on the ultimate result. If it was error, it was completely harmless. The issue was not as to the strength of the bags but as to the manner in which the bags were stowed in the hold and the condition of the stow itself, including the seepage of sand over the bags and in the area from which they were being removed.
Finally, defendant raises one other question to which we will briefly refer. It was apparently his desire to cross-examine plaintiff relative to a recovery which he had in another accident sometime previously and as to Hagans' statement that he terminated treatment at the Pennsylvania Hospital because he 'couldn't afford the money.' The Court did curtail cross-examination because it felt that defendant's counsel was going into completely irrelevant matters. In fact, defendant has given us no authority for its position that we should have permitted it to bring into this case the history of another case at some prior date and to go into extensive cross-examination as to whether a man was able to pay a hospital bill or not, none of which would have in the slightest affected the issues as to liability or damages.
Therefore, as to defendant Ellerman, an Order will be entered consistent with the above.
Turning to the motion of Atlantic, they have interposed the same general arguments as the defendant Ellerman, but, in addition, the following which require some further discussion:
At the outset of this trial, Atlantic sought a severance of the action of defendant Ellerman against them from the original cause. The motion was made and denied. As we understand it, this Court with the approval of the United States Court of Appeals for the Third Circuit has left this matter of severance to the discretion of the presiding judge. For a full discussion of the matter see Weitort v. A. H. Bull & Company v. Jarka Corporation of Phila., D.C.1961, 192 F.Supp. 165, Opinion of Van Dusen, J. We conclude that there are cases in which a severance might be desirable but there appeared, in the opinion of the Court, to be no merit to such a conclusion in this case.
At the beginning of the trial, plaintiff asked the Court to rule that the third-party defendant Atlantic be precluded from cross-examining his witnesses. Atlantic had not filed an answer to the original complaint and was not an adverse party to plaintiff on the record, although, admittedly, there did appear during the trial some adversity as to the facts which later developed. We ruled in favor of the plaintiff on that point, but informed counsel that we would listen carefully to the testimony and that if at any stage during the trial any witness called by the plaintiff in our opinion stated facts which were prejudicial to the third-party defendant, we would allow cross-examination or if, on the other hand, counsel for the defendant failed to fully cross-examine, we would permit the third-party defendant to do so. We have re-examined the record and cannot find that on the basis of the testimony of all the witnesses for plaintiff, except one, that the third-party defendant was prejudiced by our ruling. As to that one witness, who was an expert called to testify on the proper or improper method of unloading broken bags of sand, the third-party defendant was given full opportunity of cross-examination. We gather from the third-party defendant's brief and argument that he does not question our ruling so much on the testimony elicited from plaintiff's witnesses on direct-examination but the inferences arising from the original defendant's questions on cross-examination. We are unable to agree with him on this point. A careful review of the record does not disclose to us anything which he could have raised on cross-examination which would have enhanced his position in the slightest degree. He overlooks the prejudice to plaintiff of repetitive cross-examination and the general principle that 'the district judge has wide discretion in regulating trial procedure.' Walker v. Loop Fish & Oyster Co., 5 Cir., 1954, 211 F.2d 777, 781. Were we convinced in the slightest degree that the failure to cross-examine the witnesses other than the expert prejudiced the position of the third-party defendant, we would readily grant a new trial, but such is not the case.
The third-party defendant further argues that the relationship between it and plaintiff is bound by the Pennsylvania Workmen's Compensation Act, 77 P.S. § 1 et seq., which limits its obligations to the amount payable by the stevedoring company, Atlantic. But under the facts of this case they are clearly governed by Ryan Stevedoring Company v. Pan-Atlantic S.S. Corp., 1956, 350 U.S. 124, 76 S. Ct. 232, 100 L. Ed. 133. In this regard, an interrogatory was submitted to the jury as follows:
'(a) Do you find that the Atlantic & Gulf Stevedores, Inc., performed their services in connection with the discharge of the ship's cargo in a reasonably safe and workmanlike manner?
'(b) If your answer is no, was their failure to perform the work in a reasonably safe and workmanlike manner a substantial factor in causing the plaintiff's injuries?'
The jury answered (a) 'no' and (b) 'yes.' The obligation of indemnity is maritime in nature and state law is inapplicable. We are, therefore, bound by the findings of the jury and cannot accept the argument of the third-party defendant. An appropriate Order will be entered.
One further motion must be disposed of.
Subsequent to the argument and filing of briefs defendant Ellerman filed a 'protective motion of defendant Ellerman & Bucknall Steamship Co., Ltd. with respect to judgment in its favor and against third-party defendant Atlantic & Gulf Stevedores, Inc.' In this motion it states: 'In the event this Honorable Court should decide that the judgment entered March 22, 1961 in favor of plaintiff and against defendant should stand then defendant moves this Honorable Court to supplement the judgment entered in its favor and against third-party defendant, Atlantic & Gulf Stevedores, Inc. On March 22, 1961, to include as items of recovery in favor of the defendant its necessary costs, fees and expenses, including attorneys' fees, incurred in the defense of the within matter as they shall finally appear.' We are not convinced that the defendant should recover its attorneys' fees from the third-party defendant as a matter of course in all cases of this nature. However, we are willing to hear argument on this point. Therefore, we will await further action of counsel before we rule on this motion.
For the foregoing reasons we enter the following Order:
And now, to wit, this 11th day of September, 1961, the following motions of the defendant Ellerman & Bucknall Steamship Company, Ltd. are denied:
1. Motion for judgment notwithstanding the special verdict;
2. Motion for judgment in accordance with defendant's motion for a directed verdict;
3. Motion to vacate the judgment; and
4. Motion for a new trial on the issue of liability between the plaintiff and the defendant. The defendant's motion to supplement the judgment in favor of the defendant and against the third-party defendant so as to include costs, expenses, and attorneys' fees will be held under advisement.
The following motions of the third-party defendant Atlantic & Gulf Stevedores, Inc. are denied:
1. Motion for judgment notwithstanding the special verdict;
2. Motion for a directed verdict;
3. Motion for a new trial with regard to the third-party action; and
4. Motion to vacate the judgment entered in favor of the defendant and against the third-party defendant.
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