*1 Judge, clearly PHILLIPS, ord shows the court did sus- Chief Before pend imposition MURRAH, of sentence on count Circuit HUXMAN and placed Freyta Judges. probation 6 and that on
on that count. Affirmed.
PER CURIAM. containing six counts An information against Freyta in the United
was filed for District District Court States charged counts of the Colorado. Certain 2591(a) and
violations of U.S.C.A. § charged of 26 U.S. violations the others plea Freyta 2593(a). entered C.A. § guilty information count to each custody of the and was sentenced to period Attorney of 20 for a General KELCEY, Plaintiff-Appellant, Arthur A. inclusive, 1 to months on each of counts imposi- concurrently. On count to run Incorporated, TANKERS COMPANY De- suspended and he of sentence was fendant-Appellee-Cross-Appellant. period placed probation for was on No. Docket 23140. expiration year, one to commence at imposed imprisonment terms Appeals United States Court of counts inclusive. Second Circuit. Freyta 20-months’ sentence served the Argued Oct. 1954. released on the first five counts was Decided Nov. August 20, September 2, 1952. On for arrest a warrant was issued probation. was for violation of his It August 24, Septem- 1953. On served on Court, after a ber District hearing, adjudged pro- order of Freyta bation and that be revoked custody of the Attor- committed ney years period General four Freyta appealed from count 6. has four-
the denial of a motion to vacate the
year sentence, filed him under 28 U.S.
C.A. § Freyta upon
The acts of which the probation predicated
revocation of during one-year probation- occurred ary period. The warrant was issued and during probationary period.
served provisions Under of the Probation Act, 18 U.S.C.A. the court had § Hand, Judge, L. Circuit dissented in jurisdiction to issue the warrant part. hearing pro- after for cause to revoke the impose bation and the sentence on count court, placing The fact Freyta probation on count did not
expressly say imposition of sentence suspended is not material. The rec-
n City, Henry Fogler, ap- New York for pellant. Nelson, Healy, Burke, & Baillie New City (Allan
York A. Baillie and Richard O’Connell, City, New York of counsel), T. appellee. for CLARK, Judge, Before Chief and L. FRANK, Judges. HAND and Circuit Judge. FRANK, Circuit complaint, 1. Plaintiff filed a February alleging defendant’s liability an attack on seaman, fellow which occurred Janu ary, vessel, on defendant’s Mission opening Francisco. At the San trial, on December the trial judge, objection, over defendant’s allow complaint an amendment ed alleged attack .that the on de occurred. Co., Cir., Cooperage on Greif vessel, Bros. F. Tomahawk fendant’s U.S.N.T. argues April 21, that 2d 824. Defendant 1948.1 judge erred, the amendment because plaintiff’s 2. The dismissed which, on action asserted new cause complaint so far as a claim it covered *3 by the 3- was barred December aggra- cure, for maintenance and or an in year contained limitations statute of injuries resulting vation the from the of agree. Both not do the Jones Act. We alleged assault due to fail- defendant’s operated under contracts vessels were provide ure to and atten- medical care facts The true the with United States. by judge— tion. The facts as the found place of the assault and as time amply supported by which are the evi- reasonably to, have could known were “clearly dence and erroneous”— not defendant, by, the ascertained been (a) provide showed no failure to cure plaintiff judge found that whereas the nothing (b) and to a causal re- establish amnesia, recurrent had suffered from lation in fact effects of between the the for him remem which made it difficult to assault and the from which ailments finding facts, ber the true and that plaintiff subsequent in suffered 1949 and by amply supported Es the evidence. years.3 pecially as did defendant the amendment judge harm, judge plaintiff think ruled no actual we the 3. The awarded light $1,500 damages correctly, 15(c), relatively of 28 the Rule as for the mi- injuries plaintiff immediately Atlantic Line nor Tiller v. Coast to U.S.C.A.2 re- 574, 580-588, sulting by S.Ct. R. 65 from the assault on him a fel- Winters, 421, 465; facts, 89 5 low L.Ed. Woods v. seaman. We think the as Cummings 759; Cir., by judge,4 justified v. 171 F.2d cf. found his con- judge opinion, Captain In his “As a was 1. said: that he of also the the ‘Mis- depositions January 1949, 15, ac sion result of taken after this San Francisco’ on plaintiff commenced, developed Kelcey it that and that was steward plain Scott, Cook, on both there was no assault committed on vessels. the Second assault, who tiff on ‘Mission San Francisco’ committed the tanker was on the ‘Tomahawk,’ January 2, 1949, plaintiff on but that be but was on not the ‘Mis- Francisco’; seizure on sion came ill and had a that vessel San in fact Scott died January 1949, 15, 1948, plaintiff while the vessel December on before * * * sea, in Far East. the seizure on was at the ‘Mission San Fran- 22, January 15, granted action on cisco’ on At trial this December of plaintiff complaint 1953, to to amend the com motion moved amend the be- inju appeared plaint allege cause that sustained it one that assault upon by an attack was involved and of ries reason made someone had made by member the crew a mistake as to him a fellow of the name of the vessel 21, (Scott) April and TJSNT the date of the assault.” January ‘Tomahawk,’ that on and 2. That Rule reads: “Relation Back of aggravated injuries on the were Amendments. Whenever the claim or de- Francisco’ de TJSNT ‘Mission San pleading fense asserted in the amended provide medical care fendant’s failure to conduct, transaction, arose out attorney Plaintiff’s claimed and attention. attempted or occurrence set forth or lapse of mem that ory had suffered original pleading, set forth in injuries re of the result amendment relates back to the date of the (alleged brain dam the assault ceived original pleading.” plain , age) was the reason and that opinion, judge 3. In his said: “I am occurred on the the assault tiff Kelcey’s injuries satisfied claimed having Francisco,’ ‘Mission TJSNT forgotten grossly exaggerated were and that the ail- ‘Tomahawk.’ the TJSNT about ments from which he suffered in 1949 Only was claimed. Both one assault subsequent years are due to certain operated the defendant. vessels were physical conditions, old some of them log ‘Tomahawk’ contained ” * * * going back as far as 1936. April 21, assault record (Capt. Captain following findings ‘Tomahawk’ 4. The made the by deposition Fertig) to this relative issue: testified April February 11, plain- the assault “6. took On engaged appears performance place It tiff was ‘Tomahawk.’ on the 544 injuries damages, suffered me that, defend of and illnesses such elusion -- Tank follows: Keen v. Overseas ant was liable. 515; Corp., Cir., Jones 194 F.2d ship 2 blank], Co., Inc., Cir., These Lykes lines were left Steamship [N.B. Bros. v. in addition to I release them from every right I now each which agree with 4. We do any hereafter have because inadequate. that this award thing happened matter or before proof; McAllister had the burden of He being my signing paper, in- States, Cir., re- F.2d United paper tention of this grounds, S.Ct. 6. other versed on *4 myself wipe the slate clean as between findings respect in judge’s as in this The respects released, parties and the as even “clearly others, obviously errone- are not injuries, and claims not men- illnesses Indeed, and all matter as to this ous.” * * or tioned herein not known to me. others, painstakingly ex- the most that, release, in I I know every plored evidence. item of the am, among things, settling in other full 1949, plaintiff 11, ex- 5. On October injuries, for all and disabilities illnesses pre- release, printed form on a a ecuted may now, I I which have and which defendant, by stated sented which future, in of have the either because the by payment of of $700 in consideration a particular mentioned occurrence above plaintiff, released the to he defendant any in or of occurrence the because other Inc., and and Tankers States United both, though past, or because of even particular in several and “their vessels * * already, know I do not have have Francisco the S. Mission San S. may or in future such in- now the right every I now which from and claim juries, disabilities, illnesses or and have, even have, may on account or hereafter Captain “13. The of the ‘Tomahawk’ as Chief on the USNT his duties Steward negligent retaining was member of the in as in an Scott a involved ‘Tomahawk’ argument became crew, Cook, had after he been named with the Second days April 21, 1948, argument told two before Scott’s The concerned Scott. Kelcey gal- bakery of Scott chased out the at- as a He was work cook. ley by punched with a knife. several tacked Scott and was by As “14. a result of the attack Scott did not in the Plaintiff times face. April 21, plaintiff 1948, provoke on suffered the attack. injuries face, about a Scott, his over Cook, cut his was a The Second “7. eye, bloody nose, young man, left a strong years cuts about his Plain- old. mouth, damaged and a Kelcey, fifty-six denture. tiff, was no and Kelcey any “15. Scott physically. did not kick in for Scott match part body April 21, his convicted, of head on or in had been “8. Scott 1948, any or at Navy time. in an attack with a the dangerous injuries Kelcey “16. The weapon suffered served a sen- and had by year reason the attack Scott were of a for that assault. tence permanent or not serious of a nature. days prior two at- “9. About injuries any He did suffer brain April had chased tack of Scott damage, any permanent eye hernia or or ear by galley Kelcey with a knife. out of injury as a result of the assault Shortly April after attack of “10. April Scott on Captain when the sent day following The “17. the aforesaid Officer, Pedley, bring Scott be- Chief fore plaintiff attack sume a member was able to and did re- Pedley him, Scott was threatened occupation his usual duties and drop did not an axe Scott with crew of the USNT ‘Tom- Pedley threatened to shoot him. until axe voyage. to the ahawk’ end of the In belligerent was a man of Scott “11. working fact he overtime within disposition and vicious and was
violent days thereafter, April a few on 23rd and * * of the crew. * menace to welfare 24th. gave plaintiff prop- un- The USNT ‘Tomahawk’ was “30. defendant “12. respect April adequate seaworthy its, in crew in er and medical care and treat- following it had ment in that Scott its Second the attack the USNT April ‘Tomahawk’ 1948.” Cook. though particu- fail- they tion the contended that the mentioned are not * * * ”5 provide larly The ure to medical care after in this release. ag- judge, however, seizure on the Mission Francisco of his “Conclu- one gravated injuries resulting Law,” from “On October sions stated: 1949, prior earlier assault on the Tomahawk. institution of the with- board to the may Considering signed gener- lapse memory, suit, plaintiff, Kelcey, any relinquished well be that at time he executed al release in which he advising release, he, rights against defendant, lawyers Tank- and his then and all him, solely happening inju- Company Incorporated, had mind ers for all have board the Mission San Francisco ries illnesses which he and/or solely employ a claim based received while said de- thereon, (e) no The release made men- fendant whether then known unknown. any injury any specifically tion of assault due to release referred occurring any whatever SS of defend- Mission San Francisco. The said re- vessels,6 notably ant’s left blank the lease was for the executed space printed $700.00, release form ten- sum of with advice coun- —in knowledge dered words “in- sel and defendant —after the with full of its con- *5 juries tents; signed attorneys and follows.” and his illnesses as a cer- tificate, Kelcey witnesses, that under- That the release constituted de everything. stood that it was a release of might necessary fense conclusion if Plaintiff claims that at time he exe- plaintiff, issue, on this had the burden general cuted the release he did not re- proof. of But the crucial factor here member the assault on the SS Toma- by is that a release a seaman to his em hawk.” ployer markedly differs from a release suggested that, specifically by It is ordinary employer.7 in re- an worker to his ferring Supreme in this release to “Mission Court, The in Garrett v. Moore Francisco,” parties Co., San Inc., 239, 247, made a mis- McCormack they actually take and that intended to 63 S.Ct. 87 L.Ed. has refer that, to the “Tomahawk.” Were that said because seamen are “wards of so, obliged admiralty,” we would be to hold that subject their releases “are plaintiff’s But, release barred scrutiny. claim. con- to careful ‘One who claims sidering following, signed rights no is means away that a seaman has his clear that there was such a mistake: what law due him in law must be (a) Plaintiff prepared had served on the Mission to take the burden sustain of Francisco, serving (b) ing fairly While the release as made with and vessel, January 15, 1949, fully comprehended by some the seaman.’ gave release, nine months before he States, Cir., Harmon v. United 5 59 F.2d plaintiff (as judge expressly found) 372, hold, therefore, 373. We seizure, had ap- suffered “a upon the outward burden is up one who sets a sea pearance of which resembled a convul- man’s release to show that it was execut sion, as a result freely, deception of which he fell and ed coercion, without or (c) bruised the side of his face.” The and that it was made the seaman with judge found, prior “Both to and understanding since rights. his full of April 21, 1948, adequacy assault plain- of the consideration and the na of experienced lapses tiff has memory legal of of ture the medical and advice avail of varying lengths.” (d) very In this ac- able to the seaman at the time of following 5. respect, The release included the state- 6. In this the release is unlike plaintiff’s handwriting: plaintiff’s original complaint, ment “I know filed in Feb- persons ruary specifically doctors and other alleged make mis- an takes, taking and vessel, I am the risk wrong but named the assault they may wrong. what have told me is Pennsylvania case, my loss, If that should be the it is R. Callen 332 U.S. and cannot back of out 68 S.Ct. L.Ed. settlement.” appraisal he to an when the release are relevant tensive than gave Distinguishing understanding.” (Emphasis our add the release. opinion Oil ed.) earlier v. Moore-McCor in Bonici v. Standard See also Hume Here, Co., Cir., Cir., said: Lines, we mack 103 F.2d Sitchon, contexts, not, the “Bonici did other allocation of like advantage independent proof policy advice burden of considera rests lawyer, policy physician his own tions. The vis-á-vis a seaman’s are or are not mentioned in the release. know from all other tioned nesses or disabilities that I do not now never hereafter ing I also know that a right vice hereafter may said: in the future have other or signing I am Such; gard the release. den. perienced release has been Sitchon *6 has held' essential to sustain the release. plaintiff when he served on some vessel is'üécessfúlly hawk; otherwise defendant could not and if Defendánt did not 113 F.2d owned sion San vised in October least, some assault which had defendant had release The facts thing from the turn of his legal taking when or claim of, Doubtless, him, “I know that in Supreme above but also v. Accordingly, of this injuries including which covered “each and 830, Francisco or out tridl American defendant other than the Mis lawyers have, advice as the knew plaintiff lawyers, maintain that the risk that I particular to be worse than here are. which now occurrences, the burden paper”, Court. because on that I do of— happened serving " who at that time ad emphatically Export Lines, Cir., discharge am executed the release There, remembered— I the seaman (a) know of on the facts concluded to disre (b) occurrence men unlike those in taking those account, and which also given by Supreme some on the Toma whether have, may some happened with the ad injuries, those result may any before the this release may they that bur companying injury resulting the risk showing declared now or mishap matter 757, 760, 769, signed 2 or, Court every seem events have shown to have been unfound here, they ex ill to fairest manner. at evidence will here ployees future That is a court. Sometimes suaded this, ruling road even said, claims out of court. suggestion, [*] own no Pennsylvania cal ing nature judge ment relied on two examinations at was a bar to the naturally does not bear entered Marine ployer. acted It « all separate out always in information and conducted attorney lawyer, contemplated in the absence of fraud on the Company for minor is when, *» by preventing present who, will Hospital into a there employer, there was * * * suggested the advice of one extent, have been glib prediction an the accident. The settlement such the writer of this to their concurring, in Ricketts v. prejudice examination. court before the future be' forced to sue' employee, settlement based intended to R. warns disregarded and future “The settlement personal injury and the defendant prophecies settle with their em slightest Co., Cir., * * * judges Here the a mistake as then none, below seems Answering settlement gravé Pennsylvania us making settlement of partial 2 plaintiff's injuries, seamen advised employers based damages taint disadvantage, fairly in a case like frighten Each later which seaman if to his who release ac- foregoing, on identi- been.per-: a similar- a release of fraud upon and the opinion arrived in the release claims. in the action. by the claims settle- would party made their, Rail aris- have; part will em- his' no' held now.” We that this So, Choate, to me release ed. Pollock v. Farmers’ subsequent Company, his suit based on 1895, barred the Loan & Trust 157 U.S. injuries 429, 532, 673, were far 15 759, that his more ex- S.Ct. 39 fact L.Ed.
547
general
discharged
terms,
for
claims
majority
all
seemingly
alarmed the
But,
injuries
even
Tomahawk.
in-
federal
that a
forecast
Court
seaman, the
in the case of one not a
in a communist
tax would usher
come
general
in a re
regime
country.
well to usual rule is that
words
And it is
in this
disregarded
fol
Abinger’s
prediction
when
lease aré to be
dire
recall Lord
relating
preceded by
lowed or
words
the fellow-
when in 1837 he enunciated
g.,
specific
See,
Employers
Haskell
Lia-
claims.
e.
v.
servant rule which
bility
619,
Miller,
App.Div.
221
222 N.Y.S.
wiped
master
‘If the
out:
Act has
675;
618, 159
action,
N.E.
the affirmed 246 N.Y.
be liable to the servant in
principle
Quick’s Will,
263
liability
In
Misc.
found to
re
147
will be
*
* *
therein;
alarming
152 and
cited
carry
N.Y.S.
cases
us to an
extent.
Engle,
say
337 Pa.
inconvenience,
ab- Lancaster Trust Co. v.
not to
The
surdity
Ry.
381;
10
consequences,
A.2d
Union Pacific
afford
Co.
of these
Cir.,
365, 367,
applica-
Artist,
argument against
23
v.
60 F.
sufficient
approval
present
L.R.A.
in Texas
principle
case.
cited with
to the
tion of this
* * *
Ry.
Dashiell,
fact,
& Pacific
action to
Co.
In
allow this
encouragement
1150;
25 S.Ct.
49 L.Ed.
prevail
United
would be an
Express
Ball, App.D.C.
diligence
cau- States
Co. v.
and'
servant to omit
269;
Wendrick,
Ill.App.
dfity
exer-
Gelman v.
bound to
which he is
True,
masters, to-pro-
53 N.E.2d
in Vines v.
of his
cise on the behalf
Advertising Co., Cir.,
against
of others General Outdoor
misconduct
him
tect
diligence
applied
him,
F.2d
where we
and 171
and which
who serve
master,
rule,
they
in
caution,
protect
usual
we said that
it is not
against any
applies
security
exorable. But that rule
much better
are a
seaman,
especially
injury
the case
sustain
the servant
engaged
negligence
under the facts here.
of others
against
any
master,
recourse
same
than
Affirmed.
damages
possibly
could
his master
Certainly,
prophecy went
afford.’
Judge
HAND,
(dissenting
L.
Circuit
York,
astray.
to re-
rule as
In New
part).
-
*7
precisely
to which
that
leases is
-
agree
my
say except
I
with all
brothers
objects; yet
Pennsylvania
here
Railroad
Two, questions
as to the release.
about
guess
of set-
that thousands
to
venture
(1)
interpreta-;
it arise:
As a
matter
yearly
York
in New
are made
tlements
tion did cover the assault on the Toma?
that, on
by employers
the risk
who take
so,
(2)
If
hawk?
should the
showing,
will be
proper
the releases
repudiate
to
allowed
it? The doctrine
* *
*
disregarded.
judicially
We
great
pressed
lengths
has indeed been
to
shipowners
cases,
know,
that
from the
general
that
words of
will
release
be dis-
for rela-
made settlements
often
have
tively
regarded
they accompany
when
the re-
sums, procuring
releases
small
specified
lease of a
claim.
IYet
do not
advised
who were not
from seamen
that
it has ever
understand
been held
lawyers, despite
decisions
own
their
obligee
general
that an
cannot make a
settlements,
proper
on a
show-
that such
covering every
may have,
release
claim he
ignored
ing,
the courts. That
will be
unknown,
coupled
known or
if it is
with
willing
employers
goes
are
that
to show
particular
release
claim. I can-
settlements
the face
such
make
to
imagine any
ground
not
rational
for so
they may be set aside.”
risk that
holding; and the courts have said over
again
question
and over
that the
release
the instant case
is al-
ways
“intent,”
equivo-
one of
owner of
as
its “sev
however
defendant
ran to
cally
may
particular
vessels,”
that
be used.
the Mis
It would
be im-
eral
argued
submit,
possible, I
explicitly
It is
that
more
Francisco.
to
sion
vessels,”
purpose
wipe
“to
clean,”
and the other state
the slate
“several
words
Joseph Archer,
Pearl ARCHER and
put
parties
it—than
themselves
—as the
Appellants,
language
stated a
has
this release
Thus,
just
I should
purpose to do
that.
way
America, Appellee.
proper
UNITED
STATES
have no doubt about
ap-
release,
if it
even
construe this
No.
supposed
peared that the
Appeals
United States Court of
arising
his fall
out of
he had had a claim
Ninth Circuit.
How-
San Francisco.
on the Mission
Oct.
suggest,
my
ever, although,
brothers
of Certiorari
Writ
Denied
lawyers
“had in
he and his
Feb.
solely
happéning
on board
mind
See
verbal prop- protection not see that erly granted; seamen was not accorded to laid abide the test I am content to Moore-McCormack
down Garrett v. 63 S.Ct. our own Indeed I L.Ed. 239. think Export v. American in Sitchon decision Lines, Cir., con- should *8 absolutely though trol, facts were holding are If what we on all fours. get every law, is free to what seaman it, gamble get, keep on wheth- can persuade can or the er he later forgot
jury the existence only in fact have. claim he ever did escape own limitations No one can my my difference with brothers insensibility eco- from an
come seamen, subjection of and from nomic enough allowance for to make failure credulity; but, am, confined as their me that to allow this release it seems repudiated is not unwarranted law, unsanctioned morals. but