George G. HORTON, Plaintiff-Appellee, v. MOORE-McCORMACK LINES, INC., Defendant and Third-Party Plaintiff-Appellant, v. Juan RIVERA, Third-Party Defendant-Appellee.
No. 167, Docket 28305
United States Court of Appeals Second Circuit
Decided Jan. 7, 1964
Argued Nov. 12, 1963.
Appellant argues vigorously that the case of Consolidated Gas & Equipment Co. v. Carver, 10 Cir., 257 F.2d 111, is controlling. There, a juror, who later became foreman, remained silent when a question was asked on voir dire as to whether any juror had ever sued for personal injuries, or been the defendant in such a suit. Actually the juror was plaintiff in a then pending suit involving similar injuries. On appeal it was held that the possibility that the juror might be extraneously influenced by his own injury and suit rendered him incompetent, and that the effect of his silence was to mislead and deceive court and litigants. The defendant was held entitled to relief from the adverse verdict and judgment.
Here, the trial court carefully examined and distinguished the Consolidated Gas & Equipment Company case, supra, on the basis of the difference in the two factual situations. We think he did so correctly, with scrupulous regard for the plaintiffs’ rights. It was fair for the District Court to conclude, as it did, that Hargrave‘s failure to disclose that he had received a thrеat of suit, was innocent and inadvertent. Also, viewed narrowly, the questions asked were not so framed as to cover the exact facts present in the juror‘s understanding, so as to require an affirmative answer. The trial judge concluded, and we agree, that no harmful consequence to the рlaintiffs was shown.
The appellants failed in the hearing before the District Court to show that the verdict was or could have been prejudiced by juror Hargrave‘s innocent failure to recognize the claimed duty to disclose.
The appellants, likewise, fail here to demonstrate to us any prejudicial error committed by the District Court in permitting the adverse verdict to stand. The judgment is
Affirmed.
Joseph M. Cunningham, of Kirlin, Campbell & Keating, New York City, for defendant and third-party plaintiff-appellant.
Emanuel Friedman, New York City, for third-party defendant-appellee.
Befоre LUMBARD, Chief Judge and KAUFMAN and HAYS, Circuit Judges.
HAYS, Circuit Judge.
Defendant, Moore-McCormack Lines, appeals from a judgment of the district court entered upon the verdict of a jury which awarded plaintiff Horton $80,000 as damages for personal injuries and awarded Moore-McCormack $4,300 against the third party defendant Rivеra. Defendant contends that it is entitled to a new trial because of (1) insufficiency of the evidence to support a finding of unseaworthiness, (2) errors in the judge‘s charge and in the admission of certain evidence and (3) inconsistency of the verdict.
1. Unseaworthiness. The evidence which is the basis for plaintiff‘s recovery shows that plaintiff sustained his injuries when he was attacked and severely beaten by Rivera who was a member of the crew of the ship on which plaintiff was boatswain. The issue of Moore-McCormack‘s liability was submitted to the jury on two grounds, unseaworthiness and negligence and can be upheld оnly if sustainable under both theories. Moore-McCormack does not question the sufficiency of the evidence on the issue of negligence. It contends, however, that there was insufficient evidence of unseaworthiness to take the case to the jury.
* * * We believe that on the evidence the jury was justified in finding that Rivera was not “equal in disposition to the ordinary men in the calling.” Boudoin v. Lykes Bros. S.S. Co., 348 U.S. 336, 75 S.Ct. 382, 99 L.Ed. 354 (1955). That evidence shows that, before his attack on Horton, Rivera had made a vicious attack on another crew member, that his unprovoked attack on Horton was characterizеd by uncontrolled violence, that in attacking Horton he used a broken glass and a bottle and that in both of his attacks he bit his victims severely. Such evidence of “dangerous propensities and proclivities” is sufficient to support a jury finding of unseaworthiness. Boudoin v. Lykes Bros. S.S. Co., supra.
2. Judge‘s charge; admission of evidence. Moore-McCormack‘s principal сlaim of error with respect to the judge‘s charge is that the judge instructed the jury that it could award Moore-McCormack any part of Horton‘s recovery against Moore-McCormack that it (the jury) thought proper. It was undoubtedly this clearly erroneous instruction which led the jury to bring in an incon-
Moore-McCormack also complains of the judge‘s failure to give certain charges which it requested. We find that the substance of the requested charges was given insofar as thе requests were proper.
Moore-McCormack further cites as error the admission in evidence of a document from a hospital in which plaintiff was a patient. The document appears to be a record made in the regular course of business and therefore admissible undеr the Business Records Act (
3. Inconsistent verdict. The jury returned a verdict for Horton against Moore-McCormack for $80,000 and for Moore-McCormack against Rivera for $4,300.
The verdict is clearly inconsistent. The liability of Moore-McCormack to Horton is based wholly upon the injuries inflicted on Horton by Rivera. There is no evidence which would support any liability of Moore-McCormack which doеs not arise from Rivera‘s attack on Horton. The claim of unseaworthiness was grounded on Rivera‘s conduct. The owner‘s negligence was in hiring Rivera, in laxity of discipline which permitted this attack on Horton and in failing to halt that attack. The verdict against Rivera should have encompassed thе entire amount of damages awarded Horton against Moore-McCormack.
As concerns Moore-McCormack‘s claim against Rivera the issue submitted to the jury was Rivera‘s liability for breach of his “implied agreement * * * to perform his duties in a proper and seamanlike manner.” Not only is it truе that in this area of “contractual indemnity” there is no room for application of the theories of “active” or “passive,” “primary” or “secondary” negligence (Weyerhaeuser S.S. Co. v. Nacirema Operating Co., 355 U.S. 563, 569, 78 S.Ct. 438, 2 L.Ed.2d 491 (1958)), but the fact that Rivera‘s conduct, which resulted in Moore-McCormаck‘s liability to Horton, was wilful conduct, and not merely negligent conduct, makes this an even stronger case for recovery by Moore-McCormack of the entire amount of the damages awarded to Horton. (See Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 132-135, 76 S.Ct. 232, 100 L.Ed. 133.) Moreover it is clear that Rivera cannot be heard to argue that Moore-McCormack is liable because by its negligence it permitted him to attack and injure Horton. See Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., supra, 350 U.S. p. 134-135, 76 S.Ct. p. 238, 100 L.Ed. 133:
“Whatever may have been the respective obligations of the stevedoring contrаctor and of the shipowner to the injured longshoreman for proper stowage of the cargo, it is clear that, as between themselves, the contractor, as the warrantor of its own services, cannot use the shipowner‘s failure to discover and correct the contraсtor‘s own breach of warranty as a defense.”
There is no reason to believe that there was any error in the jury‘s verdict in the action of Horton against Moore-McCormack. The charge correctly set forth all the elements of the case on which the jury was required to pass in order to establish Moore-McCormack‘s liability to Horton. The error is in the verdict for Moore-McCormack against Rivera and is readily accounted for by the erroneous charge which instructed the jury that they could find for Moore-McCormack for a part only of the damages. The jury should hаve been instructed (as in fact they were at other points in the charge) that they must find for Moore-McCormack in the same amount which they
Since there is no error in the jury‘s verdict for Horton there is no justification for remanding for a new trial of the main action. Dunbar v. Henry Du Bois’ Sons Co., 275 F.2d 304 (2d Cir.1960). Moore-McCоrmack took no exception to Horton‘s verdict on grounds of inconsistency at the time it was rendered; this reinforces our view that it may not be set aside now.
It would be futile to remand for a new trial of the claim over of Moore-McCormack against Rivera, since Rivera is bound by the judgment in the main action. Caputo v. United States Lines Co., 311 F.2d 413 (2d Cir.), cert. denied, 374 U.S. 833, 83 S.Ct. 1871, 10 L.Ed.2d 1055 (1963); Knell v. Feltman, 85 U.S. App.D.C. 22, 174 F.2d 662, 665 (1949); 3 Moore, Fеderal Practice ¶1413 at 592-593 (2d ed. 1963). The district court would be required to direct the jury to find for Moore-McCormack in the amount of $80,000.
It is within our power as an appellate court to correct the verdict (Dextone Co. v. Building Trades Council, 60 F.2d 47 (2d Cir.1932); Farber v. Demino, 254 N.Y. 363, 173 N.E. 223 (1930); Zalewitz v. Greifinger, 14 A.D. 2d 750, 220 N.Y.S.2d 467 (1st Dept. 1961)), and it is our duty to do so. Caputo v. United States Lines Co., supra; see also Williams v. Pennsylvania R. Co., 313 F.2d 203 (2d Cir.1963).
We therefore affirm as to the mаin action and remand the third party action to the district court with the direction to enter judgment for Moore-McCormack against Rivera in the amount of $80,000.
No costs.
LUMBARD, Chief Judge (dissenting).
I dissent from the opinion of the majority and would affirm the judgment of the district court.
I have no quarrel with the majority‘s conclusion that if Horton was entitlеd to an $80,000 recovery against Moore-McCormack, the latter was concomitantly entitled to an equal recovery against Rivera. And the district judge should have so charged the jury and thereby avoided the inconsistency of a verdict of $80,000 against Moore-McCormack and a verdict оf only $4,300 in favor of Moore-McCormack against Rivera.
However, I can see no reason to permit Moore-McCormack now to raise an objection which it failed to raise on either of the two occasions at the trial on which it had the opportunity to do so. After Judge Dawson had stated in his supplemental charge that judgment could be had against Rivera for “anything that Moore-McCormack Lines has to pay Horton, or any part of it that you think proper,” counsel made no objection, apparently because he had not been listening very carеfully and because Judge Dawson suggested that the supplemental charge was essentially the same as the original charge. Again, when the jury returned a verdict for $80,000 in favor of Horton against Moore-McCormack, and for $4,300 in favor of Moore-McCormack against Rivera, counsel enjoyеd full opportunity to request that the jury reconsider its verdict then and there under a proper charge, directing them to enter identical verdicts for Horton and Moore-McCormack.
The time of the courts and juries is far too precious to permit one party to forgo an opрortunity to clarify a jury verdict which if undisturbed before the jury is dismissed may well necessitate a new trial. Here the trial consumed ten trial days. The whole tenor of the Rules of Civil Procedure militates in favor of
If we could be reasonably sure that under proper instructions the jury would have returned identical verdicts in the amount of $80,000, I should hesitate to dissent from the majority‘s disposition of the case. However, it seems entirely possible that if the jury had been given an opportunity to reconsider its verdict under a mandate to return identical verdicts it would have reached a somewhat different figure. The fact that they rеturned only a $4,300 verdict against Rivera raises considerable doubt that the verdicts would each have been $80,000 if they had known that the verdicts must be identical. As counsel for neither Horton nor Rivera could reasonably have been expected to raise an objection to the inconsistеncy of the verdict, and as Moore-McCormack slept on its rights, I can see no justification for disturbing the verdict now.
Finally, I would hold inadmissible the medical report signed by Dr. Claudio Ferreira and sent from St. Joseph Hospital in Lourenco Marques, a seaport in the southern part of Mozambique, Africa. The record before us does not show that it was a hospital record made in the regular course of business and therefore admissible under the Business Records Act. The note suffers from all the inadequacies of hearsay testimony unmitigated by the reliability which such a foundation might provide. Nonethеless, while it was error to receive the exhibit, in light of the extensive medical testimony offered and the comparatively limited use made of the note, I believe that the admission of the note constituted no more than harmless error, both the fact and the nature of Horton‘s injuries at the time being essentially undisputed.
Accordingly, I would affirm the judgment of the district court which awarded Horton $80,000 against Moore-McCormack and Moore-McCormack $4,300 against Rivera.