Menefee v. W. R. Chamberlin Co.

183 F.2d 720, 1950 A.M.C. 1325, 1950 U.S. App. LEXIS 3003

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 21, 1950
• Docket: 12432
• Status: Published

Opinions

DENMAN, Chief Judge.

This is an appeal from a -decree awarding damages for an injury to appellant’s leg caused on January 23, 1947, while removing a large coiled hawser attached to the bulwark near the stern of the S.S. Robert Parrott. We held the vessel negligent in not stowing the hawser elsewhere in safety before sailing on a winter voyage from Puget Sound to the Orient over a northern sailing circuit when the usual winter storms -made it a threat to entanglement with the vessel’s propellers if the expected heavy seas should tear it loose. The anticipated weather was encountered, the uncontra.dicted testimony showing stormy days culminating in seas washing the deck at the time appellant was ordered to assist in removing the hawser. See Menefee v. W. R. Chamberlin Co., 9 Cir., 176 F.2d 828.

Appellant was badly battered against the ship’s structure and carried to his bunk, in ■which he remained for a week. The injuries were to the left leg and his back which had two heavy welts. That to the leg consisted in a crushing of the arteries causing internal bleeding which an Army doctor diagnosed as causing a poisoning throughout-his system. He was on crutches for some weeks and later did light work as an ordinary seaman on his watch but was excused from heavy work, such" as painting, deck washing and the handling of cargo.

The injury occurred on January 23, 1947, and he arrived back in the United States on August 3, 1947, when he left the sea. During all this time the left leg continued to swell, sometimes half again as large as his right, and his back continued to hurt him. He attempted work as a trackman on a railroad in October 1947 but lasted but six days because of the .swelling of the leg. If he walked for half a dozen blocks the swelling returned. It was at times accompanied by pain in the back. As late as July 1948 appellant attempted to engage in manual labor but was prevented from so doing because of the condition of his back. At the date of trial, August 17, 1948, appellant testified his leg was “fairly well’’ but his back still bothered him.

Appellant’s testimony is corroborated for six months after the injury by officers on the vessels upon which he sailed. He was cross-examined both as to his leg and back injuries and his testimony unbroken. Indeed, it seems to have been accepted, since no medical testimony was introduced by appellee. We recognize that such injuries to the leg and back cause great pain and suffering and find nothing irrational in appellant’s relying upon a statement of the Army doctor to him that the arterial injuries would have to cure themselves.

The district court awarded damages of but $750.00. It is apparent that the court could not have allowed any recovery for the pain and suffering and loss of earnings after October, 1947. We think this must have been because his disability thereafter was a combination leg and back injury and the back injury, which was proved without objection, was not alleged in the libel. This appears from the court’s single finding of fact as follows: “That by reason of the matters and things alleged in the first cause of action of his libel herein, libellant has been damaged in the sum of Seven Hundred Fifty Dollars ($750.00).” (Emphasis supplied.) The absence of an allegation in the libel concerning the back injury is one of the contentions of appellee’s brief.

In October, 1947, the pain and suffering had then continued for eight months. For the two months between appellant’s arrival on August third till some six days in October, appellee does not dispute that appellant’s wages, had he continued in his employment, would have been $159 per month and that the value of his board and lodging would have been $100 a month, that is to say, a total of $518 for the two months. It is inconceivable that the remaining $232 could be otherwise than for the- prior pain and suffering. Certainly here is nothing for the seven months’ period after October, 1947.

On this appeal appellant relies on Rule 15 (b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., providing: “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.”

Appellee does not oppose the contention that this is applicable to appeals here.

While Rule 15(b) was not made applicable in admiralty because of lack of authority in the rules committee over admiralty procedure, we have made it our rule here in the introduction to our Admiralty Rules preceding our Rule 33. It covers cases which are tried below in the manner here pursued. The back injury is not new matter but matter already considered and hence, not under our Rules 38 and 39.

In Tide Water Associated Oil Co. v. Richardson, 9 Cir., 169 F.2d 802, we stated at page 803: “Tidewater also contends that the libel did not sufficiently disclose the nature of Richardson’s duty of inspection of the vessel. We think it does. If it did not, on an admiralty appeal we would deem it amended to accord with the above proof.”

In Fyfe v. Pan-Atlantic S.S. Corp., 114 F.2d 72, 78, certiorari denied, 311 U.S. 711, 61 S.Ct. 319, 85 L.Ed. 462, the second circuit, in an admiralty appeal, applied the principles of Rule 15(a) stating: “Here libelants without doubt could have obtained permission to amend their libel after exceptions to it had been sustained. Admiralty Rule 23, 28 U.S.C.A. following section 723; Hughes v. Roosevelt, 2 Cir., 107 F.2d 901. They did not seek to amend as to BarberWilhelmsen, and allowed final judgment to go against them in favor of that respondent. They did, however, proceed to trial against the present respondent; at the trial the missing facts were proved, and a cause of action was made out. In this state of the record, an amendment of the pleadings to conform to the proof was, of course, permissible. The Roslyn, 2 Cir., 93 F.2d 278; cf. Rule 15(b), F.R.C.P., 28 U.S.C.A. following section 723c.”

• Since this is an' appeal in admiralty in which we have the power finally to dispose of the case, we think the loss of earnings and the pain and suffering of appellant after October, 1947, added to the damages awarded by the district court, amount to a total of $2500.

The decree is modified to state that amount, and as so modified stands affirmed.