Before LUMBARD, Chief Judge and KAUFMAN and HAYS, Circuit Judges.
Defendant, Moore-McCormack Lines, appeals from a judgment of the district court entered upon the verdict of a jury which awarded plaintiff Horton $80,000 as damages for personal injuries and awarded Moore-McCormack $4,300 against the third party defendant Rivera.Defendant contends that it is entitled to a new trial because of (1) insufficiency of the evidence to support a finding of unseaworthiness, (2) errors in the judge's charge and in the admission of certain evidence and (3) inconsistency of the verdict.
1. Unseaworthiness . The evidence which is the basis for plaintiff's recovery shows that plaintiff sustained his injuries when he was attacked and severely beaten by Rivera who was a member of the crew of the ship on which plaintiff was boatswain. The issue of Moore-McCormack's liability was submitted to the jury on two grounds, unseaworthiness and negligence and can be upheld only if sustainable under both theories. Moore-McCormack does not question the sufficiency of the evidence on the issue of negligence. It contends, however, that there was insufficient evidence of unseaworthiness to take the case to the jury.
We believe that on the evidence the jury was justified in finding that Rivera was not "equal in disposition * * * to the ordinary men in the calling." Boudoin v. Lykes Bros. S.S. Co., 348 U.S. 336, 75 S. Ct. 382, 99 L. Ed. 354 (1955). That evidence shows that, before his attack on Horton, Rivera had made a vicious attack on another crew member, that his unprovoked attack on Horton was characterized by uncontrolled violence, that in attacking Horton he used a broken glass and a bottle and that in both of his attacks he bit his victims severely. Such evidence of "dangerous propensities and proclivities" is sufficient to support a jury finding of unseaworthiness. Boudoin v. Lykes Bros. S.S. Co., supra.
2. Judge's charge; admission of evidence . Moore-McCormack's principal claim of error with respect to the judge's charge is that the judge instructed the jury that it could award Moore-McCormack any part of Horton's recovery against Moore-McCormack that it (the jury) thought proper. It was undoubtedly this clearly erroneous instruction which led the jury to bring in an inconsistent verdict. The point is therefore covered in our discussion below of the effect of the inconsistent verdict.
Moore-McCormack also complains of the judge's failure to give certain charges which it requested. We find that the substance of the requested charges was given insofar as the requests were proper.
Moore-McCormack further cites as error the admission in evidence of a document from a hospital in which plaintiff was a patient. The document appears to be a record made in the regular course of business and therefore admissible under the Business Records Act (28 U.S.C.§ 1732). See Korte v. New York, N.H. & H.R.Co., 191 F.2d 86 (2d Cir.), cert. denied, 342 U.S. 868, 72 S. Ct. 108, 96 L. Ed. 652 (1951); United States v. New York Foreign Trade Zone Operators, Inc., 304 F.2d 792 (2d Cir.1962). But even if the document was not admissible we hold that, in the light of other medical evidence and of the limited use made of the document, the error was harmless.
3. Inconsistent verdict. The jury returned a verdict for Horton against Moore-McCormack for $80,000 and for Moore-McCormack against Rivera for $4,300.
The verdict is clearly inconsistent. The liability of Moore-McCormack to Horton is based wholly upon the injuries inflicted on Horton by Rivera. There is no evidence which would support any liability of Moore-McCormack which does not arise from Rivera's attack on Horton. The claim of unseaworthiness was grounded on Rivera's conduct. The owner's negligence was in hiring Rivera, in laxity of discipline which permitted this attack on Horton and in failing to halt that attack. The verdict against Rivera should have encompassed the entire amount of damages awarded Horton against Moore-McCormack.
As concerns Moore-McCormack's claim against Rivera the issue submitted to the jury was Rivera's liability for breach of his "implied agreement * * * to perform his duties in a proper and seamanlike manner." Not only is it true that in this area of "contractual indemnity" there is no room for application of the theories of "active" or "passive," "primary" or "secondary" negligence (Weyerhaeuser S.S. Co. v. Nacirema Operating Co., 355 U.S. 563, 569, 78 S. Ct. 438, 2 L. Ed. 2d 491 (1958) ), but the fact that Rivera's conduct, which resulted in Moore-McCormack's liability to Horton, was wilful conduct, and not merely negligent conduct, makes this an even stronger case for recovery by Moore-McCormack of the entier amount of the damages awarded to Horton. (See Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 132-135, 76 S. Ct. 232, 100 L. Ed. 133.) Moreover it is clear that Rivera cannot be heard to argue that Moore-McCormack is liable because by its negligence it permitted him to attack and injure Horton. See Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., supra, 350 U.S. p. 134-135, 76 S. Ct. p. 238, 100 L. Ed. 133:
"Whatever may have been the respective obligations of the stevedoring contractor and of the shipowner to the injured longshoreman for proper stowage of the cargo, it is clear that, as between themselves, the contractor, as the warrantor of its own services, cannot use the shipowner's failure to discover and correct the contractor's own breach of warranty as a defense."
There is no reason to believe that there was any error in the jury's verdict in the action of Horton against Moore-McCormack.The charge correctly set forth all the elements of the case on which the jury was required to pass in order to establish Moore-McCormack's liability to Horton. The error is in the verdict for Moore-McCormack against Rivera and is readily accounted for by the erroneous charge which instructed the jury that they could find for Moore-McCormack for a part only of the damages. The jury should have been instructed (as in fact they were at other points in the charge) that they must find for Moore-McCormack in the same amount which they found for Horton against Moore-McCormack.
Since there is no error in the jury's verdict for Horton there is no justification for remanding for a new trial of the main action. Dunbar v. Henry Du Bois' Sons Co., 275 F.2d 304 (2d Cir.1960). Moore-McCormack took no exception to Horton's verdict on grounds of inconsistency at the time it was rendered; this reinforces our view that it may not be set aside now. Rule 59(b), F.R.Civ.p. allowing ten days for the filing of a motion for a new trial, should not be so construed as to enable litigants to preserve a clear and easily correctable error, in order that they may gain a new trial or reversal on appeal. Yet, since an increase in the judgment over against Rivera seems clearly warranted in fact and in ...