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Applebaum v. American Export Isbrandtsen Lines

decided: December 13, 1972.


Mansfield, Oakes and Timbers, Circuit Judges.

Author: Mansfield

MANSFIELD, Circuit Judge:

In this seaman's action for damages for injuries attributed to an accident on board defendant's vessel, allegedly caused by the ship's unseaworthiness or defendant's negligence, the latter claim brought under the Jones Act, n.1 [FOOTNOTE OMITTED] the jury returned a verdict in favor of the defendant. Upon this appeal the seaman, Abram M. Applebaum, seeks a new trial, asserting as error various rulings by the district judge during the course of the trial. Because we conclude that one of these rulings was erroneous -- the exclusion of an important witness' prior consistent statement as to certain essential facts regarding the accident after he had been impeached by a prior inconsistent statement -- we reverse and remand for a new trial.

Appellant, employed aboard ship as a bedroom utility man, claimed that on September 30, 1968, because of a dangerous, slippery condition on an outside ladder located on the port side of the ship, the Export Aide, he slipped on the ladder as he was returning from his duty station on the starboard side of the boat deck to his forecastle on the port side of the main deck. Specifically his claims, as recorded in the pretrial order signed by the district court and by counsel for the parties, were that appellee was negligent, inter alia, "in permitting the steps of the ladder to remain in a slippery, wet, slushy, greasy and dangerous condition without taking the necessary steps and precautions to clean and remove the slippery substances; in creating a slippery, wet and slushy condition about the deck where soogieing [sic] operations were being conducted . . .", and that the vessel was unseaworthy, inter alia, because the steps of the ladder were permitted "to remain in a wet, slippery, slushy and dangerous condition" as a result of the shipowner's failure "to clean and remove, the slippery, greasy and soapy conditions of the steps of the said ladder."

Appellee's response in the pretrial order and at trial was a denial that the accident had occurred as alleged. It contended that if Applebaum injured himself while descending a ladder, the injuries were the result of his lack of care and not the unseaworthiness of the vessel or its negligence.

At trial Applebaum testified that on September 30, 1968, after crossing a portion of the officers' deck, which was wet, slippery and greasy, he slipped and fell while descending an outside ladder on the port side of the ship, leading from the officers' deck to the main deck, wrenching his back in the process. When questioned whether his testimony was that the ladder was "all wet and slippery with soogee material," he responded that "they had been soogeeing." "Soogeeing" refers to a process by which the bulkheads or vertical surfaces of the ship are scrubbed with a soapy solution and rinsed off with water, whereas "washing down" is a process of hosing the decks with water only to rid them of debris.

To corroborate his own testimony, appellant offered the testimony of four seamen who had been aboard the vessel at the time of the accident, two of whom testified personally and two by deposition. Albert Lopes testified in person that while he did not observe the accident he had been soogeeing just prior to the fire and boat drill and that the officers' deck in the vicinity of the ladder leading down to the main deck was slippery from soap and water that remained. Another seaman, George Dixon, testified that he had been soogeeing on the morning of the accident, had seen Applebaum stretched out at the bottom of the ladder from the officers' deck to the main deck, and had observed, as he proceeded down the ladder, that it was wet, slippery and greasy as a result of soogeeing. A third witness, Jacob Landor, deposed that he saw Applebaum fall down the same ladder, which was on the port side of the ship and was wet and slippery at the time, and that soogeeing had occurred that morning.

The evidentiary question on this appeal relates to the deposition testimony of Daniel Donegan, which was offered at trial on January 30, 1972. Donegan had been deposed by counsel for both parties on June 16, 1971, and was unavailable because at sea when the trial commenced. By deposition he testified (1) that he among others had been soogeeing the bulkhead on the officers' deck just prior to the afternoon fire and boat drill (as well as washing down the decks earlier that morning), and (2) that he saw Applebaum fall on the portside ladder leading down from the officers' deck to the main deck. "To attack the man's credibility," defendant's counsel offered a statement taken by him from Donegan on May 13, 1971, one month before Donegan was jointly deposed, in which Donegan indicated that he did not remember whether he or anyone else had been soogeeing on the day of Applebaum's accident, that the accident had occurred on the starboard outside ladder, and that Applebaum had not fallen because he had caught himself on the handrail of the ladder.

When defense counsel expressed his intention to offer Donegan's prior contradictory statement, plaintiff's counsel countered that if it were received, he would rehabilitate the witness by introducing a prior statement given by Donegan to plaintiff's investigator in November 1968, only six weeks after the accident and some 2 1/2 years prior to the later statements, which was consistent with Donegan's deposition testimony introduced at trial. The trial judge expressed his inclination to admit both statements since they went "to the credibility of Mr. Donegan" and to leave it to the jury to judge his credibility.

In view of this tentative ruling plaintiff did not object to defendant's introduction thereafter of Donegan's May 13, 1971 statement contradicting his deposition in material respects. However, when the prior consistent statement was later offered by plaintiff's counsel, it was not admitted by the court. Initially it was excluded because a conformed copy rather than the signed original was offered. Later, when the original was offered, the trial judge refused to admit it or to permit reference to it in summation, stating that while the inconsistent statement amounted to a charge that Donegan's trial testimony had recently been fabricated, see C. McCormick, Evidence § 49 at 109 (1954), rehabilitation through his earlier consistent statement was precluded because the earlier statement was not shown to have antedated the existence of a motive to fabricate, see Ryan v. United Parcel Service, Inc., 205 F.2d 362 (2d Cir. 1953), since it had been given by Donegan to a representative of Applebaum, who "was trying to make the best case for the plaintiff." Appellant then sought to introduce that limited portion of the prior consistent statement in which Donegan described the accident as having occurred on the portside ladder between the officers' and main decks and stated that he and other members of the deck department had soogeed on that day. However, the offer was rejected as to any part of the statement.

Although at one time prior consistent statements were not generally admitted for the purpose of rehabilitating a witness after impeachment through his prior inconsistent statements, United States v. Sherman, 171 F.2d 619, 621-622 (2d Cir. 1948), cert. denied sub nom. Grimaldi v. United States, 337 U.S. 931, 69 S. Ct. 1484, 93 L. Ed. 1738 (1949); 4 Wigmore, Evidence § 1126 (3d ed. 1940), that principle has in recent years been liberalized. The rule, as thus modified, was recently summarized in United States v. Zito, 467 F.2d 1401 at p. 1403 (2d Cir. 1972), where this Court stated

"that prior consistent statements can only be introduced after a charge that a witness's story is a recent fabrication and where the statements were made before any motive to fabricate developed. Felice v. Long Island Railroad, 426 F.2d 192, 197, 198 (2d Cir. 1970), cert. denied, 400 U.S. 820, 91 S. Ct. 37, 27 L. Ed. 2d 47; United States v. Fayette, 388 F.2d 728, 735 (2d Cir. 1968); United States v. Sherman, 171 F.2d 619, 622 (2d Cir. 1948), cert. denied sub. nom. Gimaldi v. United States, 377 U.S. 931, 69 S. Ct. 1484, 93 L. Ed. 1738; Proposed Federal Rules of Evidence, 801(d) (1)(B) (submitted to the Supreme Court in November 1971)."

Since the same exception is made by New York courts, see Moore v. Leventhal, 303 N.Y. 534, 104 N.E.2d 892 (1952); 1 Mottla's New York Evidence § 462 (2d ed. 1966), we would in any event be bound, to the extent that New York courts have modified the general rule against admission of prior consistent statements, to honor that modification. Rule 43(a), F.R.Civ.P.

Applying the rule in the present case, there was ample support in the record for Judge Bonsal's conclusion that defense counsel's impeachment of Donegan's trial testimony by introduction of his prior inconsistent statement amounted to a charge that his deposition testimony received at trial, insofar as it related to certain crucial issues (i. e., where Applebaum had fallen and whether his fall had been caused by soogeeing), was a recently concocted fabrication. From the opening statements throughout the trial there was a sharp conflict between the parties as to where and how Applebaum had been injured. His version, which was supported in varying degrees by each of four witnesses he called (including Donegan), was that he had fallen on the portside ladder because of a slippery, unseaworthy condition caused by the runoff of soapy soogee solution. Appellee, on the other hand, contended that the accident had not occurred in the place or manner claimed by Applebaum and, indeed, that while there had been washing down on the day of the accident there had been no soogeeing, which Applebaum had heavily relied upon as the basis of his claim of an unseaworthy condition. In support of its version the shipowner introduced evidence that when Applebaum reported the accident three days after it had allegedly occurred he was recorded by the purser as having said that he had been injured while coming down the inside midshiphouse ladder because his shoes were wet from the decks. Mere water on the decks, of course, would not ordinarily amount to an unseaworthy condition, and there was no suggestion of an unseaworthy condition on the inside ladder. Appellee further pointed to two Master's Certificates signed by Applebaum in which he requested medical treatment. In the first Applebaum stated that he "must have gotten [his] ...

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