Before GOODRICH, McLAUGHLIN, and O'CONNELL, Circuit Judges.
McLAUGHLIN, Circuit Judge.
This is a personal injury action by a seaman against the general agent of his ship, which resulted in a judgment in favor of the defendant. There is a cross appeal by the defendant from an order of the District Court requiring it to pay to the plaintiff the expenses of plaintiff's counsel in attending the taking of a defense deposition in Chicago.
The appellant Gibson was second assistant engineer on the S. S. Ernest W. Gibson, owned by the United States and for which appellee was general agent. While the ship was on the high seas enroute from Cardiff to Jacksonville, Gibson, who said he had not been well, testified that he attempted to turn the throttle to shut off the steam. He said the wheel stiffened and that he applied unusual effort. He felt a sharp pain in his chest and slumped over, unable to continue. There is a conflict regarding the medical care and attention given him from that time on. It developed that he had a heart condition which he claims was caused or aggravated by the throttle incident and by improper care thereafter. He sued the defendant on the ground of unseaworthiness of the S. S. Gibson because of the alleged condition of the throttle and for negligence because of the alleged failure to render him prompt and adequate medical attention.
Appellant asserts that two witnesses he says he located after the trial would have materially substantiated his story respecting the condition of the throttle which was all important and which, as the verdict indicates, the jury did not believe. He says it was defendant's fault that he did not know of these witnesses prior to trial and that because of this the court below should have allowed him a new trial. The witnesses Scott, an oiler, and Third Mate Clayton had been members of the S. S. Gibson's crew during the period involved in this action.
By its answers and supplemental answer to interrogatories, defendant furnished plaintiff the names and addresses of the crew and where requested, their shifts or watches. Defendant, complying with the plaintiff's demand, also furnished the names of the crew it had interviewed and from whom statements had been obtained. Defendant's supplemental answers to the interrogatories were filed May 6, 1947. That same day an attorney in Baltimore, acting for the defendant, obtained a signed statement from Scott who was aboard a ship in that harbor. There is nothing in the record to show that the statement was received in Philadelphia the same day it was taken which was also the day the supplemental answers were filed. And there is nothing in the record to impugn the good faith of the defense attorneys in not stating in the supplemental answers that a statement had been obtained from Scott. Whether in fact it actually had been obtained at the time the supplemental answers were filed does not appear and as the appellant concedes, "It is conceivable that this statement was obtained later in the day, after the supplemental answers had been filed." Appellant further admits that he had the right to serve additional interrogatories from time to time. This case was not tried until November 18, 1947. There were a number of proceedings in the litigation prior to that date and ample opportunity to serve such additional interrogatories. Scott, the oiler, was known to Gibson who had been one of the ship's engineers and who had named Scott in his oral examination by the defense as a possible witness. Scott was not in the employ of appellee when the interrogatories were filed or after that and it is not shown that the defense had any other information as to his whereabouts than had the plaintiff.
Under the particular circumstances we are not convinced that the defense had the duty to advise plaintiff it had a statement from Scott.Without such duty there would be no excuse for allowing Scott's testimony. It was neither newly or after discovered evidence. Gibson, seemingly better than anyone else knew of Scott's relationship to the matter and had advised his lawyers of Scott. It happened that his attorneys' letters to Scott at his mother's home (Scott's address) went unanswered. A check at that address would have readily located Scott.
The situation respecting Clayton presents no difficulty. One of the defense attorneys talked with him by telephone on October 21, 1947 at which time there admittedly were no interrogatories outstanding. Clayton was not then or later in the defendant's employ. As with Scott, the defendant had only his home address, the same as plaintiff possessed. No obligation is shown on the part of the defendant to advise plaintiff that one of its lawyers had talked with Clayton. As near as can be ascertained from the record, the first time plaintiff contacted this witness was December 20, 1947, after the trial. No reason is suggested for this other than the fact that the defense had failed to advise plaintiff of the telephone talk the attorney had with Clayton in October and this is no excuse.
We are satisfied that the District Court in refusing to grant a new trial because of the offer of the testimony of Messrs. Scott and Clayton did not abuse its discretion.
Appellant asserts that the District Judge in his charge based liability on negligence alone thus precluding recovery for unseaworthiness; he also says that one of the defendant-appellee's points for charge which was affirmed and read to the jury, gave the latter an incorrect definition of unseaworthiness. A careful examination of the whole charge shows that there was no substantial error involved in connection with either of these items.
In the beginning of his charge, the Court told the jury the elements constituting plaintiff's claim for damages and regarding his contention of unseaworthiness, and said:
"* * * he puts several causes for damages before us for consideration. The first one is the condition of the machinery on the ship. He says that the machinery on the ship didn't operate properly, that this valve stuck, and that it stuck in a manner that was unusual, and either through the negligence of the persons who installed the machinery or negligence of a fellow seaman who last shut it down, or some inherent defect in the machinery itself, that is, in the valve, it stuck, and in that way the ship was not a seaworthy, efficient ship. That is the claim that he has put forth."*fn1
After referring to evidence that the valve had stuck, the Court then said, "That is a question of fact that you will have to decide, - as to whether the ship was in a seaworthy condition with reference to this appliance that has been described."
Immediately following the above specific reference to the seaworthy phase of plaintiff's claim, the Court took up the second branch of the case, the negligence feature. He said:
"Then, the plaintiff puts forth another claim for your consideration: He claims that after his condition became evident to the master of the ship and the officers of the ship, that he was not given ...