Turchio v. D/S A/S Den Norske Africa, s. 152 and 40
| Decision Date | 27 December 1974 |
| Docket Number | Nos. 152 and 40,D,s. 152 and 40 |
| Parties | Cateno TURCHIO, Plaintiff-Appellee, v. D/S A/S DEN NORSKE AFRICA et al., Defendants and Third Party Plaintiffs-Appellees-Cross-Appellants, v. PITTSTON STEVEDORING CORPORATION, Third Party Defendant-Appellant. ocket 73--1867 and 73--2058. |
| Court | U.S. Court of Appeals — Second Circuit |
Thomas F. Molanphy, New York City (William P. Kain, Jr., Haight, Gardner, Poor & Havens, New York City, of counsel), for defendants and third party plaintiffs-appellees-cross-appellants.
Joseph Arthur Cohen, New York City (Sidney A. Schwartz, Alexander, Ash, Schwartz & Cohen, New York City, of counsel), for third party defendant-appellant.
Martin Lassoff, New York City (Morris Cizner, Zimmerman & Zimmerman, New York City, of counsel), for plaintiff-appellee.
Before SMITH, HAYS and MANSFIELD, Circuit Judges.
Inconsistencies between a jury's verdict and its answers to interrogatories are not an infrequent occurrence. See, e.g., McCandless v. L. G. DeFelice & Son, 144 F.Supp. 462 (W.D.Pa.1956); Fuselier v. Thompson, 155 F.Supp. 75 (W.D.La.1957). In this typical tripartite longshoreman personal injury suit against a shipowner, which in turn impleaded plaintiff's employer-stevedoring concern, we are confronted with an unusual variation on the theme. In this case the jury not only answered interrogatories but rendered separate and successive verdicts that proved to be inconsistent. The district court, Robert L. Carter, Judge, entered judgment on the first verdict. We must decide whether either verdict may be upheld.
Plaintiff, a longshoreman, sued the shipowners in the Southern District of New York, alleging that while performing his duties aboard the S.S. Troubador he suffered personal injuries caused by unseaworthiness and negligence. The shipowners in turn impleaded plaintiff's employer, Pittston Stevedoring Corporation ('Pittston' herein), seeking recovery of indemnity for breach of its warranty of workmanlike service. At trial the shipowners' counsel, before summations and the court's charge to the jury, presented a series of written interrogatories to the court with the request that they be submitted to the jury for answer. 1 The court ruled that Toward the close of his charge with respect to the plaintiff's claim against the shipowners the judge instructed the jury as follows:
'I have now completed my charge to you on the plaintiff's action against the shipowner and in considering the action of the plaintiff against the shipowner, I want you to answer the questions whether or not you find one, whether the ship was unseaworthy; two, whether the unseaworthy condition, if you say yes, was the proximate cause of the injury.
Despite the court's failure to put the questions in writing or to request the jury to furnish written answers, there was no objection to the court's submission of the questions orally to the jury.
After deliberation the jury, without answering the questions, rendered a verdict for $75,000 in favor of the plaintiff and found in favor of the shipowners on their third party claim for indemnity against Pittston. Thereupon the following colloquy between counsel for the shipowners, the Court, Juror No. 1 and counsel for the plaintiff occurred:
'Mr. Baxter (counsel for stevedore): Before the jury is dismissed, I have a request, your Honor.
'The Court: What is it?
'Mr. Baxter: That the jury be directed to reconsider the verdict and to answer the questions that the Court put to it before specifically, the Court in its charge put forward certain questions to be answered, and this verdict is not in accordance with the Court's charge and direction.
'Juror Number One: Would you be meaning in a different wordage and specific arrival of our verdict other than what we have put down on paper?
'The Court: Yes.
'Juror Number One: We couldn't deliberate here?
'Mr. Lassoff (counsel for plaintiff): This is only with regard to the answers of questions one and two, whether there was negligence or unseaworthiness or both.' (Emphasis supplied).
Fifteen minutes later the jury returned to announce,
These answers, of course, were incomplete, since they failed to state whether the shipowner was negligent. After some colloquy between court, counsel and jury, the judge, without objection by any party, recharged the jury as to the elements of plaintiff's claim and the issues, listing six questions which the jury was requested to answer: (1) whether the ship was unseaworthy, (2) if so, whether the unseaworthiness proximately caused plaintiff's injury, (3) whether the shipowners were negligent, (4) if so, whether the negligence was the proximate cause of the injury, (5) whether plaintiff's negligence contributed to the injury, and (6) whether the stevedore breached its warranty to the shipowner.
After the jury had resumed further deliberations plaintiff's counsel, perhaps for the first time appreciating the risk that the jury's further consideration of the issues might jeopardize a verdict for the plaintiff or even result in a verdict in favor of the defendants, moved to enter judgment on the first verdict, claiming that only a general verdict had in fact been asked. The court deferred consideration of the matter, pending its receiving the jury's answers to the questions put to it.
On the following day the jury, after deliberating several hours, returned another verdict, this time finding (1) the ship unseaworthy and (2) in favor of Pittston. The jury also reduced plaintiff's damages from $75,000 to $50,000. It still failed to furnish specific answers to the six interrogatories put to it by the court. The court thereupon declared a mistrial which it promptly withdrew in order to consider motions by the plaintiff and the shipowners to the effect that judgment should be entered upon the original verdict for $75,000. In an opinion filed some weeks later the court held that the original verdict must stand and entered judgment accordingly, from which Pittston appeals. CC DISCUSSION
A trial judge is accorded wide discretion in determining whether to use special interrogatories in conjunction with a general verdict or to limit the jury to the latter. Zaiko v. District of Columbia, 138 U.S.App.D.C. 336, 427 F.2d 606, 609 (1970); Texas & P. Ry. v. Griffith, 265 F.2d 489, 493--494 (5th Cir. 1959); Employers Mut. Cas. Co. v. Johnson, 201 F.2d 153, 156 (5th Cir. 1953). The first question in the present case is whether the special interrogatory procedure was planned from the outset or was an afterthought. Despite Judge Carter's later conclusion that only a general verdict was called for, on this record we are satisfied that the court expected separate answers to the interrogatories put to the jury in its charge. Immediately prior to his charge the trial judge advised that he would grant the request for submission of interrogatories 'in substance' by including the questions in his charge, which he then did, asking the jury to answer them. When the jury brought in a verdict without answering the specific questions the judge stated 'I did want you to bring in a verdict on one, whether you found it was seaworthy or unseaworthy. . . .' Then he followed, in response to a question from the foreman, with the statement 'I did want an answer to questions, one, did you find unseaworthiness, was the proximate cause. . . .' Specific interrogatories were again listed in supplemental instructions to the jury. While the issue might never have arisen if the court had furnished written questions to the jury before its original deliberations, the record as a whole makes it reasonably clear that answers to the court's oral interrogatories were expected.
Plaintiff and the shipowners argue that the trial judge's submission of oral interrogatories to the jury must be treated as a nullity because the court failed to follow the procedure specified by Rule 49(b), F.R.Civ.P., which provides in pertinent part:
'(b) General Verdict Accompanied by Answer to Interrogatories.
'The court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict.'
Had a timely objection been made by the parties, the argument might have merit. But the shipowners did not object and while plaintiff's counsel eventually objected (apparently when he sensed the danger of continuing with interrogatories), he did not do so until some of the oral interrogatories had been answered. Indeed, prior thereto he sought to assist the court in framing the questions to be submitted to the jury.
Unquestionably the proper procedure in securing a...
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