Staley, Chief Judge, and McLaughlin, Kalodner, Hastie, Smith, Freedman and Seitz, Circuit Judges. Freedman, Circuit Judge (dissenting).
Plaintiff, a seaman, obtained a verdict against his employer ("defendant") in the amount of $126,000 in a suit under the Jones Act. 46 U.S.C. § 688.
Two questions are raised by defendant on appeal: (1) the adequacy of the charge on plaintiff's burden of proof; and (2) the sufficiency of the evidence to justify the submission to the jury of the claim for complete and permanent loss of earning capacity.
Plaintiff claimed that he was assaulted by Mike Faifua, the boatswain of the S.S. Gulfprince, on which they were both employed. Faifua apparently denied the attack. There was no eye witness to the assault. The evidence, while circumstantial, very strongly supported plaintiff's claim that Faifua attacked him. It was to the effect that Faifua, who had earlier assaulted another seaman, was known on the vessel as a man inclined to violence, and that he was intent on injuring the plaintiff because he had performed his work so well as a relief boatswain that Faifua considered him a threat to his job.
On June 15, 1959, Faifua ordered the plaintiff to accompany him to the paint locker where he joined him a short time later. Plaintiff next recalled awakening in a dizzy condition in his bunk hours later. There was evidence that he had reported to the master earlier that Faifua had struck him with a sandbag. Grugan, a seaman employed on the vessel, testified that he saw plaintiff in a dazed and incoherent condition, staggering from the area of the paint locker with his head between his hands and that plaintiff told him that Faifua had hit him over the head with a sandbag. Grugan took plaintiff to the Captain's office and reported what plaintiff had told him. On the Captain's instruction Grugan returned to the paint locker and there found sand on the deck and a black rubber glove of the type used by Faifua. Gonzales, another seaman, testified that he heard plaintiff yell that Faifua had struck him, shortly after Faifua had gone down into the paint locker. Gonzales then looked down through the open hatch and saw plaintiff lying on the deck with Faifua standing over him.
The trial judge made it clear to the jury that they must be satisfied by a fair preponderance of the evidence of the negligence of the defendant and of the unseaworthiness of the vessel. He then submitted four interrogatories to the jury which they were to answer in the form of a special verdict. The only instruction regarding the interrogatories was that the answers to them could be given only on the unanimous agreement of the jury, a requirement which was twice expressed. The interrogatories, all of which the jury answered in the affirmative, were as follows:
"1. Did Mike Faifua assault James Lawrence on June 15, 1959?
"2. If your answer to No. 1 is Yes, did Mike Faifua hit James Lawrence with a 'sandbag'?
"3. If your answer to No. 1 is Yes, was the defendant negligent in failing to provide the plaintiff with a reasonably safe place to work?
"4. If your answer to No. 1 is Yes, was the defendant's vessel, the GulfPrince, unseaworthy in the respect that Mike Faifua was not of equal disposition to the ordinary man of his calling?"
At the conclusion of the charge defendant requested the court to instruct the jury that plaintiff's burden of proof applied to the claim of the assault as well as the claims of unseaworthiness and negligence. The trial judge refused the request on the ground that it had already been covered by the charge. Defendant then requested an instruction that the burden of proof was on the plaintiff as to each of the interrogatories. This ...