Staplin v. Maritime Overseas Corp., 693

• Decision Date: 16 July 1975
• Docket Number: No. 693,D,693
• Parties: Robert Fross STAPLIN, Plaintiff-Appellant, v. MARITIME OVERSEAS CORP., Defendant-Appellee. ocket 74-1506.
• Court: U.S. Court of Appeals — Second Circuit

Page 969

519 F.2d 969

Robert Fross STAPLIN, Plaintiff-Appellant, v. MARITIME OVERSEAS CORP., Defendant-Appellee.

No. 693, Docket 74-1506.

United States Court of Appeals Second Circuit.

Argued May 8, 1975.

Decided July 16, 1975.

Francis J. Dooley, Orange, N. J. (Henry Isaacson, New York City, on the brief), for plaintiff-appellant.

Joseph V. Fleming, New York City (Haight, Gardner, Poor & Havens, J. Ward O'Neill, New York City, on the brief), for defendant-appellee.

Before FEINBERG, TIMBERS and VAN GRAAFEILAND, Circuit Judges.

FEINBERG, Circuit Judge:

This case presents another aspect of the attempt of trial judges to control verdicts they regard as excessive and the rights of plaintiffs to appeal from such action. In one of those coincidences that makes the law so fascinating, the procedures utilized here are almost the precise reverse of those in Reinertsen v. George W. Rogers Constr. Corp., 519 F.2d 531 (2d Cir. 1975), in which this court recently discussed the general problem at length. Robert Fross Staplin appeals from an order of the United States District Court for the Southern District of New York, Richard H. Levet, J., which reduced a jury verdict of $3,500 to $2,335 and directed entry of judgment in the lower amount. For reasons indicated below, we reverse the order of the district court and order judgment in the full amount awarded by the jury.

I

Plaintiff Staplin injured his right foot while employed in March 1973 as a merchant seaman on the S/S Overseas Ulla, a vessel owned by defendant Maritime Overseas Corp. The circumstances of the accident need not concern us because in a bifurcated jury trial before Judge Levet, defendant was apparently found liable for plaintiff's damages and does not now complain of that verdict. ¹ The second part of the trial covered damages. On this issue, there was evidence before the jury that plaintiff was a chief pumpman aboard the vessel; that he was a "permanent employee" and would not have had to leave the vessel had he not been injured; that he did leave the vessel on March 22, 1973 with a Master's Certificate to be treated at the United States Public Health Service Marine Hospital, which pronounced him not fit for duty at that time; and that he was not found fit for duty until May 30, 1973.

The trial was held in March 1974, and plaintiff's claim for damages was limited to pain and suffering and lost earnings for the period he was not fit for duty. On the issue of lost earnings, plaintiff introduced into evidence exhibit P-2, showing that he had earned $2,125.78 for two months and four days of work on the voyage of the S/S Ulla during which he was injured. There was also a stipulation as to the wages earned by plaintiff in the four year period of 1969-72. These averaged about $6,200 per year. ²

The judge originally told the jury that it should award plaintiff as compensation for lost earnings what the jury believed "plaintiff would have earned," that it "may consider the average" of the four years' earnings and that it "may also consider, for whatever aid it may be," exhibit P-2. The judge furnished the jury a form upon which it was to record its special verdict in response to questions, which are quoted hereafter. After starting deliberations, the jury sent a note which asked:

Was plaintiff paid wages while unfit for duty?

The judge responded:

The answer, of course, is no. That's what the claim is all about as far as past wages are concerned. . . .

I will explain to you that the proper way to calculate it would be to take an average an annual amount for the previous four years and allot four months and six days, ³ I guess it is, and if you believe that's correct, and it has been proved that he was unable to work because of the accident, then you put that amount, whatever amount you come to, in the special verdict. I think I have answered it.

Is there any question now?

Do you understand, Mr. Foreman?

The Foreman: Yes.

The Court: Is there anybody that doesn't understand?

Have I correctly stated it, Mr. Dooley?

Mr. Dooley (Plaintiff's counsel): Yes, your Honor.

The jury eventually returned a verdict, in which it answered the questions put to it as follows:

The jury was then excused. Apparently believing that the jury had not followed his instructions, the judge asked defendant's counsel to compute Staplin's average annual earnings for four years and, based upon that, to arrive at a figure for the period plaintiff was unfit for duty. The judge also suggested to counsel that he move to reduce the verdict, which counsel was happy to do. The judge then reduced the figure of $2,400, given by the jury in answer to question 1(b), to $1,135 to make the total verdict $2,335. Plaintiff's counsel objected strenuously to the entire procedure, arguing, among other things, as follows:

Mr. Dooley: The objection is that we have had a jury finding which cannot be disturbed. It is a finding of fact and the fact has been transmitted into figures. Any instructions to the jury on the mathematical the man's past earnings records for the previous two months. In fact, it was almost t the man's past earnings records for the previous two months. In fact, it was almost the same period now. So they could very well use that as a guide in calculating the wages that were lost by the man had he stayed aboard the vessel.

Defendant responded by arguing that plaintiff's articles terminated when he got off the vessel and there was no proof that he would have stayed on the vessel. Plaintiff's counsel rejoined that there was such evidence but the court adhered to its earlier ruling, apparently on the ground that "there wasn't any proof that it (plaintiff's employment on the vessel) would go on." Judgment was entered upon the reduced verdict in the sum of $2,335, together with costs. From that judgment plaintiff appeals.

II

Plaintiff argues that the district judge had no right to reduce the jury's award for damages and enter judgment in the lower amount. According to plaintiff, this infringed his seventh amendment right to trial by jury because there was substantial evidence to support the jury verdict for lost wages. Defendant responds that plaintiff cannot "appeal from a jury instruction to which he specifically agreed" ⁴ and that the trial court did not abuse its discretion.

There is no doubt that plaintiff has the right to appeal from the judgment in the lower amount. The judge did not use the procedure of ordering a new trial unless plaintiff agreed to remit a specified sum. Had the judge done that and had plaintiff filed a remittitur "under protest" and then appealed, we would have been faced with the question of appealability discussed at some length, but not decided, in Reinertsen v. George W. Rogers Constr. Corp., supra. Here, the judge simply substituted his judgment for that of the jury and, without any indication of assent by plaintiff, entered judgment in the lower amount. This was clearly a judgment from which plaintiff could appeal. Cf. Kennon v. Gilmer, 131 U.S. 22, 30, 9 S.Ct. 696, 33 L.Ed. 110 (1889).

We assume from the rest of defendant's argument that what it means is that plaintiff cannot properly complain about the judge's supplemental charge on the method the jury should use in calculating lost wages because plaintiff agreed to it. Plaintiff responds that he is not attacking the charge. He agreed, he now says, not that the jury was bound to calculate damages based upon an average of his earnings over four years but only that the court's supplemental charge was a correct statement of defendant's position. The colloquy is ambiguous. The judge's statement of "the proper way" to calculate lost wages "if you believe that's correct" was not a clear direction to the jury that it was required to use the averaging method. ⁵ Obviously...