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PHILLIP v. UNITED STATES LINES CO.

March 4, 1965

Annie PHILLIP, Administratrix of the Estate of Augustus J. Phillip, Deceased
v.
UNITED STATES LINES COMPANY



The opinion of the court was delivered by: DUSEN

This case is before the court upon the application of the plaintiff, Annie Phillip, Administratrix of the Estate of Augustus J. Phillip, deceased, for a partial new trial on the issue of punitive damages (Document 33).

This action was brought by Annie Phillip, as widow and personal representative of Augustus Phillip, a member of the crew of defendant's vessel, 'American Builder.' The vessel was at sea at the time of such death. The case was tried before the undersigned and recovery was sought under the Jones Act, 46 U.S.C.A. § 688, which incorporates provisions of the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51 and 59. On October 8, 1964, the jury returned a verdict in favor of the plaintiff in the sum of $ 37,000. (Document 31.)

 The plaintiff claimed punitive damages in the Complaint, and at the trial asked that this issue be submitted to the jury. This request was objected to by the defendant and the objection was sustained by the court (N.T. 572, 573, 579). The plaintiff objected to the court's failure to charge on punitive damages (N.T. 635) and the plaintiff filed this post-trial motion for a partial new trial on the issue of punitive damages (Document 33). Defendant also filed a post-trial motion for a judgment n.o.v. or for a new trial (Document 36), but this was subsequently withdrawn (Document 45). As stated in the plaintiff's brief at page 1 (Document 50), the only issue before the court is whether, under the facts of the instant case and the applicable law, the issue of punitive damages should have been submitted to the jury.

 At about 7 P.M. on the evening of February 7, 1961, while the defendant's vessel was in the English Channel, the deceased Phillip suddenly went berserk. He appeared in a passageway wearing a ceremonial robe and holding a piece of slag in his hand. His outburst, which injured members of the crew, was so violent that it became necessary to overpower him. He was taken to the ship's hospital room, where his hands were shackled with handcuffs to the sides of a bunk and his feet were tied by a rope to the lower end of the bunk. No sedative was administered to him and the vessel was not diverted to any shoreside medical facility, but continued on its course along the French Coast until it entered the Gironde River on the morning of February 9, 1961. Crew members stood watch outside Phillip's room with the door open from 8 P.M. on February 7, 1961, until 9 A.M. on February 9, 1961, when the ship reached its destination at Bassens (near Bordeaux), France (see Exhibit P-8).

 Shortly after 8 A.M. on February 9, 1961, one of the guards became concerned over Phillip's lack of movement while lying in his bunk. Phillip at this time had a blanket over his head which stretched down covering most of his body. The guard eventually lifted the blanket from over Phillip's head and saw strips of blanket stuffed in his mouth and nostrils. Not being able to detect breathing, the guard raised an alarm between 8 and 9 A.M. on February 9, which brought the ship's second officer, who removed the strips of blanket from Phillip's mouth. An attempt was made to revive Phillip by artificial respiration, which proved useless. Since the ship was just docking at Bassens, a shore doctor was secured and he certified Phillip dead at 9:45 A.M., attributing death to violent delirium (Document 42, N.T. 406).

 The defendant asserted, both in its brief and at oral argument, that punitive damages are not recoverable in the instant case, first, because recovery under the Jones Act is limited to compensatory damages and, second, because punitive damages may not be imposed against a corporate, ship-operating employer unless such employer was involved directly in the wrongful acts of his servant or agent by knowledge, participation or ratification. While these two issues were ably briefed and argued by both counsel, it is not necessary to decide that such a corporate shipowner may never be held liable for punitive damages under the Jones Act, *fn1" since it is clear that plaintiff cannot recover on the facts of this case construed in the most favorable light for plaintiff.

 "Punitive damages' are damages, other than compensatory or nominal damages, awarded against a person to punish him for his outrageous conduct.' Restatement of Torts, 908(1).

 'Punitive damages will be allowed for torts that are committed wilfully, maliciously, or so carelessly as to indicate wanton disregard of the rights of the party injured. Such conduct must appear affirmatively in the evidence.' Thompson v. Swank, 317 Pa. 158, 159, 176 A. 211 (1934).

 See also, Huges v. Babcock, 349 Pa. 475, 37 A.2d 498 (1944); Adelman v. Rosenbaum, 133 Pa.Super. 386, 3 A.2d 5 (1938), and cases cited therein. *fn2"

 Punitive damages will only be awarded for outrageous conduct, i.e., for acts done with a bad motive or done with a conscious or reckless indifference to the interests of others. Restatement of Torts, § 908, comment (b). It is improper to submit to the determination of the jury the issue of punitive damages in the absence of evidence of the requisite elements for the application of the rule. See, for example, hoffman v. Berwind White C. Min. Co., 265 Pa. 476, 482-483, 109 A. 234 (1920).

 In the Restatement of Torts, § 908, comment (d), this language is used:

 'It is error for the trier of fact * * * to award punitive damages where there has been no bad motive or wanton indifference; an instruction that the jury can award punitive damages in such a case followed by a verdict which, from its size, indicates that punitive damages have been awarded is ground for a new trial.'

 On the facts of the instant case, it would have been error if the jury had awarded punitive damages to plaintiff. There was insufficient evidence to justify a finding that decedent's death was the result of (1) a malicious motive of, or (2) a conscious or reckless indifference to the interests of the decedent by, the defendant.

 Plaintiff claims that the following evidence would justify a jury's finding intentional misconduct or reckless disregard of Mr. Phillip's ...


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