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Turchio v. D/S A/S Den Norske Africa

Turchio v. D/S A/S Den Norske Africa

United States Court of Appeals for the Second Circuit

November 21, 1974, Argued ; December 27, 1974, Decided

Docket Nos. 73-1867, 73-2058, Nos. 152, 40 - September Term, 1974

Opinion

 [*102]  MANSFIELD, Circuit Judge:

Inconsistencies between a jury's verdict and its answers to interrogatories are not an infrequent occurrence. See, e.g., McCandless v. L. G. DeFelice & Son, 144 F. Supp. 462 (W.D. Pa. 1956); [**2]  Fuselier v. Thompson, 155 F. Supp. 75 (W.D. La. 1957). In this typical tripartite longshoreman personal injury suit against a shipowner, which in turn impleaded plaintiff's employer-stevedoring concern, we are confronted with an unusual variation on the theme. In this case the jury not only answered interrogatories but rendered separate and successive verdicts that proved to be inconsistent. The district court, Robert L. Carter, Judge, entered judgment on the first verdict. We must decide whether either verdict may be upheld.

Plaintiff, a longshoreman, sued the shipowners in the Southern District of New York, alleging that while performing  [*103]  his duties aboard the S.S. Troubador he suffered personal injuries caused by unseaworthiness and negligence. The shipowners in turn impleaded plaintiff's employer, Pittston Stevedoring Corporation ("Pittston" herein), seeking recovery of indemnity for breach of its warranty of workmanlike service. At trial the shipowners' counsel, before summations and the court's charge to the jury, presented a series of written interrogatories to the court with the request that they be submitted to the jury for answer. 1 The court [**3]  ruled that "The proposed special requests to the jury, those are in substance granted. They will be included in the charge." Toward the close of his charge with respect to the plaintiff's claim against the shipowners the judge instructed the jury as follows:

"I have now completed my charge to you on the plaintiff's action against the shipowner and in considering the action of the plaintiff against the shipowner, I want you to answer the questions whether or not you find one, whether the ship was unseaworthy; two, whether the unseaworthy condition, if you say yes, was the proximate cause of the injury.

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509 F.2d 101 *; 1974 U.S. App. LEXIS 5458 **; 19 Fed. R. Serv. 2d (Callaghan) 903

CATENO TURCHIO, Plaintiff-Appellee, v. D/S A/S DEN NORSKE AFRICA, O.G., AUSTRALIELINE WILHELMSENS, DAMPSKIBSAKLASELSKAB A/S TONSBERG, A/S TONSBERG, A/S TONSFORT I, IV, & VI, Defendants and Third Party Plaintiffs-Appellees-Cross-Appellants, v. PITTSTON STEVEDORING CORPORATION, Third Party Defendant-Appellant

Prior History:  [**1]   Appeal from an order of the United States District Court for the Southern District of New York, Robert L. Carter, Judge, entering judgment on a jury's general verdict without answers to interrogatories requested by the court and after the jury had, upon further consideration, answered some interrogatories and returned an inconsistent verdict.

Disposition: Reversed and remanded for a new trial.

CORE TERMS

questions, interrogatories, answers, shipowners, unseaworthiness, general verdict, deliberations, proximate, enter a judgment, ship

Civil Procedure, Judicial Officers, Judges, Discretionary Powers, Jury Trials, Verdicts, General Overview, General Verdicts, Appeals, Reviewability of Lower Court Decisions, Preservation for Review