transcript of the trial proceedings. As noted supra, plaintiff's counsel requested only a partial transcript; the only testimony transcribed deals with the Court's refusal to allow plaintiff to present evidence of the defendants' alleged failure to pay maintenance and cure. We had assumed that the plaintiff's post-trial motions would not refer to any part of the trial which he had not had transcribed. Indeed, to the extent that the plaintiff's post-trial motions depend on such untranscribed testimony, those motions should be dismissed for want of prosecution under Local Rule 31.
In support of his motion for judgment n.o.v., plaintiff argues that "at no time did the officers or agents of defendants administer any medical care whatsoever by a physician until June 11, 1963, and * * * this failure * * * warranted the Court in charging the jury that the defendants were negligent." Plaintiff claims that this testimony was "undisputed".
Even if the testimony on this point was available and was undisputed, it would not require a directed verdict on the issue of the defendants' negligence. Negligence was the only theory of liability presented to the jury in this case. Whether the defendants' failure to provide medical care was negligent depends upon all the facts and circumstances of the case. In support of their decision to transport Dantzler to Ceylon for treatment, the defendants presented testimony that a typhoon had recently devastated the coastal area surrounding Chittagong, Pakistan, where the ship was at anchor when the plaintiff suffered his apparent breakdown. The harbor was crowded; berthing delays were customary; transportation inland and lines of communication had been seriously disrupted. Considering the evidence in the light most favorable to the defendants, we believe that the jury could have fairly concluded that the defendants acted reasonably and thus non-negligently under the circumstances.
Additionally, we disagree with the plaintiff's contention that it is undisputed that plaintiff received no medical care until June 11, 1963. The defendant alleges and we remember testimony to the effect that a physician came aboard the S.S. "Smith Defender" in Chittagong harbor and examined Dantzler on June 6, 1963, within a few hours after the plaintiff was placed under restraint. Further, the defendant did allow the plaintiff to take medication for his emotional distress which the plaintiff himself possessed. The jury might well have concluded that these efforts at medical ministration were reasonably sufficient under the circumstances. The plaintiff's recollection of the testimony may differ from ours; but since he has chosen not to produce the transcript on this point, we must rely on our memory and on our notes, rather than on what he alleges as "undisputed".
The plaintiff also contends that "it was uncontradicted" at trial that a booklet aboard the ship entitled The Ship's Medicine Chest and First Aid at Sea specified "without equivocation. * * * that when a seaman became excitable as plaintiff did in this case, he must be given phenobarbital and never placed in irons." The plaintiff contends that because the defendants disregarded this "uncontradicted" instruction, the Court should have directed a verdict in favor of the plaintiff on the issue of negligence.
The First Aid booklet recommends that phenobarbital may be given in order to quiet an excited or delirious patient. Here, the ship's officers gave the plaintiff his own medication; and shortly again. To give the plaintiff his own medication and the phenobarbital might have been dangerous in itself. Since the course chosen by the ship's officers resulted in calming the plaintiff, it would appear that the additional precaution of phenobarbital was not necessary.
The First Aid booklet does advise that a severely excited patient "should not be put in irons". P. 321. However, at p. 289, the booklet also recognized that if a patient is in a delirious condition, "mechanical restraint may have to be used as a last resort", p. 289, or "when absolutely necessary", p. 290, and only with the permission of the Master of the ship, p. 290. According to defendants' testimony, the plaintiff had threatened the lives of three seamen, accused a seaman of "stealing" overtime hours from him, and held a knife to the neck of one seaman with whom he had become enraged. In the opinion of the ship's officers, his conduct was mortally dangerous to others and to himself. The ship's Master concluded that it was necessary to restrain the plaintiff in the ship's hospital by a leg iron with a thirty-foot chain on his left ankle.
Under the circumstances, the jury might well have concluded that the Master's decision was not unreasonable.
Furthermore, the plaintiff's contention that all the medical testimony disapproved of the leg iron method of restraint is not consistent with our memory of the testimony offered by the defendants' psychiatric expert. The defendants' witness observed that an individual such as the plaintiff, with a history of paranoid-schizophrenic illness, might benefit from being placed under mechanical restraint; that the restraint might relieve him of the anxious fear that he would harm himself or another. Coupled with the evidence that the plaintiff was calm after he was restrained, the jury might reasonably have concluded that the Master's decision was in the best interests of all concerned.
The plaintiff's argument that a directed verdict on negligence is necessary under the logic of DeZon v. American President Lines, 318 U.S. 660, 63 S. Ct. 814, 87 L. Ed. 1065 (1942), is unpersuasive. The DeZon opinion explicitly measures the extent of the duty to provide maintenance and cure by "the seriousness of the injury or illness and the availability of aid", and only requires that "reasonable measures" be taken. Under the circumstances of this case, the jury considered and approved the reasonableness of the defendants' actions.
We find no merit in any of the grounds urged by the plaintiff in support of his motion for judgment notwithstanding the verdict. Accordingly, the motion will be denied.
II. Motion for a New Trial
(A) The plaintiff contends that the Court erred in affirming and reading to the jury the defendants' point for charge No. 15. Plaintiff contends that the point was prejudicial because it might have misled the jury to believe that the S.S. "Smith Defender" was at sea when the plaintiff threatened his shipmates, whereas in fact the ship was in the Chittagong harbor.
The point for charge reads in part that "the Master of a vessel is not bound to disregard every other consideration and put into the nearest port when a seaman is ill aboard his vessel". It further notes that "the proximity of an intermediate port" is one of the factors to be considered in determining whether the Master has acted reasonably.
The plaintiff had contended at trial that the defendant, among other suggested courses of action, could have and should have put into an intermediate port during the voyage from Chittagong, Pakistan, to Colombo, Ceylon. This point for charge was correctly addressed to that argument. We do not believe it could have caused the jury to forget the fact admitted by the defendant and proved at trial that the plaintiff was originally restrained in the ship's hospital while the ship was in the Chittagong harbor. Furthermore, the Court specifically charged the jury that their collective recollection of the testimony, rather than that of the Court or of the lawyers, should determine the facts in the case. See Charge of the Court at p. 58.
The plaintiff's argument is without merit.
(B) The plaintiff further contends that the Court erred in affirming defendants' point for charge No. 21, which reads as follows:
"21. You may make no award of money damages to the plaintiff for any worsening or aggravation of his condition which you may find occurred due to his own conduct."
The plaintiff argues that this instruction on damages indirectly interjected the issue of contributory negligence into the case; that the defendants had not presented any evidence of plaintiff's contributing negligence; and that the Court should necessarily have also included an appropriate instruction on comparative negligence.
Specific interrogatories were submitted to the jury, and the jury found that the defendants had not been negligent in any way. Therefore, even if the point for charge at issue was erroneously given, which we doubt, it nevertheless was not prejudicial to the plaintiff's case. Contributory negligence was not a factor in the jury's decision.
The plaintiff's argument is without merit.
(C) During the course of the trial, the defendants failed to call the Master and two crewmen of the S.S. "Smith Defender", three witnesses who could have testified about the plaintiff's conduct and treatment during the voyage. The defendants did not take the depositions of any of these three witnesses nor did the plaintiff.
With respect to the absence of the Master, the defendants explained that the Chief Officer, who testified at some length during the trial, had witnessed the same events and given substantially the same testimony as would have been given by the Master; thus the Master's testimony would have been merely cumulative. The defendants also explained that, at the time of trial, the Master was aboard a ship enroute from Vietnam and could not be produced as a witness. Also, upon learning that the Master was on board an unreachable ship, the defendants applied for a continuance of the trial; the continuance was opposed by the plaintiff and denied by the Court, Chief Judge Clary presiding, on November 1, 1967.
The plaintiff submitted a point for charge to the Court which was approved and read to the jury. The point for charge, No. 21 offered by the plaintiff, read in part as follows:
"[Where] evidence which would properly be part of a case is within the control of the party whose interest it would naturally be to produce it, and without satisfactory explanation, he fails to do so, an inference may be drawn that the evidence if produced would be unfavorable to him."