Appeal by plaintiff in seaman's personal injury action from order of United States District Court for the Southern District of New York, Richard H. Levet, J., reducing jury verdict without consent of plaintiff and directing entry of judgment in lower amount.
Feinberg, Timbers and Van Graafeiland, Circuit Judges.
This case presents another aspect of the attempt of trial judges to control verdicts they regard as excessive and the rights of plaintiffs to appeal from such action. In one of those coincidences that makes the law so fascinating, the procedures utilized here are almost the precise reverse of those in Reinertsen v. George W. Rogers Constr. Corp., 519 F.2d 531 (2d Cir. 1975), in which this court recently discussed the general problem at length. Robert Fross Staplin appeals from an order of the United States District Court for the Southern District of New York, Richard H. Levet, J., which reduced a jury verdict of $3,500 to $2,335 and directed entry of judgment in the lower amount. For reasons indicated below, we reverse the order of the district court and order judgment in the full amount awarded by the jury.
Plaintiff Staplin injured his right foot while employed in March 1973 as a merchant seaman on the S/S Overseas Ulla, a vessel owned by defendant Maritime Overseas Corp. The circumstances of the accident need not concern us because in a bifurcated jury trial before Judge Levet, defendant was apparently found liable for plaintiff's damages and does not now complain of that verdict.*fn1 The second part of the trial covered damages. On this issue, there was evidence before the jury that plaintiff was a chief pumpman aboard the vessel; that he was a "permanent employee" and would not have had to leave the vessel had he not been injured; that he did leave the vessel on March 22, 1973 with a Master's Certificate to be treated at the United States Public Health Service Marine Hospital, which pronounced him not fit for duty at that time; and that he was not found fit for duty until May 30, 1973.
The trial was held in March 1974, and plaintiff's claim for damages was limited to pain and suffering and lost earnings for the period he was not fit for duty. On the issue of lost earnings, plaintiff introduced into evidence exhibit P-2, showing that he had earned $2,125.78 for two months and four days of work on the voyage of the S/S Ulla during which he was injured. There was also a stipulation as to the wages earned by plaintiff in the four year period of 1969-72. These averaged about $6,200 per year.*fn2
The judge originally told the jury that it should award plaintiff as compensation for lost earnings what the jury believed "plaintiff would have earned," that it "may consider the average" of the four years' earnings and that it "may also consider, for whatever aid it may be," exhibit P--2. The judge furnished the jury a form upon which it was to record its special verdict in response to questions, which are quoted hereafter. After starting deliberations, the jury sent a note which asked:
Was plaintiff paid wages while unfit for duty?
The answer, of course, is no. That's what the claim is all about as far as past wages are concerned. . . .
I will explain to you that the proper way to calculate it would be to take an average -- an annual amount for the previous four years and allot four months and six days,*fn3 I guess it is, and if you believe that's correct, and it has been proved that he was unable to work because of the accident, then you put that amount, whatever amount you come to, in the special verdict. I think I have answered it.
Is there any question now?
Do you understand, Mr. ...