Murrah*fn* Freedman,*fn** and Van Dusen, Circuit Judges.
This appeal is from a February 18, 1970, order of the District Court of the Western District of Pennsylvania which granted defendant's motion for summary judgment and dismissed plaintiff's complaint as barred by the statute of limitations and laches.
The plaintiff, Mr. Burke, filed a complaint under the Jones Act*fn1 on December 31, 1968, alleging that he was employed by defendant as a seaman on June 18, 1958, on its motor vessel Gateway Clipper. He further alleged that while the vessel was at the landing of the Dravo Corporation at Neville Island, Allegheny County, Pennsylvania, on the Ohio River, he sustained personal injuries to his spine, back, neck, head, arms, legs, central nervous system (also suffering a traumatic neurosis), when he was caused to exert extraordinary force to remove a row of seats which had become stuck on the deck and had thereby lost his balance, slipped and fell backwards against the bulkhead.
Plaintiff asserts that defendant is liable because of its negligence under the Jones Act and for unseaworthiness under the maritime law.
Since plaintiff's complaint was filed more than ten years after the alleged injuries were sustained, he also asserts in his complaint that he was not guilty of laches and that the:
"State [sic] of Limitations is tolled for failure to bring this action within three years of the accident * * * [because of] the conduct and representations of the defendant and its insurance carrier * * *."
The plaintiff's complaint contains a second count in which he claims maintenance and cure from the defendant and damages for failure to furnish them after the injury was sustained.
Mr. Burke requested a jury trial in his complaint and so did the defendant in its answer.
The defendant took a deposition from Mr. Burke with the presence and full participation of Burke's counsel, at which he gave his reason for waiting so many years to bring this suit as:
"Well, basically, sir, at the time this happened I was twenty-two years old, not too smart apparently, and I thought a very, very, good friend of both John Connelly's [president of the defendant] and Jack Goessling's [master of the Gateway Clipper], that they were close personal friends and they told me that I had nothing else coming to me other than my doctor and hospital bills and to apply for unemployment, and I took it as such -- I didn't know any better."
The deposition more fully elaborates the circumstances and content of the conversations between Mr. Burke and Connelly and Goessling.
The defendant then filed a motion for summary judgment, incorporating the transcript of Burke's deposition, on the ground that the plaintiff was guilty of laches and that, on the basis of the plaintiff's own testimony the issue was of such a nature that it was proper for the court to decide the matter.
The trial judge directed the parties to file briefs, after which, without hearing any argument by counsel or filing an opinion, the court issued the order which is the subject of this appeal. Because of this procedure, which has apparently been regularly followed by the district judge but which was disapproved by this court in April 1970 by our decision, which was not available to such judge at the time of the February 1970 order, in Season-All Indus., Inc. v. Turkiye Sise Ve Cam Fabrik., A. S., 425 F.2d 34, 39 (3d Cir. 1970), we have concluded, reluctantly, that it will be necessary ...