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Rivers v. Union Carbide Corp.

decided: April 30, 1970.


Forman, Seitz, and Adams, Circuit Judges.

Author: Forman


FORMAN, Circuit Judge.

This is an appeal from a judgment of the United States District Court for the Eastern District of Pennsylvania entered pursuant to a jury verdict in favor of James E. Rivers, appellee, and against Union Carbide Corporation,*fn1 appellant, in the amount of $6,000. The action was instituted in admiralty under the Jones Act, 46 U.S.C.A. ยง 688, for damages resulting from a fall by Mr. Rivers, allegedly caused by the negligence of Union Carbide, and the unseaworthiness of its vessel, the SS R. E. Wilson. The jury returned a verdict in the form of answers to interrogatories, finding that Union Carbide's vessel was not unseaworthy, Union Carbide was negligent and Mr. Rivers was contributorily negligent. There were no post-trial motions. The only issues raised by this appeal revolve around hospital records offered in evidence by Union Carbide and rejected by the District Judge.

At trial the following facts were elicited on direct and cross-examination from Mr. Rivers who was the only witness in his behalf to testify to the facts leading up to the accident: that he reported for work late in the afternoon of June 30, 1964, and was ordered by Mr. Finley R. Parker, the Ship's Steward, whom he met at the gangway, to return for duty the next morning, July 1st; that he left the shipyard in the company of Mr. Parker and other members of the crew stopping off for a couple of drinks; that he then invited Mr. Parker to his home for some food at which time no drinks were served; that they then proceeded to Mr. Parker's lodgings where he stated he had only one drink and that next morning, July 1, Mr. Rivers had his daughter drive him, Mr. Parker and the other crewmen to the shipyard where they boarded the vessel at 8 a.m. Mr. Rivers asserted that he first understood the ship would sail July 2 but learned soon after he was on board that it would sail in the afternoon of July 1st. He realized that he was without his gear which he asked Mr. Parker for permission to fetch from his house. When his request was denied he applied to the Master of the vessel who granted it. Upon his return to the ship he found that he had been discharged. He talked about this with Mr. Parker in the galley who remained adamant in his decision that his employment had been terminated. Mr. Rivers then decided to go ashore and discuss the problem with his union representative. He testified that

"just as I stepped out of the galley, over into the pantry, there came this water, and simultaneously, which means that my feet and the water came into contact, and I went up and struck this shoulder and my head, one side and I became dazed."

As he was falling he noticed a pantryman with "apparently a pitcher or a bucket."

As a result of the accident Mr. Rivers suffered a dislocation of the right shoulder and a fracture of its greater tuberosity. He remained in the hospital from July 1 to July 13 when he was discharged. He was declared to be fit for duty on October 27, 1964. Mr. Rivers denied that he was acutely intoxicated at the time he was admitted to the hospital and asserted that he did not give the hospital officials any information then for he was too dazed. He recalled, however, that on the following morning (July 2) he told the doctor how the accident occurred and that he had been drinking on the evening prior to the day of the accident.

Mr. Parker was the only witness called by Union Carbide to testify to the facts leading up to the accident. His recollection of the events differed sharply from that of Mr. Rivers. Concerning the incidents on the evening of June 30th, he testified that after leaving the shipyard Mr. Rivers and he stopped at a place and had four or five "pretty heavy drinks"; that during the visit at Mr. Rivers's home he, Mr. Rivers, consumed more than one drink; that later at his, Mr. Parker's, lodging Mr. Rivers had a few more drinks and that the conversation of the evening of June 30th disclosed that Mr. Rivers was aware that the ship was to sail on July 1st. Mr. Parker further testified that he denied Mr. Rivers's request to go ashore in the morning of July 1st because his services were urgently required in the mess hall but he told Mr. Rivers he would be permitted to leave the vessel in the afternoon; that upon learning that Mr. Rivers had gone ashore without his permission he discharged him and requested the union to furnish a replacement; that upon the return of Mr. Rivers, he, Mr. Parker, encountered him in the mess hall where Mr. Rivers seemed to be "half asleep"; that he smelled alcohol on Mr. Rivers's breath and noticed that he was having difficulty speaking; that he escorted Mr. Rivers to the Captain's quarters where he explained the circumstances and left; that approximately 45 minutes later he learned of Mr. Rivers's fall and went to the mess hall; that he saw no water on the deck and that the routine scrubbing had been done the day before.

In a statement Mr. Parker gave to the Union Carbide's representative 24 days after the accident he did not mention that Mr. Rivers was intoxicated. His explanation was that he did not feel that it was necessary because Mr. Rivers was his friend and that the statement would be on Mr. Rivers's permanent record. He conceded that immediately after the accident Mr. Rivers traversed a catwalk approximately 250 feet long without assistance.


Union Carbide attempted to substantiate its witness's testimony by offering into evidence records of the United States Public Health Service Hospital at Savannah, Georgia, relating to the admission of Mr. Rivers and his subsequent treatment. A page numbered 77 of the hospital record entitled "Clinical Record, History -- Part I," under the caption "Nature and Duration of Complaints (include circumstances of admission)," it was stated: "55 yr old NM [negro male] acutely intoxicated." On the same page under "History of Present Illnesses" it was stated "Started drinking tues. evening. Wed. morning arm was not broken next thing pt. [patient] remembers was waking up 7/2 [the 2 was written over a 3 or vice versa]." The page, numbered 76, entitled "Clinical Record, Narrative Summary," prepared from the day by day Clinical Record, stated under the rubric "History" that the "Patient was admitted acutely intoxicated." Mr. Rivers's counsel objected to the admission of the records as being highly prejudicial and conclusory since the statements were unsupported by facts and the "Narrative Summary" was dated three months after the accident.*fn2 The District Judge held that the records were inadmissible, except that he did admit in evidence Mr. Rivers's proffered one page abstract of the hospital records entitled "Statement of Patient's Treatment" which contained no mention of intoxication.*fn3

On appeal it is the contention of Union Carbide that the hospital records in their entirety should have been admitted into evidence. It argues that they were properly ...

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