily disposed of. An examination of the record before Judge Bondy reveals that he properly directed a verdict on the unseaworthiness count. Although it is undoubtedly true that a seaman with vicious and dangerous propensities may make a ship unseaworthy, Boudoin v. Lykes Brothers Steamship Co., Inc., 1953, 348 U.S. 336, 75 S.Ct. 382, 99 L. Ed. 354, there was no evidence before Judge Bondy to support a jury finding that Bozarth was such a person. The only evidence on this point was the plaintiff's rather vague testimony that Bozarth often drank and that when he drank he was "belligerent, boisterous, loud, picking on somebody, started fights sometimes." When asked why he called Bozarth belligerent, the plaintiff replied: "Well, he was argumentative." He amplified further by saying that Bozarth "argued with you and picked on you and told you you were no good and things like that, you know, to aggravate you. He was against you." When pressed further the plaintiff testified that Bozarth engaged in two fights that he knew of, one in which he took a swing at the gangway watch. The other one was an altercation with a mess boy as to which the plaintiff knew very little. The defendant, of course, countered with evidence that Bozarth was a man of exemplary disposition. Even though it be viewed with the utmost sympathy, the plaintiff's evidence was insufficient to establish that Bozarth was "a seaman with a wicked disposition, a propensity to evil conduct, a savage and vicious nature". Boudoin v. Lykes Brothers Steamship Co., Inc., supra, 348 U.S. at page 340, 75 S.Ct. at page 385. There was nothing to show that Bozarth was not equal in disposition to the ordinary men of his calling. Jones v. Lykes Bros. Steamship Co., 2 Cir., 1953, 204 F.2d 815, certiorari denied 346 U.S. 857, 74 S.Ct. 72, 98 L.Ed. 370.

On the maintenance and cure count the verdict was properly directed because there was no proof that the plaintiff had spent anything for his maintenance and cure. Where the plaintiff has spent nothing, he can recover nothing. Johnson v. United States, 1948, 333 U.S. 46, 50, 68 S.Ct. 391, 92 L.Ed. 468; Field v. Waterman S. S. Corp., 5 Cir., 1939, 104 F.2d 849.

On the negligence count, however, the case should have gone to the jury. The evidence showed that the plaintiff was injured on the evening of February 3, 1949 while the ship was in Chesapeake Bay after leaving Baltimore. Bozarth, an electrician on the Hibueras, had invited the plaintiff and two other...