177 F.2d 342 | 2d Cir. | 1949
1. At the trial, the parties stipulated that Murphy, when he “entered the employ of the defendant aboard this vessel, the S.S. Sultana, was suffering from tuberculosis.”
2. The trial judge, without objection by the defendant, submitted to the jury this special interrogatory: “Was the plaintiff’s decedent suffering with an active advanced case of pulmonary tuberculosis when he entered the employ of the defendant on May 31, 1945 ?” Defendant argues that the trial judge erred in asking that question because, as previously noted, the parties had stipulated that at the time of thus entering defendant’s employ, Murphy “was suffering from tuberculosis.” But defendant, by failing to object, waived the error, if any, in asking the question.
4. Defendant in its answer set up as a defense that Murphy’s illness, if any, existed before his employment on defendant’s vessel, and that Murphy failed to disclose that fact when he then entered defendant’s employ. Some courts have recognized such a defense in suits for wages or for maintenance and cure.
Affirmed.
. The stipulation added: “However, it is the contention of the plaintiff that the decedent had no knowledge of such illness.”
. Rey v. Colonial Navigation Co., 2 Cir., 116 F.2d 580, differs in several respects. Among other things, in the Rey case there was but slight evidence to offset the uncontradicted testimony that the ventilation was about the same as in the average run of vessels of the same class, and the .dampness alone was not shown to be a vital factor in bringing on the disease.
. See, e.g., Tawada v. United States, 9 Cir., 162 F.2d 165 (C.A.9).
. That such an action is not based on a contractual relation, see Cannella v. Lykes Bros. S. Co., 2 Cir., 174 F.2d 794, 798, cert. den. Oct. 24, 1949; Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099.