Alexandervich v. Gallagher Bros. Sand & Gravel Corp.

KAUFMAN, Circuit Judge.

This is a consolidated appeal by (1) Gallagher Brothers Sand & Gravel Corporation, defendant in a civil action, from a judgment awarding Joseph Alexandervich, plaintiff-below, $94,178.00 for personal injuries, and (2) by Motor Tug Consultor, Inc., respondent and claimant of the tugboat Consultor II, and Gallagher Brothers Sand & Gravel Corporation as impleaded-respondent, from a final decree in admiralty awarding Alexandervich, libelant-below, the same amount for the same injuries.

The two cases were tried together on the issue of damages by Judge Conger without a jury, defendant-respondents-below having admitted liability. Appellants ask this Court to set aside the judgment and decree on the grounds that, (a) the trial judge committed prejudicial error by admitting evidence of aggravation of a pre-existing injury when no such claim was framed by the pleadings, (b) the damages awarded by the court were based on clearly erroneous findings of fact, and were otherwise improperly calculated under controlling principles of law, and (c) the amount of damages awarded was excessive. Except for certain minor modifications in the computation of damages, we find no reason to disturb the action taken below, and therefore affirm both the judgment and decree as so modified.

The facts, as found by the trial judge, are briefly this: On April 28, 1958 Alexandervich was working as a cook in the galley of a tugboat owned by his employer Gallagher Brothers, the “Peter C. Gallagher,” when the boat collided with the tugboat “Consultor II” owned by Motor Tug Consultor, Inc. As a result of this accident, Alexandervich was thrown to the concrete deck of the tug, landed on his buttocks causing him to suffer back pains, and also sustained burns in the area of the left inner aspect of the left ankle by scalding. He was taken by ambulance to the United States Public Health Hospital at Stapleton, Staten Island, where he was an in-patient for ten days. He subsequently was given extended treatment .as an out-patient, and on August 25, 1959 he received a certificate from the hosptial stating that he was “not fit for sea duty permanently.” Alexandervich did not engage in any regular work from the date of the accident until late in I960.¹ At that time, after having taken rehabilitation courses for eight months, he was able to gain employment in the jewelry business in which he earned $40.00 per week.

I.

The first claim of error is predicated on the admission by the trial judge of evidence concerning a degenerative disc disease alleged to have been contracted by Alexandervich approximately two years before the accident involved in these cases. This evidence was introduced by Alexandervich on direct examination of a Dr. Friedman (Tr. p. 91) in order to make out a claim of aggravation of this pre-existing condition as an element of damages. It was taken up again by the court during the cross-examination of a Dr. Kahle (Tr. p. 158). It is true that this claim of aggravation was not alleged in the complaint or the libel, and that it is not indicated in Alexandervich’s answers to appellant Motor Tug Consultor’s interrogatories. Nevertheless, we find that there has been no showing of prejudice to appellants in the admission of this evidence which would warrant a finding of reversible error. Fidelity & Deposit Co. of Md. v. Krout, 157 F.2d 912, 913 (2d Cir. 1946). Assuming that there was surprise,² appellants’ remedy was to seek an adjournment of the trial in order to prepare their defense on this issue. This they failed to do and they also refused to accept an offer of adjournment actually made by the court (Tr. p. 163). This was not a jury trial, and it is clear from the record that the experienced and considerate trial judge was prepared to give counsel as much time as he reasonably needed. Furthermore, the record plainly demonstrates that appellants attempted to utilize the testimony concerning the preexisting condition to strengthen their own defense on the issue of causation. They asserted that the substantial damage to the back in fact resulted from the earlier condition (Tr. pp. 119-122, 247-256). Under all these circumstances, we believe appellants cannot now be heard to complain of surprise and prejudicial error.

Related to this is appellants’ claim that the trial court committed clear error in finding a 60% loss of earning capacity. We find that this contention is without merit. As pointed out in the trial judge’s opinion and findings, appellants’ medical expert, Dr. Balensweig, did not dispute that Alexandervich had incurred a permanent disability resulting, at least in part, from a compression fracture of the second lumbar vertebra of the spine; and there is no contention that this fracture was not sustained in the accident of April 28, 1958. Dr. Balensweig also agreed that Alexandervich has a residual effect from the fracture which will prevent him from doing any work which requires heavy lifting, and that this is true wholly apart from the degenerative disc disease. While Dr. Balensweig did take issue with appellee’s claim of aggravation of the disc condition itself, the doctor’s opinion was contrary to that of Alexandervich’s four experts and examining physicians. Certainly Dr. Balensweig’s testimony on this issue was not conclusive, and merely raised an issue to be determined by the trier of fact.

Furthermore, both appellee and Dr. Kahle testified that the pre-existing condition was quiescent until the accident; that the Marine Hospital gave Alexandervich “Fit for Duty” slips after his treatment in 1956, and that appellee had in fact worked without apparent difficulty until 1958 when the accident occurred. It is undisputed that the symptoms relative to the disc condition reappeared six or seven months after the accident and before the fracture healed. In the light of the entire record before Judge Conger it cannot be said that he committed clear error, and it is only for such error that this Court will reverse. Rule 52(a), Fed.R.Civ.P. 28 U.S.C.A., McAllister v. U. S., 348 U.S. 19, 20, 75 S.Ct. 6, 99 L.Ed. 20 (1954).

Although no medical expert estimated the exact percentage of the physical disability, or the loss of earning capacity which the physical disability caused, the Court, as trier of facts, could reach its own conclusions concerning these matters on the basis of the ample testimony introduced on this subject. Lukmanis v. United States, 208 F.2d 260 (2d Cir., 1953), Smith v. Jugosalvenska Linijska Plovidea, 278 F.2d 176, 179 (4th Cir., 1960). As we have already noted, even Dr. Balensweig admitted that Alexandervich could no longer undertake heavy work. This was buttressed by the opinion of appellee’s expert, Dr. Mauer, who testified that Alexandervich could only engage in sedentary work which did not require either the use of his back or extended periods of standing on his feet. There is no method of calculating precisely how much of a man’s earning capacity will be impaired in the distant future. This is a disputed issue of fact. On review it is enough that this Court finds substantial evidence to support a reasonable estimate. Carroll v. United States, 133 F.2d 690, 694 (2d Cir., 1943). Judge Conger carefully considered Alexandervich’s work capacity. Indeed, he even found that Alexandervich could earn almost double the amount he was then receiving by future employment in the jewelry trade.

II.

Appellants’ principal objection to the calculation of the damages stems from the amount awarded for loss of future earnings. The trial court’s opinion does not specify the total amount Alexandervich would probably earn in each of the remaining thirteen years of his work expectancy. However, it was found that appellee lost 60% of his earning capacity, and that this amounted to $6,000.00 per year. This we interpret to mean that Alexandervich must have been able to average $10,000.00 in each of the remain-mg years. The question is whether there is substantial evidence in the record to justify this. We find there is. The evidence shows that Alexandervich would have earned $30.42 per day as of February 1, 1961 five days per week, plus time and one-half overtime for weekends, which according to appellee’s undisputed testimony were frequently worked. This amounts to $7,909.20, to which must be added $750.00 as the value of food provided on the tug. When the likelihood of substantial overtime pay is considered, and it is noted that as of February 1, 1962, Alexandervich would have been entitled to an additional $300.00 in wages, and that, in the light of the history of recurrent wage increases, he would very likely receive additional increases in the following eleven years, it is apparent that a finding that he would have averaged $10,000.00 per year in the remaining period of his work expectancy is supported by substantial evidence, and is not excessive. In any event, we should not merely substitute our judgment for that of the trial judge. See Carroll v. United States, supra.

III.

In calculating the food and lodging or “found” recovery, on the other hand, the trial court did err. Alexandervich was injured on April 28, 1958 and spent the following ten days in the Public Health Service Hospital. Since an award for “found” can be made only when actual food and lodging expenses are incurred, Conte v. Flota Mercante Del Estado, 277 F.2d 664, 669-70 (2d Cir., 1960), and no expense was incurred during the period of hospitalization a $53.33 deduction for that period must be made on the basis of the daily “found” rate used by the lower court.³

During the period May 9, 1958 through August 25, 1959, Alexandervich was entitled to “found,” or to maintenance and cure at the contract rate of $8.00.⁴ But as the trial court properly held, he could not have a double recovery for “found” and maintenance and cure. Although an improper rate was used below for “found,” as will be shown, the actual amount awarded for this period is correct because Alexandervieh did have a right to maintenance and cure computed at that same rate.

However, from August 26, 1959 through the date of judgment, Alexandervich was entitled only to “found.” The trial court calculated this at $8.00 per day, but this amount cannot be substantiated. As the Conte case, supra, makes clear, Alexandervieh is entitled only to out-of-pocket expenses incurred for food and lodging which would not have been borne if he were on the tug. For people having homes of their own, as most do, an employer’s provision of lodging when the employee is forced to sleep away from home for the employer’s convenience, is not an added element of value as against a job paying the same wage and not requiring such absence. Since Alexandervieh maintained a home on Staten Island for his family, he had that lodging expense even when he was aboard the tug. Therefore, he is not entitled to so much of the “found” award as is based upon the cost of his lodging at home. He is entitled, however, to a portion of “found” for the cost of his food. There was no evidence to indicate the actual cost of this item, but there was evidence from which the trial judge was entitled to estimate that cost. The union contract required the employer to provide “grub money” valued at $2.07 per day for each crew member’s meals while he was aboard the tug. Although this probably represents a wholesale cost, and appellee would have to pay more for his food when purchasing it himself at retail prices, we think that in the absence of evidence of actual costs, the estimate of his food expense should be based on this contract figure. Since Alexandervieh was on board the tug only two out of every three weeks, the portion of “found” for this period to which he was entitled amounts to $927.36 (448 days X $2.07), and not to $3,584.00, the amount awarded below (448 days X $8.00). Deducting the difference ($2,-656.64) and the $53.33 for the ten days in 1958 when appellee was in the hospital ($2,709.97), from the total amount of “found” awarded below, Alexandervich’s judgment, including the amount assessed for costs, is reduced to $91,468.03.

Judge Clark forcefully urges in his dissent that the plaintiff is entitled to compensation for lodging as an element of “found,” even though it be assumed he maintained a home for his family while he was aboard the tug, and therefore did not incur any additional lodging expense as a result of the accident. However, we do not believe that all the authorities cited in the dissent in support of this contention are apposite. It is noted in an extensive discussion of the subject in 2 Harper & James, The Law of Torts, § 25.22 (1956) that a “double recovery” of this nature has been awarded only in situations where a third person, or the defendant under some statutory scheme, as in United States v. Price, 4 Cir., 288 F.2d 448 (1961), has made payments to the plaintiff to defray expenses caused by the accident. These payments by their very nature were not intended to substitute for tort damages. By an analysis of the nature of the systems under which these payments were made, it was held that they were intended to benefit the plaintiff regardless of any tort recovery. Thus, for example in the Price case, supra, the court pointed out that the retirement benefits received by the plaintiff were “not designed to compensate [him] for particular injuries suffered,” but were “entirely separate from the government’s acknowledged statutory duty feasor * * *” (pp. 450-51). recovery” has also been allowed in situations in which plaintiff’s expenditures have been partly defrayed by voluntary gifts from third persons upon the assumption that the donor intended the gift to be above and beyond tort recovery. But, in these cases, the expenses defrayed were caused, by the accident; the question was then whether these additional payments should be considered in limitation on the defendant’s admitted duty to compensate for them. as tort-“Double

It is clear that neither of these situations is involved here. The more difficult problems faced by the courts in the cases cited in the able dissent are simply not present in this one. In the instant case there were no independent payments made by anyone to the plaintiff. There is therefore no need to consider the effects of such payments. What we have here is a much simpler problem: the ordinary problem of determining the extent of plaintiff’s losses in order to award proper tort damages. Of course, it is not disputed that plaintiff must actually sustain these losses in order to recover. Anything else would be a “windfall.” See 2 Harper & James, supra, at p. 1354. See also Harris v. Standard Accident & Ins. Co., No. 26892, 2d Cir., Dec. 6, 1961.⁵ 297 F.2d 627. Here, the plaintiff’s expenses in providing a home for his family are unrelated to the accident; if his employment had continued he would have borne them nevertheless.

The dissent also argues that since we accept the $8.00 per day maintenance and cure allowance without regard to actual expenses incurred we should not apply a different standard in computing “found.” However, it must be noted that generally a seaman is only entitled to actual expenses incurred for maintenance and cure. Johnson v. United States, 333 U.S. 46, 50, 68 S.Ct. 391, 92 L.Ed. 468 (1948); Field v. Waterman S.S. Corp.,104 F.2d 849, 851 (5th Cir., 1939).

In allowing $8.00 per day in situations such as this, the courts are merely taking cognizance of the contract entered into between the employee’s union and his employer. See Bartholomew v. Universe Tankships, Inc., supra, 279 F.2d at p. 914.

One final point remains. Appellants claim that the total judgment is excessive. Since it has already been demonstrated that the principal portion of that award was to compensate Alexandervich for lost earning capacity, and that this amount was justified, there remains for consideration only the $10,000.00 awarded for pain and suffering. There is no way in which this element of damages can ever be fixed with anything even approaching certainty. The trial judge who heard the evidence and saw Alexandervich thought that an award of $10,000.00 was appropriate. Since Alexandervich was hospitalized and wore a body cast for months after he left the hospital, it is reasonable to conclude that he suffered considerably. Under the circumstances, “we cannot say that, upon an issue so difficult of quantitive determination, [the award] was so plainly out of measure as to be ‘clearly erroneous,’ ” Carroll v. United States, supra, 133 F.2d at p. 694, compare Dagnello v. Long Island R. Co., 289 F.2d 797 (2d Cir., 1961), or that we have a definite and firm conviction that a mistake has been committed. United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948).

Affirmed as modified. Costs on appeal to be paid by appellants.

1 . The record shows that he did try to work on a tug for three days in July, 1959, but, according to Alexandervieh’s testimony, he found it impossible to continue because of back pain.

2 . Appellants were well aware that Alexandervich had been operated upon at the Public Health Service Hospital in 1956. This was specifically stated in appellee’s answer to respondent’s interrogatory, question #9.

3 . The lower court computed “found” at $8.00 per day, for two-thirds of the period in which he was out of work from May 1, 1958 to the date of judgment. The fraction is applied because Alexandervich was aboard the tug only two out of every three weeks.

4 . See Bartholomew v. Universe Tankships, Inc., 279 F.2d 911, 914 (2d Cir. 1960). Appellants had the right to show that' the prearranged figure was incorrect hut, in the absence of such a showing the figures should stand. See Reardon v. California Tanker Co., 260 F.2d 369, 377 (2d Cir.1958), cert. denied, 359 U.S. 926, 79 S.Ct. 609. 3 L.Ed.2d 628 (1959) (concurring opinion by Judge Waterman on rehearing in hanc).

5 . The example cited in the dissent of a single man being compensated in a greater sum than a inarried man, under the law as applied by us, does not pose any problem. If a single man suffers greater damages than a married man in a particular case, there is no reason why he should not be so compensated.