The opinion of the court was delivered by: MARSH
Edna Mroz, the plaintiff, filed a complaint at Civil Action No. 65-716, setting forth three counts for damages under the Jones Act and maritime law. At No. 65-43 in Admiralty, she filed a libel and complaint for maintenance and cure for the illness and injuries set forth in the three counts at the civil action. At a hearing in the admiralty action held on May 31, 1966, by an associate Judge, on motion of the defendant, and over the objection of the plaintiff, the civil action and admiralty action were consolidated for trial.
With respect to the third count of the complaint, it was determined by court and counsel that a preliminary trial was required to determine whether the plaintiff-seaman on May 26, 1965, was a member of the crew of the Motor Vessel Freedom
and whether that motor vessel was in navigation on that date.
At the preliminary trial the plaintiff, who had been employed by defendant for many years, contended that on May 26, 1965, the defendant's motor vessel Freedom was a vessel in navigation and that plaintiff was a member of its crew. It appeared that the Freedom was tied to defendant's landing dock in the Ohio River because of a strike by the masters, mates, pilots and engineers, or their respective Unions. This strike started on March 31, 1965, and ended in the middle of June, 1965. In May, the defendant called back to work certain seamen, including the plaintiff, members of the National Maritime Union, who were not on strike. Certain seamen were painting the kitchen of the Freedom; they ate their meals on board and some slept on board. The plaintiff cooked and performed maid service; she worked for 17 days (T., p. 17). On May 26, 1965, she was hurt on board in an accident for which she claims damages in the third count of the complaint and for maintenance and cure in the admiralty action.
At the conclusion of the plaintiff's evidence, the defendant moved for a directed verdict which was denied. As in cases where the facts pertaining to negligence or contributory negligence are undisputed, it was our opinion that the evidence in this trial was susceptible of inconsistent inferences. Therefore, the case was submitted to the jury. The jury found that on May 26, 1965, the Freedom was a vessel in navigation and that the plaintiff was a member of its crew. We think the findings were justified; the defendant thinks otherwise.
The defendant timely filed a motion for judgment n.o.v. which was denied. As we view the problem, it is only in a very clear case in which the evidence is such that there is no room for fair and reasonable men to reach different conclusions on the issues presented, that the court takes questions of fact from the jury. This was not such a case. It appears that each case of this type has been decided on its own peculiar facts, and ordinarily no one feature pertaining to the status of the vessel is determinative. The evidence pertaining to whether the defendant's vessel was in navigation and whether the plaintiff-seaman was a member of its crew contained factual elements such as to make them ones for the jury to consider under appropriate instructions as to the various relevant factors under the law. No objections were made to the instructions by either party.
Where, as here, the evidence is susceptible of inconsistent inferences, jury questions are presented.
It was the function of the jury to resolve the inconsistencies, which was done. In our opinion, the plaintiff was entitled to a trial on the merits on the third count of the complaint and for maintenance and cure, for she has been totally incapacitated since the accident of May 26, 1965.
At the trial on the merits, plaintiff proved that she had developed emphysema while employed by defendant long prior to July 6, 1962. Her claim on the first count was limited to damages for aggravation of this disease caused within the three years prior to filing her complaint on July 6, 1965 (T., p. 6; charge, T., pp. 358-360). Her damages for diminution of earning power were limited to the period following her injuries sustained in a fall on May 26, 1965, involved in the third count, from which injuries she had not recovered at time of trial (charge, T., p. 381). The jury was instructed that she was not entitled to maintenance and cure prior to May 26, 1965
(charge, T., p. 387).
At the trial, after argument (T., pp. 226-237), the defendant's motion for a directed verdict on the second count of the complaint, which alleged an accident occurring in March, 1961, was granted (T., p. 237).
On March 11, 1968, the plaintiff timely filed and served a motion for a new trial. On the same day, the defendant timely filed a motion for judgment in accordance with the motion for directed verdict on the remaining counts (counts 1 and 3) in Civil Action No. 65-716. In our opinion these motions should be denied.
The defendant also filed a separate motion for a new trial in Admiralty No. 65-43, and a separate motion for a new trial as to the remaining counts in Civil Action No. 65-716. The plaintiff moved to strike the defendant's post-trial motions because untimely served. We think plaintiff's motion to strike the ...