Petition — Oldendorf v. Lopez

Supreme Court, U. &

‘me FILED A

APR 8 977

MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM 1976

EGAN OLDENDORF,

Petitioner,

vs.

BENITO LOPEZ, INTERNATIONAL TERMINAL OP-

ERATING CO., INC., ann HOFFMAN RIGGING AND

CRANE SERVICE, INC.

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

Victor S. CIcRANOwICZ

Counsel for Petitioner

80 Broad Street

New York, New York 10004

TABLE OF CONTENTS

PAGE

Citations to Opinions Below ...................... 1

D ̃˙ *r. ˙¹Ü 0. 2

Z 2

D . A eee 2

Reasons for Granting the Writ 7

. ˙•7 5j rr i. 12

Appendix:

Opinion of Court of Appeals Al

Amended Judgment of Court of Appeals .......... A8

Order Denying Petition for Rehearing ............ 40

Excerpts From Transcript of Trial (Findings of

,, A A2

D, ̃ eG ae en nT Ea 421

ii TABLE OF AUTHORITIES

‘Cases: PAGE

Atkinson v. United States, 297 U.S. 157 (1936) .... 7

Cooper Stevedoring Co., Inc. v. Kopke, 417 U.S. 106

E domain es ennadtinwencweestess 10, 12

De Gioia v. United States Lines Company, 304 F.2d

/ bieseca dudes tees 9

D/ Ove Skou v. Hebert, 365 F.2d 341 (5 Cir. 1966). . 9

Frieze v. West American Ins. Co., 190 F.2d 381 (8 Cir.

b 11

Great Lakes Dredge d Dock Co. v. Huffman, 319 U.S.

D d tens 10

Hartnett v. Reiss Steamship Company, 421 F. 2d 1011

(2 Cir. 1970), cert. den. 400 U.S. 852 (1970) 5, 8,9

Hill York Corp. v. American Franchises Inc., 448

e 8

Hormel v. Helvering, 312 U.S. 552 (19411) 9,11

International Terminal v. Nederl, 393 U.S. 74 (1968) 9

Italia Societa v. Oregon Stevedoring Co., 376 U.S. 315

r ˙ ‚öʒwadnd ser Vineeuess 9

Randall Foundation v. Riddell, 244 F.2d 803 (9 Cir.

. 8

Ryan Stevedoring Co. v. Pan-Atlantic Steamship

e Scccceadcccccuctedeus 8,9

Singleton v. Wulff, 428 U.S. 106 (1976) ............ 12

Smith v. American Guild of Variety Artists, 368 F.2d

, „TTT oes uneneee baeensuss 7

Turner v. City of Memphis, 369 U.S. 350 (1962) ..... 12

United States v. Tyrrell, 329 F. 2d 341 (7 Cir. 1964) 7

United States v. United States Gypsum Co., 33 U.S.

D eee 11

TABLE OF AUTHORITIES ili

PAGE

Usner v. Luckenbach Overseas Corp., 400 U.S. 494

— ei tid hone —·ðmW 55 6

Zenith Radio Corp. v. Hazeltine Research, Inc., 395

, ... 11

Statutes and Rules:

Federal Rules of Civil Procedure (28 U.S. C. A.):

D ̃ ͤ»A eh bcune bess 11

r ²˙ A » nnn. 2

Federal Rules of Appellate Procedure (28 U.S. C. A.):

btb 12

Z cd ob eed eede 66s6 deus cu un 6oneeer 11

r bree „ 11

Iw THE

Supreme Court of the United States

OCTOBER TERM 1976

>

Eoan OLDENDORF,

Petitioner,

vs.

Bxxrro Lopez, IxTERNATTON AL. TERMINAL Orperatine Co.,

Ixc., and Horrman Rieornc anp Crane Service, Inc.,

Respondents.

sé.

. 4

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

Petitioner, Egon Oldendorf, respectfully prays that a

writ of certiorari issue to review the judgment of the

United States Court of Appeals, entered in the above

entitled case on the 9th day of December, 1976, and the

order of said Court denying rehearing entered on the 10th

day of January, 1977.

Citations to Opinions Below

The opinion of the Court of Appeals, printed in the

Appendix hereto, infra Al-A7, is not as yet officially re-

ported. The District Court rendered no written opinion

or decision. Its decision and findings are contained in the

portions of the record which are printed in the Appendix

hereto, infra A12-A20.

2

Jurisdiction

The judgment of the Court of Appeals was entered on

the 9th day of December, 1976. Rehearing was denied on

the 10th day of January, 1977. The jurisdiction of this

Court is invoked under 28 U.S. C., Section 1254(1).

Questions Presented

1. Where a judgment is entered in a District Court in

accordance with the clear and explicit findings of the trial

judge and after a hearing at which all parties were invited

to assist the Court in formulating the judgment and were

afforded an opportunity to interpose their objections, may

a Court of Appeals, under the guise of the power to raise

and decide issues sua sponte, disregard the record and

the law on which the Court and parties relied, make its

own findings and reverse the judgment on issues which

were not raised, briefed or argued in the Court of Appeals

or in the trial court?

2. Whether the right to claim error on appeal is waived

when a party does not except to a jury instruction on a

theory of liability, after said party has made its position

known to the Court by moving to dismiss the cause of

action under that theory in accordance with Rule 50,

F.R.C.P., 28 U.S. C. A., infra A21, and the Court has denied

said motion?

Statement

This case arises out of an accident which was sustained

by a longshoreman on board petitioner’s vessel at the com-

mencement of the discharge of a cargo of steel I beams

from the #1 hatch of said vessel. No ship’s personnel or

equipment was in any way involved in the discharging

operation. It was conducted by and under the direct su-

pervision of longshoremen in the employ of International

3

Terminal Operating Co., Inc., (ITO), with the assistance

of a shoreside mobile crane which ITO had hired together

with an operator from Hoffman Rigging & Crane Service,

Ine. (Hoffman).

The accident occurred shortly after the longshoremen

had mad up and hooked a draft of steel I beams to the

cargo hook of the crane. A signalman, employed by ITO

whose function was to act as the “eyes and ears” of the

crane operator, then instructed the crane operator to raise

the draft of I beams. Instead of raising the draft, the

crane operator dragged the draft from one side of the

hatch to the other over and across the cargo of steel I

beams which were stowed in the hatch. As a result, one of

the I beams which was stowed in the hatch became dis-

lodged and fell over on the injured longshoreman’s leg.

While the draft was being dragged across the cargo in the

hatch, the signalman stood by and did nothing. After the

accident occurred, the signalman instructed the crane op-

erator to stop and the crane operator stopped the

operation.

The only issues on which the case was tried against peti-

tioner was whether the lashings and chocks by means of

which the cargo of steel I beams had been secured from

shifting during the ocean voyage had been removed by

ship’s personnel prior to the commencement of the dis-

charging operation, and if so, whether this rendered the

vessel unseaworthy and the shipowner negligent. These

issues were tried to a jury with counsel for all parties

participating.

Petitioner’s third party actions for indemnity against

ITO and Hoffman, as well as ITO’s and Hoffman’s cross-

claims for indemnity or contribution against each other

were tried to the court.

The jury, on a special verdict, found that the removal

of the lashings and chocks by means of which the cargo of

steel beams was secured for the ocean voyage did not

4

render the vessel unseaworthy, but that shipowner, never-

theless, was negligent. It assessed damages at $365,000.00

and found that the injured longshoreman was contribu-

torily negligent to the extent of 15%. Because of this, the

recovery was reduced to $310,250.00.

Following the return of the jury verdict, the court

granted the injured longshoreman’s motion to amend his

complaint and assert a direct negligence action against

Hoffman. This action, together with the shipowner’s ac-

tions for indemnity and the cross-claims of ITO and Hoff-

man, was then set for further trial.

After petitioner rested on the third party claims, the

trial court granted recovery to petitioner against ITO “for

the amount of the judgment against you plus counsel fees”,

infra A12.

On the completion of the testimony in the injured long-

shoreman’s direct action against Hoffman, the trial court

found the crane operator was negligent and that Hoffman

was liable to plaintiff and awarded recovery against Hoff-

man for the damages as assessed by the jury, infra

Al13-Al4.

In the course of extensive colloquy between court and

counsel, the court emphasized that ITO’s liability by way

of indemnity was for the full amount of the damages which

had been assessed against petitioner, infra A1l2, Al6. It

stated, however, that in “fairness and equity and justice,

half of the damages ought to be borne by the steve-

dore and half of the damages ought to be borne by Hoff-

man, the crane operator”, but indicated uncertainty as to

how to formulate a judgment to accomplish this result,

infra Al4. All counsel were in complete agreement that

the indemnity awarded petitioner could be apportioned

between ITO and Hoffman, infra A14-A18. The only

dilemma which arose was in the context of apportioning

the damages between ITO and Hoffman in the injured

longshoreman’s direct action against Hoffman, infra A18.

Counsel for ITO suggested that since the court, as an ad-

5

miralty court had equity powers, it might dispense equity

so that Hoffman would not be obligated for the judgment

in full infra A17. After reading the decision in Hartnett

v. Reiss S. S. Co., 421 F.2d 1011 (2 Cir. 1970), cert. den. 400

U.S. 852 (1970), the trial court indicated satisfaction that

the indemnity award to petitioner could be apportioned be-

tween ITO and Hoffman by stating:

“In a situation very similar to our own, the Court of

Appeals approved an equal decision of liability as

between parties who correspond to ITO and Hoffman

here.” Infra A18.

Final judgment was then entered against petitioner

which provided, that if petitioner paid the judgment, it

was to recover 50% each from both ITO and Hoffman. If

Hoffman paid the judgment, it was awarded 50% contribu-

tion from ITO. The provision awarding counsel fees was

stricken from the judgment and all other cross-claims were

dismissed.

All parties filed notices of appeal from the judgment.

The injured longshoreman’s appeal was subsequently with-

drawn.

ITO appealed from the indemnity award to petitioner

solely on the basis of the long rejected tort concept that

a negligent shipowner is not entitled to an implied war-

ranty of workmanlike service. It appealed from the award

granting 50% of the damages which the judgment assessed

against Hoffman on the grounds that this apportionment

constituted contribution as between ITO and Hoffman.

ITO further urged that it should be awarded full indemnity

against Hoffman or, in the alternative, that its damages be

in proportion to its fault, i.e., 15% of the total award.

Petitioner appealed from the judgment on the ground

that as a matter of law, it was error to submit the case to

the jury because neither under the warranty of seaworthi-

ness nor the theory of negligence, was a shipowner ob-

ligated to furnish an accident free ship, and because under

this court’s decision in Usner v. Luckenbach Overseas

Corp., 400 U.S. 494 (1971), a shipowner is not lable for a

wholly unforeseeable single act of negligence of a third

party. It also urged that the jury’s findings of negligence

and no unseaworthiness was inconsistent because there

could be no negligent breach of a duty in the absence of the

very underlying condition from which that duty arose.

Petitioner also appealed from the denial of defense costs,

including reasonable counsel fees.

Not withstanding the fact that ITO did not raise, brief

or argue either in the trial court or on appeal, that by ap-

portioning the indemnity award equally between ITO and

Hoffman, the trial court was in effect awarding contribu-

tion. The Court of Appeals sua sponte construed the

apportionment as in the nature of contribution and held

that the apportionment constituted a constructive denial of

indemnity. Not content to rest its reversal on that ground,

the court went further and stated, “We agree that Oxpen-

poRFF is precluded from obtaining indemnity from ITO

* * * since between them OLpENporFF was the party best

situated to adopt preventative measures and thereby to

reduce the likelihood of injury.“ It is not clear with whom

the court was agreeing as that issue was not pleaded or

raised in the court below and had not been raised, briefed

or argued in the Court of Appeals.

Petitioner filed a petition for rehearing on December

23, 1976. In said petition, petitioner directed the court’s

attention to the portion of the record in which the trial

court held specifically that it was awarding petitioner full

indemnity against ITO and reiterated that the award

against ITO was by way of indemnity and not contribution.

Petitioner also directed the court’s attention to the fact

that conduct precluding indemnity was never raised in the

court below or in the appeal.

The Court of Appeals denied the petition for a rehear-

ing on January 10, 1977 without comment.

7

Reasons for Granting the Writ

1. The action of the Court of Appeals in this case

undermines the fairness and integrity which our judicial

proceedings are designed to assure and preserve. If a

Court of Appeals, under the guise of judicial discretion,

is permitted to arrive at a bizarre result by distorting the

clearly expressed resolution of a litigated controversy by

misinterpreting the law and disregarding the record then

the very foundation of our system of administering justice

would be eroded and the safeguards which were designed

to promote the ends of justice would be rendered mean-

ingless.

The reversal by the Court of Appeals of the portion of

the judgment awarding indemnity to petitioner against

ITO on the basis of a sua sponte determination of issues

not presented to the District Court and not raised on the

appeal was clearly in violation of the basic principles on

which the proper and orderly administration of justice is

predicated and constituted an unwarranted and unauthor-

ized exercise of judicial power.

The generally accepted rule in all jurisdictions is that

questions, except when they involve jurisdiction, which

have not been passed on in the trial Court and not raised,

briefed or argued on appeal, will not ordinarily be given

consideration by an Appellate Court. United States v.

Tyrrell, 329 F. 2d 341, 345 (7 Cir. 1964) ; Smith v. American

Guild of Variety Artists, 368 F.2d 511, 514 (8 Cir. 1966).

As this Court said in Atkinson v. United States, 297 U.S.

157, 159 (1936):

“This practice is founded upon considerations of fair-

ness to the Court and to the parties and of the public

interest in bringing litigation to an end after fair

opportunity has been afforded to present all issues

of law and fact.”

In this case, even though the record clearly showed that

the trial Court awarded petitioner full recovery against

ITO and was explicit that it was by way of indemnity and

not contribution, infra Al2, A16, A19, the Court of Appeals

disagreed with the trial Court and sua sponte concluded

that, even though the trial Court had styled it as indemnity,

it was more in the nature of contribution, infra A6.

Furthermore, even though the trial Court was clear and

explicit that it was limiting ITO’s liability for indemnity

in the judgment to 50% because “fairness and equity and

justice” would be served if half of the damages were borne

by ITO and half by Hoffman and such an equal decision

of liability as between parties who correspond to ITO and

Hoffman had been approved in Hartnett v. Reiss Steam-

ship Company, 421 F.2d 1011, 1019 (2 Cir. 1970) cert. den.

400 U.S. 852 (1970), infra Al4, A18 the Court of Appeals

construed apportionment as a constructive denial of in-

demnity pursuant to Ryan Stevedoring Co. v. Pan-Atlantic

Steamship Corp., 350 U.S. 124 (1956), infra A6.

Although the issue of conduct precluding indemnity had

not been pleaded as a defense and had not been raised

either in the trial Court or on appeal, the Court of Appeals

nonetheless again sua sponte found as a fact that peti-

tioner “was the party best situated to adopt preventive

measures and thereby reduce the likelihood of injury”. It

then concluded “We agree that Oldendorf is precluded

from obtaining indemnity from ITO.” even though no one

had neither raised such an issue, nor even intimated that

there was any such issue in this case, infra A6.

While Federal Appellate Courts have power to raise and

decide issues sua sponte, they have no original jurisdiction

and lack power to make findings of fact. Randall Founda-

tion v. Riddell, 244 F. 2d 803, 805 (9 Cir. 1957); Hill York

Corp. v. American Franchises Inc., 448 F.2d 680, 691 (5

Cir. 1971). Since the issue of conduct precluding indem-

nity is a question of fact and not of law, International

9

Terminal v. Nederil, 393 U.S. 74 (1968), the Court of Ap-

peals clearly exceeded its jurisdiction in finding that peti-

tioner was the party best situated to adopt preventive

measures and thereby reduce the likelihood of injury. In

Italia Societa v. Oregon Stevedoring Co., 376 U.S. 315

(1964) on which the Court of Appeals purportedly relied,

this Court reiterated that shipowner negligence was not

fatal to recovery against a stevedore, (376 U.S. at page

320), and held that as between the shipowner and the steve-

dore who has supervision and control over the injury pro-

ducing and defective ecuipment, is in a far better position

than the shipowner to minimize the risk and avoid the ac-

dent, (376 U.S. at nages 323 and 324). At least a trier of

the fact could so find.

Nor does the power to raise and decide issues sua sponte

authorize an Appellate Court to distort the result reached

in a litigated controversy, where considerations underlying

the issues were exposed and distilled by the trial Court,

and substitute its own resolution in disregard of the record

and the decisional law. As this Court held in Hormel v.

Helvering, 312 U.S. 552, 558 (1941) this power may be ex-

ercised only in exceptional cases when it is obvious from

the record that to do otherwise would result in a plain

miscarriage of justice. It is obvious from the record in

this case that the result of the apportionment of the ul-

timate liability by way of indemnity between ITO and

Hoffman was not a plain miscarriage of justice. Not only

did Hartnett v. Reiss Steamship Company, 421 F.2d 1011,

1019 hold that apportionment was proper between parties

who corresponded to ITO and Hoffman in this case, but

such an apportionment was also allowed in De Gioia v.

United States Lines Company, 304 F.2d 421 (2 Cir. 1962)

and D/S Ove Skou v. Hebert, 365 F.2d 341, 351-352 (5 Cir.

1966). Ryan Stevedoring Co. v. Pan-Atlantic Steamship

Corp., 350 U.S. 124 (1956) which the Court of Appeals

cited in support of its finding that apportionment of the

indemnity awarded petitioner between ITO and Hoffman

constituted a constructive denial of indemnity to petitioner

10

supports no such proposition. It held instead, that the

Longshoremen’s and Harbor Worker’s Compensation Act,

33 U.S.C. 905, did not shield the stevedore employer from

liability for indemnity to a shipowner. Cooper Stevedor-

ing Co., Inc. v. Kopke, 417 U.S. 106 (1974) held that con-

tribution between mutual wrongdoers was not prohibited

when it involved a liability which was not shielded by

statute. The Court of Appeals obviously confused the in-

dependent contractual obligation which ITO owed the ship-

owner and the obligation ITO owed its employees.

In any event, the trial Court had apportioned the ulti-

mate liability between ITO and Hoffman and not between

ITO and petitioner. If the apportionment was invalid, it

was invalid only as between ITO and Hoffman and the

Court of Appeals should have awarded petitioner full in-

demnity against ITO in accordance with the findings and

conclusions of the trial Court as judgments are required

to be interpreted in the light of the trial Court’s findings

and onclusions, Great Lakes Dredge d Dock Co. v. Huff-

man, 319 U.S. 294, 295 (1943).

The decision of the Court of Appeals has resulted not

only in a gross miscarriage of justice, but represents a

clear abuse of the powers of Appellate Review and a total

disregard of the basic principles of due process.

2. Clearly the questions are of importance and merit

the exercise of this Court’s supervisory powers to prevent

the further erosion of the rules and legal principles which

have been promulgated and defined in order to preserve

the fairness, integrity and public reputation of judicial

proceedings. When this Court on December 4, 1967

adopted the Federal Rules of Appellate Procedure its

order of adoption provided that these rules are to govern

the practice in appeals to the United States Courts of

Appeals from the United States District Court. These

rules are clear and obviously were intended to serve as

guidelines so that the litigants would have a fair oppor-

11

tunity to be heard and the Courts would not be charged

with errors which they did not commit or with failure to

adjudicate an issue which they were not required to deter-

mine.

These rules recognized that as much as uniformity of

practice and procedure was desired, the inflexible applica-

tion of the rules would lead to injustice or conflict with

the power given under Section 2106 of 28 U.S.C.A. which

allows Federal Appellate Courts to modify, reverse or

remand decisions “as may be just under the circum-

stances”. (Hormel v. Helvering, 312 U.S. 552, 557 (1941).

This appears to have been the intent of F.R.A.P. Rule

1(b), 28 U.S.C.A., which states:

“These rules shall not be construed to extend or limit

the jurisdiction of the Courts of Appeals as estab-

lished by law.”

It is well established law that Federal Appellate Courts

do not have the power to decide factual issues de novo,

Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S.

100, 123 (1969) nor to reverse judgments and substitute

their own judgment unless it is clear from the entire rec-

ord that the judgment is, in fact, clearly erroneous and

that an injustice has been done. United States v. United

States Gypsum Co., 33 U.S. 364 (1948) rehearing denied

33 U.S. 869 (1948). Nor, as the Court said in Frieze v.

West American Ins. Co., 190 F.2d 381, 382 (8 Cir. 1951)

was it intended that under the rules new issues could be

considered on appeal “if the purpose and result would be

reversal of the case unless public policy or the plain mis-

carriage of justice requires.”

Needless to say, Rule 40 of the Federal Rules of Appel-

late Procedure, 28 U.S. C. A., is not without purpose. It au-

thorizes a petition for rehearing to bring to the attention of

the reviewing Court points of law or fact which the Court

may have overlooked. It would seem that a more meaningful

12

compliance with this rule would not leave the writ of cer-

tiorari as the last resort.

3. The decision below appears to be in conflict with ap-

plicable decisions of this Court. In Cooper Stevedoring Co.

v. Kopke, 417 U.S. 106, 109 [2]4 (1974), this Court refused

to consider an issue on the grounds of lack of jurisdiction

because it had not been raised in the petition for a writ of

certiorari. In Singleton v. Wulff, 428 U.S. 106, 120 (1976),

this Court reversed because, although the Court of Appeals

had jurisdiction to proceed on the merits, injustice was

more likely to be caused than avoided by deciding the issue

without affording petitioner an opportunity to be heard,

even if petitioner had no evidence but only legal argu-

ments to offer. In Turner v. City of Memphis, 369 U.S.

350, 352 (1962), this Court vacated an order and directed

entry of a decree granting relief only after assuring itself

that, on the record, no issue remained because the facts

were not in dispute.

This Court's Rule 23(1)(c) is similar in scope and pur-

pose, to Rule 28(a)(2) of the Federal Rules of Appellate

Procedure. It does seem that public interest, if not con-

sistency, requires that the Federal Appellate Court exer-

eise at least the same scrupulous concern which this does

so that litigation may be brought to an end after fair oppor-

tunity has been afforded to present all issues of law and

fact and a controversy is resolved on the record and in ac-

cordance with the law.

CONCLUSION

For the foregoing reasons, this petition for a writ of

certiorari should be granted.

Respectfully submitted,

Victor S. CicHaNnowicz

Coumsel for Petitioner

80 Broad Street :

New York, New York 10004

Al

Opinion of Court of Appeals.

UNITED STATES COURT OF APPEALS

For THe Seconp Cmcurr

Nos. 162, 163, 164—September Term, 1976.

(Argued November 19,1976 Deeided December 9, 1976.)

Docket Nos. 76-7208, 76-7211, 76-7212

*

*

Benito Lopez,

Plaintiff-Appellee,

—against—

Edax OLDENDORF,

Defendant and Third Party

Plaintiff-Appellant and Appellee,

INTERNATIONAL TERMINAL OPERATING Co., INc.,

and Horrman RIGG NG AND Crane Service, Inc.,

Third Party Defendants-Appellanits

and Appellees.

+

bd

Benito Lopez,

Plaintiff-Appellee,

—against—

EAN Ol DEN DORT and Horrman Ricernc &

Crane Service, Inc.,

Defendants-Appellants and Appellees.

dy.

*

A2

Opimon of Court of Appeals.

Before:

Warknuax and Moutuiaan, Circuit Judges,

and PolLAcxꝰ“, District Judge.

,

9

Appeals from a judgment of the United States Distriet

Court for the Southern District of New York, Hon. Inzer

B. Wyatt, Judge, ewarding damages to plaintiff longshore-

man, and awarding indemnity and contribution among the

defendant and third-party defendants.

Affirmed in part; reversed in part.

*

*

Rosert KLoxskx, Brooklyn, New York (DiCos-

tanzo, Klonsky & Cutrona, Brooklyn, New

York), for Plaintiff- Appellee.

Victor S. Cicnanowicz, New York, New York

(Cichanowicz & Callan, New York, New

York), for Defendant and Third Party

Plaintiff-Appellant and Appelle.

JosepH A. Conen, New York, New York (Alex-

ander, Ash, Schwartz & Cohen, New York,

New York, Sidney A. Schwartz, of Coun-

sel), for Third Party Defendant-Appellant

and Appellee.

Rosert S. Bianc, New York, New York (Hill,

Betts & Nash, New York, New York), for

Third Party Defendant-Appellant and Ap-

pellee.

*

9

* Hon. Milton Pollack, United States District Court f the

Southern District of New York, sitting by designation. ™

A3

Opinion of Court of Appeals.

Mou.uican, Circuit Judge:

On October 21, 1968, International Terminal piece

Co., Inc. (ITO), a stevedoring company, and Hoffman

Rigging & Crane Service, Inc. (Hoffman), the owner and

operator of a shoreside crane hired by ITO, were engaged

in unloading a cargo of steel beams from the M/V Jobst

Oldendorf, a vessel owned by Egan Oldendorf. The vessel

was tied up with her portside inshore and her starboard

side offshore. Prior to the arrival of the longshoremen,

the ship’s personnel removed the lashings and chocks which

had secured the stow. The Hoffman crane, operated by

Leo Hogan, was driven onto the pier alongside the hatch

of the vessel and received instructions from an ITO sig-

nalman.

The accident which occasioned this litigation occurred

with the removal of the first draft. The plaintiff Benito

Lopez and three other longshoremen secured the first draft

with chains and attached them to the cargo hook of the

erane. The ITO signalman then instructed Hogan merely

to hoist the hook with the cargo attached. Instead, Hogan

raised the boom of the crane, causing the draft to drag

from the offshore side over to the inshore side. The draft

struck and dislodged a beam which fell over and onto

Lopez’s leg.

Lopez brought suit in the United States District Court

for the Southern District of New York, Hon. Inzer B.

Wyatt, District Judge, against Oldendorf, alleging both

unseaworthiness of the vessel as well as negligence. Olden-

dorf impleaded ITO, Lopez’s employer, and Hoffman, seek-

ing indemnity from both. Hoffman and ITO cross-claimed

against each other, seeking both indemnity and contribu-

tion. During the trial, Lopez was permitted to amend his

complaint to sue Hoffman directly for negligence. The

action by Lopez against Oldendorf was tried to a jury. All

claims among Oldendorf, ITO and Hoffman, as well as

Al

Opinion of Court of Appeals.

Lopez’s action against Hoffman, were tried to the court.

Counsel for all parties participated in the jury trial of the

Lopez action against Oldendorf.

In the jury trial, a special verdict was returned on Feb-

ruary 10, 1976 which provided: a) Lopez failed to establish

his claim of unseaworthiness against Oldendorf, b) Lopez

did establish his claim of negligence against Oldendorf,

c) Lopez’s total damages amounted to $365,000, and d)

Lopez was 15% contributorily negligent. Because of the

last finding, Lopez’s recovery was reduced to $310,250.

The court then undertook the resolution of the remaining

issues. Because of its employee’s 15% contributory negli-

gence, ITO was held to have breached its warranty of

workmanlike service and was obligated to indemnify Olden-

dorf. Hoffman was held liable to Lopez for the negligence

of Hogan in operating the crane. The final judgment made

Oldendorf and Hoffman jointly and severally liable. If

Oldendorf paid the judgment, it was to recover 50% from

both ITO and Hoffman. If Hoffman paid, it was awarded

50% contribution from ITO. Oldendorf was denied coun-

sel fees, and all other cross-claims were dismissed. The

various arguments raised on appeal are considered

seriatim.

Oldendorf makes two arguments for reversal of the

judgment against it. It first contends that there was in-

sufficient evidence to submit the case to the jury, citing

Mitchell v. Trawler Racer, Inc., 362 U.S. 539 (1960) for

the proposition that a ship owner is not required to provide

an accident-free vessel. This is a correct statement of the

law, but the court’s charge to the jury included this quali-

fication. The factual issue was whether the lashings and

chocks had been removed prior to the accident, and if they

were, whether this constituted unseaworthiness or negli-

gence. The resolution of this question, upon which there

was conflicting evidence, was well within the classic function

of the jury.

A5

Opinion of Court of Appeals.

Oldendorf also contends that the verdict was fatally in-

consistent in finding that this act, although not rendering

the vessel unseaworthy, was nonetheless negligent. In this

circuit we have held that every effort must be made to

reconcile such apparently contradictory findings, Henry v.

A/S Ocean, 512 F.2d 401, 405-06 (2d Cir. 1975). Moreover,

although the issue here is close, Oldendorf waived any

claim of error on this ground when it failed to challenge

that portion of the charge which instructed the jury that

“you must consider and make a separate determination as

to this second or alternative theory no matter how you

decide the unseaworthiness theory.”

Hoffman argues that it is not liable because its crane

operator, Hogan, was the borrowed servant of ITO. How-

ever, in a comparable factual setting, the Supreme Court

has held that the mere reception of signals by a winchman

from a stevedore’s foreman did not operate to relieve the

winchman’s employer of liability for the negligence of its

employee. Standard Oil Co. v. Anderson, 212 U.S. 215

(1909). Hoffman also contends that the granting of plain-

tiff’s informal motion to proceed directly against it in

February 1976, without requiring compliance with Fed. R.

Civ. P. 14(a), deprived it of the opportunity to demonstrate

prejudice from the delay in the assertion of this claim.

Aside from its failure to indicate the nature of such preju-

dice, Hoffman was an active participant in the case from

the time of its joinder as a third party defendant in 1969.

The nature of its potential liability having been clear from

the beginning and developed at trial, the motion to amend

the complaint cannot have come as any surprise. Cf. Wastk

v. Borg, 423 F.2d 44, 46 (2d Cir. 1970). Finally, Hoffman

challenges the jurisdiction of the court below to have

entertained the direct action in the face of an absence of

diversity of citizenship between itself and Lopez. However,

{ 4 of the amended complaint clearly indicates that the basis

= “a. a . oe

A6

Opinion of Court of Appeals.

of jurisdiction is the admiralty and maritime nature of

the claim.” Fed. R. Civ. P. 9(h).

ITO contends that it was error to award Oldendorf in-

demnity against it, and to grant Hoffman a 50% contribu-

tion from it. Although the award in favor of Oldendorf

was styled an “indemnity,” it was more in the nature of

contribution since ITO’s liability was limited to 50% of

the damages rather than a full recovery over. In these

circumstances, the court below constructively denied Olden-

dorf indemnity pursuant to Ryan Stevedoring Co. v. Pan-

Atlantic Steamship Corp., 350 U.S. 124 (1956). We agree

that Oldendorf is precluded from obtaining indemnity from

ITO, Hurdich v. Eastmount Shipping Corp., 503 F.2d 397,

401-02 (2d Cir. 1974), since between them Oldendorf was

the party “best situated to adopt preventive measures and

thereby to reduce the likelihood of injury.” Italia Societa

per Azioni di Navigazione v. Oregon Stevedoring Co., 376

U.S. 315, 324 (1964). Since we conclude that Oldendorf is

precluded from obtaining indemnity, the theory upon which

ITO was found liable, we reverse that portion of the judg-

ment granting Oldendorf a 50% recovery from ITO. This

disposition defeats Oldendorf’s claim for attorney’s fees

since while they are recoverable when the ship owner is

entitled to indemnity, DeGioia v. United States Lines Co.,

304 F.2d 421, 426 (2d Cir. 1962), such an award is inappro-

priate where, as here, indemnity is precluded.

Equally unsupportable is the 50% contribution awarded

Hoffman against ITO. Inasmuch as ITO furnished its em-

ployee Lopez with the benefits required by the Longshore-

men’s and Harbor Workers’ Compensation Act, 33 U.S.C.

§ 901 et seq., it is not subject to a claim for contribution.

Cooper Stevedoring Co. v. Frite Kopke, Inc., 417 U.S. 106

(1974); Hurdich v. Eastmount Shipping Corp., supra, 503

F.2d at 400; Williams v. Pennsylvania R.R., 313 F.2d 203,

210 (2d Cir. 1963).

A

Opinion of Court of Appeals.

We therefore affirm that portion of the judgment holding

Oldendorf and Hoffman jointly and severally liable. In

view of the findings below that both were negligent, each

is to bear ultimate responsibility for one-half of the plain-

tiff's damages. We reverse the award of indemnity to

Oldendorf against ITO, as well as the contribution granted

Hoffman from ITO. In view of the eight-year period which

has elapsed since the accident occurred, the mandate shall

issue forthwith.

A8

Amended Judgment of Court of Appeals.

UNITED STATES COURT OF APPEALS

FOR THE

Seconp Cmcurr

At a stated Term of the United States Court of Appeals

for the Second Circuit, held at the United States Court-

house in the City of New York, on the ninth day of De-

cember one thousand nine hundred and seventy-six.

Present: Hon. Strerry R. WaTerRMAnN,

Hon. WAA H. Murundax, C.JJ.,

Hon. Murox Pollack, D..

Cireuit Judges.

76-7208

76-7211

76-7212

—8

Benito Lopez,

Plaintiff-Appellee,

v.

Egan Oldendorf,

Defendant & Third Party

Plaintiff,

v.

International Terminal Operating Co., Inc., Hoffman Rig-

ging and Crane Service, Inc., and Paul Wilson & Co.,

AS.,

Third Party Defendants,

Hoffman Rigging and Crane Service, Inc. International

Terminal Operating Co., Inc.,

Third Party Defendants-Appellants.

+.

*

49

Amended Judgment of Court of Appeals.

4

9

Benito Lopez,

Plaintiff,

v.

Egan Oldendorf and Hoffman Rigging & Crane

Service, Inc.,

Defendant.

*

7

Appeal from the United States District Court for the

Southern District of New York.

This cause came to be heard on the transcript of record

from the United States District Court for the Southern

District of New York, and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now hereby ordered,

adjudged, and decreed that the order and judgment of said

District Court be and they hereby are affirmed in part

and reversed in part in accordance with the opinion of

this court, with costs to be taxed against defendants-ap-

pellants-appellees, Egan Oldendorf and Hoffman Rigging

and Crane Service.

A. DANIEL Fvusaro, Clerk

by: Vincent A. Carin

Chief Deputy Clerk

Tre

Al

Order Denying Petition for Rehearing.

UNITED STATES COURT OF APPEALS

Serono Cmcurr

At a Stated Term of the United States Court of Appeals,

in and for the Second Circuit, held at the United States

Court House, in the City of New York, on the tenth day

of January, one thousand nine hundred and seventy-seven.

Present:

Hon. Sterry R. WaTrRRMAN

Hon. WILIA H. Murad

Circuit Judges

Hon. Muro Pouiack

District Judge

76-7208

Benito Lopez,

Plaintiff-Appellee,

v.

Egan Oldendorf,

Defendant and Third-Party

Plaintiff-Appellant-Appellee,

V.

International Terminal Operating Co., Inc., et al.,

Third-Party Defendants,

Hoffman Rigging and Crane Service, Inc., International

Terminal Operating Co. Inc.,

Third-Party Defendants-Appellants.

+.

_

All

Order Denying Petition for Rehearing.

—

*

Benito Lopez,

Plaintiff-Appellee,

v.

Egan Oldendorf and Hoffman Rigging & Crane

Service, Inc.,

Defendants-Appellants.

.

*

A petition for a rehearing having been filed herein by

counsel for the appellant-appellee Egan Oldendorf,

Upon consideration thereof, it is

Ordered that said petition be and hereby is denied.

A. Dax m. Fusaro

A. Daniel Fusaro

Clerk

Al2

Excerpts From Transcript of Trial

(Findings of Wyatt, U.S.D.J.).

(13) Mr. Cichanowiez: As far as the shipowner is con-

cerned now on the third party claims, I rest.

The Court: All right. You are entitled to a judgment

for the amount of the judgment against you plus counsel

fees, and we won’t enter the judgment offer until Mr.

Cohen or Mr. Schwartz have had a chance to review the

matter and discuss it.

It would be better if you could agree on the matter of

counsel fees, but if you can’t I will have to fix it.

All right.

* a „ e * 0

(111) The Court: All right. What is next?

Mr. Blanc: Hoffman rests, your Honor.

The Court: All right.

Anything else?

Mr. Schwartz: May I have a moment to see whether

I have any rebuttal? I don’t know about Mr. Klonsky.

Mr. Klonsky: I have no rebuttal.

The Court: Ali right, Mr. Schwartz.

(Pause.)

Mr. Schwartz: I don't know the sequence of things,

but since I spoke last, ITO rests, your Honor.

The Court: All right.

Does anybody else want to offer anything!

Mr. Cichanowiez: No, your Honor.

Mr. Klonsky: I just would like the court to take judi-

cial notice of the pleadings with respect to the participa-

tion of Hoffman in the trial in the main as well as in the

claim offer.

The Court: Oh, yes.

Mr. Schwartz: I should have said before I rest, I think

it is manifest, though, that with respect to tie issue that

we are trying at this time, that all of the testimony that is

ee one eee tee amep te a

ee —— —

Al3

Excerpts From Transcript of Trial

(Findings of Wyatt, U.S.D.J.).

in this case thus far, (112) including that of Mr. Gomez

taken on February 4, 1976, is before your Honor on the

third-party complaint.

The Court: On the claim of the plaintiff against Hoff-

man, I am bound to find, and find, that Hoffman is liable

to the plaintiff.

I am persuaded that the raising of the boom by Hoff-

man was negligent, and the testimony today of the Hoff-

man crane operator confirms that he topped the boom, that

is, he brought it up higher, elevated the head of the boom,

without any signal from the signalman.

He says that he gave a signal himself. He made the

decision to do it and gave a signal to the signalman.

Of course, normally the signalman’s back was turned

to the crane operator.

He says that he stopped. What he stopped, I don’t know

what he refers to, whether he means he stopped tightening

the fall or winding the cable, or whether he means he had

started topping the boom and stopped topping it. But

he says that when he stopped the crane operation, that

caused the signalman to turn around and look at him, and

he then gave a signal to indicate that he was going to

elevate the head of the (113) boom.

I notice that in Plaintiff’s Exhibit 13 and ITO Exhibit D

—and ITO Exhibit D, at least, was a statement of the crane

operator made on the very day of the accident—there is

no mention of elevating the head of the boom in any way,

shape or form, and there is no mention of any signal from

the crane operator to the signalman that he was going to

do so.

On the other hand, the testimony of Gomez, the signal-

man, is quite explicit. For some reason we have been

furnished, or the clerk has a copy, or there is in the clerk’s

file, a transcript of the testimony of Gomez, and on cross

examination by Mr. Cohen, at least, Gomez unequivocally

Al4

Excerpts From Transcript of Trial

(Findings of Wyatt, U.S.D.J.).

says that the tip of the boom was raised, the boom was

topped without any signal from him, Gomez. That, of

course, is confirmed by the Hoffman crane operator. |

Of course, Gomez says nothing whatever about any sig-

nal from the crane operator that that’s what he was going

to do, and Gomez says nothing about anything being

stopped and his turning around to look at the crane

operator.

I am bound to say that elevating the tip of the boom

caused the sliding motion inshore of the (114) draft which

hit one of the I-beams, which in turn fell on the plaintiff

and caused the accident. So I am bound to say that the

plaintiff has established liability on the part of Hoffman.

As to all the other issues in the case and how we resolve

this, fairness and equity and justice, it seems to me, are

served if the recovery of the plaintiff or if half the dam-

ages—and if it is necessary to fix damages I am going to

accept the jury’s verdcit in that respect—half of the dam-

ages ought to be borne by the stevedore and half of the

damages ought to be borne by Hoffman, the crane operator.

In the midst of all this welter of Second Circuit law,

claims, counterclaims and cross claims and direct claims,

I don’t know how I can pick my was to accomplish that

result, but that is what I have to figure out.

Mr. Klonsky, do you know how it can be done?

If I give you a judgment in the full amount against

Hoffman and you got a judgment in the full amount against

the shipowner, obviously you can’t recover twice.

Mr. Klonsky: That’s right.

The Court: What happens? Do you then (115) have

your choice as to whether you collect everything against

Hoffman?

Mr. Klonsky: I have no choice, your Honor. But I

would defer to Mr. Schwartz, who has much more experi-

ence in third-party cases than I have.

— es 0 ESOS

Al5

Excerpts From Transcript of Trial

(Findings of Wyatt, U.S.D.J.).

I usually stop when I sue the defendant. I have no in-

terest in going beyond ordinarily. But Mr. Schwartz has

been beyond many times and I would defer to his thoughts

on this subject, your Honor.

Mr. Schwartz: I refuse to be amicus to the plaintiff,

your Honor.

The Court: But you ought to be amicus, Mr. Schwartz,

to the court.

Mr. Schwarz: I think there is something else that you

might take into consideration, your Honor.

I don’t think you are making new law or it is pioneer

justice ; I think it is a question of equity too, as your Honor

indicated.

Your Honor has indicated at the outset of today’s ses-

sion that we are being held—when I say “we,” it is ITO—

are being held liable because the negligence of our em-

ployees is imputable to us and which constitutes a breach

of the warranty of workmanlike (116) services that we

owe the shipowner.

The Court: That’s right, under Rodriguez.

Mr. Schwartz: Your Honor cited our own Rodriguez

ease, which has just been decided.

The Court: That’s right.

Mr. Schwartz: If that is the law, that the United

States Supreme Court finally holds is the law, despite the

fact that there are differences of circuit opinions on this

question but nonetheless the Second Circuit holds what

your Honor has held, then I think that your Honor ought

to remember that the plaintiff has been held guilty of con-

tributory negligence to the extent of 15 per cent, and obvi-

ously that is excused from his recovery against the ship-

owner.

The Court: Yes.

Mr. Schwartz: So therefore in the ultimate picture,

because of our employees’ negligence, that 15 per cent

Al6

Excerpts From Transcript of Trial

(Findings of Wyatt, U.S. D. J.).

already has been subtracted from the shipowner’s liability.

On the other hand, if it hasn’t been excised as your

Honor views it—and you remember Judge Kaufman, when

he was in the district court, had that view, that it is ex-

cused—but nonetheless, if it is not excised (117) by what

the subsequent cases have treated with it, then I say that

the most that we should be liable, if at all, is the 15 per

cent of our employees’ contributory negligence in this

case, and that should be the sum total of our liability in

this case, if at all.

The Court: Rodriguez gives me no choice. It says all

or nothing, and it says all.

Mr. Schwartz: Rodriguez didn’t have co-third-party

defendants.

The Court: That is right.

Mr. Schwartz: We were the only third-party defendant.

Mr. Cichanowiez: Your Honor, I think on that point—

The Court: Mr. Schwartz, what do you suggest that

I do?

What happens if I enter a judgment against Hoffman

for the full amount and enter a judgment for the ship-

owner against Hoffman and ITO, 50 per cent against Hoff-

man and 50 per cent against ITO?

Now, they are judgments, but how does the plaintiff get

paid?

If he levies on execution on Hoffman, as he could do, as

I understand it, then the shipowner never, (118) never

gets any recovery or never pays anything. Therefore, the

shipowner has no claim-over and Hoffman ends up stand-

ing 100 per cent of the loss, which to me seems inequitable

and it is not what I want to bring about.

Mr. Schwartz: I think your Honor has put his finger

on a thorny problem that concerns all of us and I don’t

know that I have the answer to it.

Al7

Excerpts From Transcript of Trial

(Findings of Wyatt, U.S.D.J.).

I do appreciate fully that an entry of a judgment

against Hoffman, which your Honor has indicated the

plaintiff is entitled to, exposes Hoffman to having to

satisfy that judgment wholly to the plaintiff.

The Court: That’s right.

Mr. Schwartz: In which event the shipowner has come

away clean with respect to any payment it has to make,

with the exception of counsel fees, which is a question for

your Honor’s determination yet.

The Court: Yes. And I have—

Mr. Schwartz: But the shipowner comes out whole.

What Hoffman’s rights are with respect to ITO, if your

Honor were to find 50-50 liability to the shipowner, what

Hoffman’s rights are where they pay the judgment to the

plaintiff because they are a (119) direct defendant to the

plaintiff, I don’t know the answer to that. And yet the

plaintiff has made out his case against Hoffman as your

Honor has held.

The Court: Yes, that’s right.

Mr. Schwartz: By the same token, we are in an ad-

miralty court, we are applying maritime law, despite the

fact there was diversity of citizenship which gave the

plaintiff the right to have his issues determined by a jury,

and yet I assume that admiralty, being an equity court,

might dispense equity so that result does not obtain. But

I don’t know the answer to your Honor’s qnestion.

The Court: I suppose that one thing I could do—

whether the Court of Appeals would approve of it is an-

other matter—I would enter a judgment, vacate the present

judgment against the shipowner, enter a judgment against

the shipowner for 50 per cent of the total amount, enter

a judgment against Hoffman for 50 per cent, hoping that

the plaintiff can recover from both, and enter a judgment

fe the shipowner for 50 per cent—for all of the judg-

Al

Excerpts From Transcript of Trial

(Findings of Wyatt, U.S.D.J.).

ment against ITO and 50 per cent of the counsel fees

against ITO and 50 per cent against Hoffman. That would

wind up with the result that I want to accomplish.

(120) Mr. Klonsky: Maybe they can stipulate to that

result and let the Court of Appeals find out whether that

should stand on liability only.

The Court: I think that’s what I will do, whether it is

stipulated to or not.

Mr. Cichanowiez: Your Honor, there is a case in the

Second Circuit, Hartnett against Reis, in which the ship-

owner was held liable and then he was allowed 50 per

cent recovery against two co-stevedores. That way, ap-

parently, would be no problem.

The finding against Hoffman may create a problem.

Mr. Klonsky: The trouble is, your Honor, that they

cannot be treated as joint tort-feasors, the stevedore and

Hoffman, because the stevedore could not be sued directly

by the plaintiff inasmuch as he is the employer, and an

employer is not a joint tort-feasor. That is the major

problem as I see it to give any clear resolution of this.

(125) Arrernoon Session

(2:30 p.m.)

The Court: I have read the Hartnett case, I guess,

which is the grain case from Buffalo. I have read the

opinion of the Court of Appeals.

In a situation very similar to our own, the Court of

Appeals approved an equal division of liability as between

parties who correspond to ITO and Hoffman here.

It is a 1970 case and the records are presumably in a

warehouse so that I have no idea what the judgment looked

like.

A9

Excerpts From Transcript of Trial

(Findings of Wyatt, U.S.D.J.).

At any rate, it seems clear that the judgment which

has already been entered against the shipowner, Olden-

dorff, for $310,250 should stand.

If Oldendorff does not pay that judgment, then of course

Oldendorff has no indemnity as against the other parties,

nor will Oldendorff receive its counsel fees unless its pays

the judgment.

But if the shipowner pays the judgment, then the ship-

owner may recover 50 per cent against ITO plus 50 per

cent of counsel fees, and may recover 50 per cent against

Hoffman plus 50 per cent of counsel fees.

(126) There may be judgment for $310,250 against Hoff-

man. If Hoffman pays the judgment, Hoffman is entitled

to recover 50 per cent ITO and an appropriate judgment

may reflect that.

All other claims and cross claims or any claims, cross

claims, counterclaims inconsistent with this are dismissed.

The parties may either agree on the form of judgment

or judgments or they may submit them on notice.

I don’t think we need to do anything else.

Mr. Schwartz: I would like to, before we conclude, your

Honor, having talked to Mr. Blanc, there is something that

is left open here which lends itself to some disposition by

your Honor.

Mr. Blane and I have agreed—have we not, Mr. Blanc?

—that this crane and whatever came with it was ordered

from Hoffman by ITO as the customer.

Mr. Blane: Correct.

Mr. Schwartz: And with that in mind, your Honor, I

respectfully, knowing that your Honor has pretty much

disposed of the claims, call your Honor’s attention to the

fact that in our answer ITO has a cross claim against

Hoffman for breach of its (127) expressed and implied

warranties to us with respect to the operation of the crane

that we ordered from them, and I say to your Honor most

A20

Excerpts From Transcript of Trial

(Findings of Wyatt, U.S. D. J.).

respectfully that having been case into liability under the

Rodriguez case because of the negligence of our own em-

ployee, that in equity and in conscience and under the law

we should be entitled to indemnity from Hoffman because

it, by its actions, has cast us into liability for whatever we

are called upon to pay in this case.

The Court: No, you are not entitled to anything.

I don’t believe there was any express or implied warran-

ties from Hoffman and you are entitled to nothing and will

take nothing as against Hoffman, because I want to leave

and I think my dictated result will leave 50 per cent of the

liability on ITO and 50 per cent on Hoffman.

I still don’t know the technical or admiralty forms of the

formal judgment papers or decree.

Mr. Schwartz: At lunch, with the exception of Mr.

Blanc, Mr. Klonsky, Mr. Cichanowiez and I kicked around

the form of a judgment that might carry into execution

your Honor’s disposition, even though I respectfully dis-

agree with my not having a right over (128) as against

Hoffman.

If we can go off the record and use that blackboard for

a moment, if your Honor wishes to spend the time, per-

haps we can agree on a form of judgment.

The Court: All right. Certainly. I will contribute my

energy and strength if it will help in any way.

(Discussion off the record.)

Mr. Cichanowicz: Your Honor, may I note an exception

to the portion of your Honor’s ruling in which apparently

counsel fees, defendant’s counsel fees, are contingent upon

the defendant paying the judgment.

The Court: All right.

I think I have done as much as I can do.

All right, Mr. Clerk, we will be in recess.

— U —

A21

Statutes Involved

TITLE 28, APPENDIX.—RULES OF CIVIL

PROCEDURE

Rute 50.— Moriox ror a Direcrep VERDICT AND FOR

JUDGMENT NOTWITHSTANDING THE VERDICT

(a) Motion for directed verdict; when made; effect.

A party who moves for a directed verdict at the close of

the evidence offered by an opponent may offer evidence in

the event that the motion is not granted, without having

reserved the right so to do and to the same extent as if the

motion had not been made. A motion for a directed verdict

which is not granted is not a waiver of trial by jury even

though all parties to the action have moved for directed

verdicts. A motion for a directed verdict shall state the

specific grounds therefor. The order of the court granting

a motion for a directed verdict is effective without any

assent of the jury.

(b) Motion for judgment notwithstanding the verdict.

Whenever a motion for a directed verdict made at the

close of all the evidence is denied or for any reason is not

granted, the court is deemed to have submitted the action

to the jury subject to a later determination of the legal

questions raised by the motion. Not later than 10 days

after entry of judgment, a party who has moved for a di-

rected verdict may move to have the verdict and any judg-

ment entered thereon set aside and to have judgment

entered in accordance with his motion for a directed ver-

dict; or if a verdict was not returned such party, within

10 days after the jury has been discharged, may move for

judgment in accordance with his motion for a directed ver-

dict. A motion for a new trial may be joined with this

motion, or a new trial may be prayed for in the alternative.

A22

Statutes Involved.

If a verdict was returned the court may allow the judgment

to stand or may reopen the judgment and either order a

new trial or direct the entry of judgment as if the re-

quested verdict had been directed. If no verdict was re-

turned the court may direct the entry of judgment as if the

requested verdict had been directed or may order a new

trial.