Before MEDINA, FRIENDLY and SMITH, Circuit Judges.
Between April 6, and September 30, 1954, Julio Diniero, a Junior Third Assistant Engineer aboard the S.S.Pioneer Land, owned by United States Lines Company, claimed to have suffered such repeated strains in his back in the performance of his duties as to cause a ruptured disc with resultant pain and suffering, culminating some years later in a fusion operation and the removal of the disc. According to Diniero's testimony, there was a blow-down valve located below a floor plate and it was his duty to reduce leakage in the vessel's fresh water reserves by the operation of this valve. There was a slot in the floor plate and normally the valve could be opened or closed as circumstances required by using a reach rod. For a variety of reasons we need not describe in detail, but which include the absence of a reach rod and defects in the valve, Diniero said the only way he could operate the valve was by removing the deck plate, crouching down and moving the wheel of the valve by the use of a wrench. He claimed the injuries to his back were the effect of repeatedly operating the valve under these difficult conditions. The shipowner controverted all of these charges, and claimed there was nothing wrong with the valve, nor any necessity to remove the floor plate or to use a wrench. The eight day trial was devoted to the hearing of many witnesses and the reading of some depositions relative to the controverted issue of liability, and there was also considerable medical proof on the general subject of whether Diniero's trouble was due to a long continued condition caused by a degenerative disc disease and having no relation whatever to the operation of the blow-down valve, rather than to a ruptured disc.
At the close of the evidence the trial judge submitted the case to the jury in a wholly unexceptionable charge. In an endeavor to assist the jury in its deliberations, however, and pursuant to F.R. Civ.P., Rule 49(b), 28 U.S.C.A.*fn1 he submitted eight questions to be signed and returned as the verdict of the jury. The last two were in the form of a general verdict for plaintiff or defendant, questions 2 to 6 inclusive were in the common form relating to unseaworthiness, negligence, contributory negligence and proximate cause. The trouble was caused by question number 1, as follows:
"Did the plaintiff injure himself aboard the Pioneer Land because in operating the blow-down valve he had to remove the floor plates, then crouch and exert physical effort with a wrench and not his hand to stop it from leaking?
After some hours of deliberation and the receipt of a number of communications from the jury, the trial judge withdrew all the questions, told the jury to disregard them and bring in a general verdict in the usual form; and, after further deliberations the jury brought in a verdict in favor of the seaman for $46,150. The claim for maintenance and cure had been reserved for later determination by the court and, in an opinion (reported at 185 F.Supp. 818), in lieu of findings of fact and conclusions of law, the trial judge allowed Diniero $9,012. The shipowner appeals and the only question raised on the appeal is whether the trial judge committed error by the withdrawal of the questions originally submitted.
The position of the shipowner is that F.R.Civ.P., Rule 49(b) authorizes the submission of written interrogatories but does not authorize the withdrawal of such interrogatories, after they have once been submitted and the jury has commenced its deliberations thereon. The shipowner further argues that question number 1 related to "one or more issues of fact the decision of which is necessary to a verdict," and that, even if there be some power in the trial judge to withdraw interrogatories under certain circumstances, it was a clear abuse of discretion to withdraw a proper and material interrogatory, relating to an issue that must necessarily be decided in plaintiff's favor, if plaintiff was to recover any damages whatever. To permit such withdrawal, the shipowner claims, would defeat the very purpose of F.R.Civ.P., Rule 49(b), and smooth the way for a reluctant jury, unable to agree on the facts basic to recovery, to do "popular justice" through the medium of "an oldfashioned verdict."
The question is important, and, so far as we are aware, has never been decided by any federal court, although there are many state court decisions on various phases of the general subject. We hold, under F.R.Civ.P., Rule 49(b), that from the expressed power to submit interrogatories there is to be implied power to withdraw these same interrogatories in proper cases. Just as the trial judge may in his discretion submit interrogatories, so in his discretion he may withdraw them; but his ruling withdrawing the interrogatories is reviewable by us for abuse of discretion. In this case we think question number 1 was ambiguous, it certainly was not understood by the jurors, and the attempted explanation, to which we shall presently return, not only failed to clear up the ambiguity, but to some extent increased it. Under these circumstances we hold it was not an abuse of discretion to withdraw all the questions and authorize the jury to render a general verdict.
The jury commenced their deliberations at 2:45 p.m. At 5:40 p.m. the trial judge received a note from the jury reading: "Your Honor, could we ask for your interpretation of the word 'had' in the second line, first question? Did the plaintiff injure himself?"
Appellant's counsel assures us that the question and the explanation given by the trial judge is just as simple as "whether the plaintiff was injured as he claimed," or, in other words, whether he was injured in the manner described by him in his testimony. What the trial judge said, however, is as follows:
"What I was trying to find out by the first question was whether or not plaintiff injured himself on board this ship, assuming that he had to remove the plates, assuming that he had to crouch down, and assuming he exerted this pressure with the wrench instead of his hand?
"So in answer to your specific question as to the interpretation of the word 'had' it means that I assumed that he had to remove the plates, and he had to do this, and he had to do that. I didn't mean to take away from you the question as to whether he did in fact have to do that. In other words, the purpose of the question is to find out whether the plaintiff injured himself on board the ship in the manner that he described. The defendant claims that he did not. So the first question that I wanted answered was did he injure himself aboard the ship by doing what he said he did?
"If you find that he didn't remove the plates or he didn't bend down, or he didn't crouch, or he didn't have to, or he didn't do it, those questions will be answered as you go on ...