Derek Lamb v. Globe Seaways, Inc., and Maritime Overseas Corporation , 516 F.2d 1352 ( 1975 )

MEDINA, Circuit Judge:

In this action by a seaman under the Jones Act, 46 U.S.C., Sections 688 et seq., to recover damages for an injury to his back, alleged to have been sustained aboard the Overseas Anchorage when his bunk collapsed due to a defective right front leg on December 3, 1972 at Albany, New York, the jury returned a general verdict for the defendants, shipowners, and the seaman appeals.

Following his usual practice in admiralty and Jones Act cases involving seamen Judge MacMahon conducted a pretrial hearing on July 23, 1973 and instructed counsel to take Lamb’s deposition and also the depositions of any other witnesses who might be aboard ship on the high seas at the time the case was reached for trial. Counsel for the seaman did nothing about this but counsel for the shipowners took Lamb’s deposition on August 14, 1973. In response to questions by counsel for the shipowners Lamb testified to his version of how he was injured and this testimony if believed furnished a proper basis for the submission of the case to the jury on the two issues of negligence and unseaworthiness. Prior to the commencement of the trial on October 10, 1973, counsel for Lamb made a motion for a continuance of several months because Lamb was at sea.

We are all agreed that the denial of the motion for a continuance was not an abuse of the trial judge’s discretion. All the parties knew of the possibility that Lamb might be absent and the trial judge had provided an alternative method of perpetuating Lamb’s testimony for use at the trial. This Circuit has consistently upheld the practice of denying trial continuances in cases in which a party or a witness was absent from the trial. See, Davis v. United Fruit Company, 402 F.2d 328 (1968), cert. denied, 393 U.S. 1085, 89 S.Ct. 869, 21 L.Ed.2d 777 (1969). See, also, Michelsen v. Moore-McCormack Lines, Inc., 429 F.2d 394 (1970); Sacharow v. Vogel, 428 F.2d 1389 (1970); Winston v. Prudential Lines, Inc., 415 F.2d 619 (1969), cert. denied, 397 U.S. 918, 90 S.Ct. 926, 25 L.Ed.2d 99 (1970); Vitarelle v. Long Island Rail Road Company, 415 F.2d 302 (1969). This line of cases is applicable a fortiori to situations arising since the establishment of the new assignment system in the Southern District of New York on July 1, 1972, by which substantial numbers of particular cases are assigned to each of the trial judges and each judge is given what virtually amounts to complete control of his calendar in these cases. He passes upon all the motions, he supervises all the discovery and pre-trial proceedings and he decides when the cases are to be tried.

Nor do we find any miscarriage of justice in this case or the slightest hint or scintilla of evidence that the proceedings were expedited “at the expense of justice.” On the contrary, as stated by Judge MacMahon in his memorandum denying the motion for post-trial relief: “Plainly the jury resolved the issues of fact against the plaintiff on unassailable evidence.”

To begin with, Lamb’s version of the occurrence is inherently improbable. If his bunk collapsed it would simply fall to the deck with Lamb under the bedclothes. Instead, he says he was “thrown out on the deck.” He “landed with a thud,” had a bump on his head and was perhaps for a time unconscious. The medical report at the Albany hospital reports his pulse at 120, far above normal, “denies alcohol for two months” and shakiness “not due to back injury.” Even Lamb’s expert witness Dr. Sherman, who had not previously been informed of Lamb’s problems with alcohol, admitted that these statements in the medical report were significant and that, as the violence and thrashing about that often accompanied delirium tremens and withdrawal symptoms within 4 or 5 days after the last drink of alcohol, made it important in evaluating Lamb’s condition in the Albany hospital “to consider this prior history of alcoholism.” So the objection to this testimony was properly overruled and hospital record after hospital record was produced showing heavy drinking and chronic alcoholism since at least 1962, and many attacks of delirium tremens.

The incident aboard the Overseas Anchorage occurred on December 3, 1972, and, a little over one month later, as an outpatient at the Marine Hospital in Staten Island, New York, Lamb arrived at the clinic ready for “treatment” on January 9, 1973, “quite inebriated” and “tremulous.”

Not only does the record reveal Lamb as a chronic alcoholic, he is also revealed as a chronic falsifier of the evidence. Whenever he thought he could get away with it he categorically denied matters unfavorable to his side of the case, and these denials were proved by documentary evidence to be false. He denied that he had suffered any prior back injury and he said the same thing to his expert medical witness Dr. Sherman, but the New Orleans hospital records of August 31, 1966 showed that he had been given a terrific beating by several men, showed extensive superficial abrasions on his back and X-rays were taken. This injury was to the part of the back above the sacrum and below the lumbosacral joint. He denied that he was ever discharged from a vessel for drunkenness but the documentary evidence contradicted him. There was much more of this.

It seems to be thought that there should be a new trial because the trial judge did not back up his direction that Lamb’s deposition be taken for use on the trial if he was absent at sea by some general admonition to counsel for defendants not to take advantage of this. But the subject was not even mentioned at the trial or in the briefs or on the oral argument of the appeal and we think what was said by Judge MacMahon when the subject of Lamb’s absence was mentioned in the opening of defense counsel to the jury was a quite sufficient indication that counsel was not to discuss the reasons Lamb went to sea and did not testify. All counsel had done was to mention the fact that Lamb left the Port of New York on October 3 and that he should have been made aware of the fact that his case was coming up for trial soon. Judge MacMahon was on the alert. It was he who had directed the taking of the deposition and he was not going to permit counsel to put the blame on Lamb or anyone else. So, he said:

The Court: I’m sorry. I hesitate to interrupt you, but I don’t want you to misrepresent things. We hold pretrial conferences in these cases and the pretrial conference in this ease was held on July 23, 1973, last summer. At that time, of course, the Court was fully aware that the plaintiff in this action, Mr. Lamb, was a seaman. This Court has many cases on trial. It cannot set definite times for trials in civil cases, so counsel were instructed at that time to take the deposition of Mr. Lamb to protect against the fact that he might be out to sea when this trial was reached.

They were told that the case would proceed to trial whether or not Mr. Lamb was at sea, and if there were any other witnesses who could not be here to be sure to take their deposition.

That’s the situation.

You may proceed.

That the reading of the deposition and the failure of Lamb to testify in open court played no part in the jury’s deliberations is, to some extent, indicated by the fact that the jury asked for the photographs of the bunk, the Albany Memorial Hospital records and the Public Health Hospital reports of the Marine Hospital in Staten Island, and they reached their verdict within an hour thereafter.

Affirmed.