# Joseph Walters v. Moore-Mccormack Lines, Inc. > Court of Appeals for the Second Circuit · October 23, 1962 · 309 F.2d 191 URL: https://www.frixlaw.com/law-library/cases/9448877 ## Case - **Full name:** Joseph WALTERS, Plaintiff-Appellant, v. MOORE-McCORMACK LINES, INC., Defendant-Appellee - **Court:** Court of Appeals for the Second Circuit - **Decided:** October 23, 1962 - **Citations:** 309 F.2d 191; 1962 U.S. App. LEXIS 3857 - **Precedential status:** Published - **Opinion:** Dissent by Friendly - **Judges:** Lumbard, Friendly, Kaufman - **Cited by:** 26 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9448877 ## Opinion text FRIENDLY, Circuit Judge (dissenting). As we must all agree, Walters is entitled to recover if Shannon had “a wicked disposition, a propensity to evil conduct, a savage and vicious nature”, but not if the latter perpetrated only an “assault within the usual and customary standards of the calling.” Boudoin v. Lykes Bros. S. S. Co., 348 U.S. 336, 340 , 75 S.Ct. 382 , modified 350 U.S. 811 , 76 S.Ct. 38 (1955). Walters submitted evidence, of which more below, designed to show that Shannon’s assault was of a degree of violence outrunning “the usual and customary standards of the calling” and indicating “a wicked disposition” etc. ■ Defendant denies that the facts were as Walters and his witnesses testi- *196 fled and argues also that, in view of the absence of evidence of previous or subsequent misbehavior by Shannon, the inference of a wicked disposition should not be drawn even if they were. These would seem to me the kinds of issue which, under the Jones Act, 46 U.S.C. § 688 , a jury ought to try. My brothers conclude they are not, because in those seamen’s assault cases that have been held to warrant submission to a jury on a claim of unseaworthiness, “the hallmark has been either an assault with a dangerous weapon or independent evidence of the assailant’s exceptionally quarrelsome nature, his habitual drunkenness, his severe personality disorder, or other similar factors.” “The tendency of the lawyer,” Lord Devlin has reminded us, “is always to codify,” Samples of Lawmaking (1962), 47. In some ways this is highly useful — by stating that a case exhibiting any one of a list of factors is suitable for submission to the jury, appellate courts save time and trouble both for the trial courts and for purposes of review. It is quite another matter when such a catalogue is deemed exclusive. Appellate prescience can hardly anticipate all the syndromes whence the conclusion of “a savage and vicious nature” may properly be drawn. The same reason that makes it legitimate for a jury to draw such a conclusion from the mere fact that the assault is with a dangerous weapon — namely, the permissible inference that the intent was not merely to brawl but to maim or even kill — may likewise apply when the assault bears other indicia of viciousness. My brothers seem to go at least part of the way toward recognizing this; they “do not pass on whether there can not be an assault that is of such a vicious nature as to warrant a finding that the assailant had a character which rendered the ship unsafe, even if he does not use a dangerous weapon.” I think we are obliged to pass on this question, to answer in the affirmative, and to hold this to be such a case, Taking plaintiff’s version of the incident as we must, 1 Shannon’s attack was wholly unprovoked, was directed against a man thirty pounds lighter whose hands were filled with dishes, was carried out with great force, was pursued in the absence of any defense to the point of a paralyzing strike at the neck, and then was continued after Walters had fallen, in Easom’s words, “like he [Shannon] was a maniac or something and panting and just looked like he was going to kill the man.” I take it my brothers would have to agree that if, on the next day, Shannon had assaulted another seaman, Walters II, even in a much less violent fashion and with less serious consequences, the incident to Walters I would be enough for Walters II to get.to the jux-y although the incident to Walters II considered alone would not. This seems to me exceedingly curious even in a field of law where the differing results often appear unrelated either to the exigency of the needs of plaintiffs or the quality of the conduct of defendants. That the shipowner knew or had reason to know of the assailant’s viciousness is, we must remember, no part of the plaintiff’s case. See Keen v. Overseas Tankship Corp., 194 F.2d 515 (2 Cir.), cert. denied, 343 U.S. 966 , 72 S.Ct. 1061 (1952). Yet, under today’s decision, the victim of a truly vicious attack cannot recover because the jury is not permitted to find the attacker was vicious, although, because of his misfortune, the subject of a less vicious one can! If the peculiar viciousness of an attack is enough evidence of “a wicked disposition” etc. to send a second milder incident to the jury, I think it is enough to send the first. If it were argued that the jury ought not be permitted to make such a finding in either case without the aid of expert psychiatric testimony, Salem v. United States Lines Co., 370 U.S. 31 , 82 S.Ct. 1119 , 8 L.Ed.2d 313 (1962), seems to answer that. In the related field, of incompetent personnel, I should suppose that a single act sufficiently egregious, for ex *197 ample, a master’s leaving the bridge in. charge of a cabin boy on a foggy night, would warrant submission of the issue of unseaworthiness to a jury, although a mere error of judgment, even though negligent, would not. In Jones v. Lykes Bros. S. S. Co., 204 F.2d 815 (2 Cir. 1953), relied on by the majority, the district judge had construed the recently decided case of Keen v. Overseas Tankship Corp., supra, as imposing liability for unseaworthiness in the case of every assault save when the attack was in defense of one’s self or others or upon sufficient provocation, 108 F.Supp. 323, 326-327 (S.D.N.Y.1952). Such a reading quite clearly went too far. Jones’ brief on appeal sought to sustain the judgment primarily on grounds of negligence, specifically “that the employer is liable for the negligent act of the employee in breaching its obligation to keep the peace * * According to his testimony Jones fell from a single blow to the cheekbone, following on a series of altercations between Hunter and himself, and the point that viciousness on the part of Hunter could properly be inferred from the “pounding” after Jones was down was not argued in Jones’ brief. If the Jones decision is not thus sufficiently distinguished, I should have to regard it as inconsistent with the illumination later shed by the Supreme Court in Boudoin, despite the approving citation there of some of Judge Hand’s language in Jones. It may well be that, as was suggested at the argument, a reversal here would have the practical effect of sending every injury from a seaman’s brawl to the jury, since, to put the matter politely, a plaintiff’s recollection tends to evolve in a direction favorable to his interests. But that is no basis for our refusing to follow announced principles to their logical conclusion, even though it may increase the need for Congress’ accomplishing the revision of the law in this area that is so long overdue. See Mr. Justice Harlan, dissenting, in Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 572-573 , 80 S.Ct. 926 , 4 L.Ed.2d 941 (1960). I would reverse. . It was corroborated in considerable degree by three other witnesses, Bikel, Felix and Easom. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9448877. Public record. Not legal advice.