In this suit by a seaman, under the Jones Act and for
unseaworthiness under the general maritime law, to recover from a
shipowner for personal injuries sustained while a member of the
crew of its ship when an allegedly defective wrench with which he
was working slipped off a nut and hit his toe,
held: the
evidence was sufficient to present a jury question, under the
unseaworthiness claim, as to whether the wrench was a reasonably
suitable appliance, and, under the Jones Act claim, as to the
shipowner's alleged failure to exercise due care in furnishing a
wrench which was not a reasonably suitable appliance, and the trial
judge erred in directing a verdict for the shipowner. Pp.
364 U. S.
325-332.
271 F.2d 194 reversed.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
The petitioner asks damages for personal injuries he allegedly
sustained in a shipboard accident while a crew member aboard the
respondent's Great Lakes vessel, the tanker
Orion. His
complaint alleges respondent's liability both for negligence under
the Jones Act, 46 U.S.C. § 688, and for unseaworthiness under the
general maritime law; [
Footnote
1] a claim for maintenance and cure is also
Page 364 U. S. 326
alleged. The parties settled the claim for maintenance and cure
at the trial, which was before a jury in the District Court for the
Northern District of Ohio. Judgment was entered for the respondent
on the unseaworthiness and Jones Act claims upon a verdict directed
by the trial judge on the ground of insufficiency of the evidence.
The Court of Appeals for the Sixth Circuit affirmed. 271 F.2d 194.
We granted certiorari, 362 U.S. 909.
Michalic claims that in a shipboard accident on December 28,
1955, a two-and-one-half-pound wrench dropped on his left great
toe. Michalic was afflicted with Buerger's disease when he joined
the
Orion three months earlier as a fireman in the engine
room. We are informed by the testimony of one of the medical
witnesses that Buerger's disease
"is a disease of unknown origin . . . ; it produces a narrowing
of the blood supply going to the foot through the arteries, and it
runs a very foreseeable course; it is slowly progressive in most
cases, and leads to progressive loss of blood supply to the
extremities involving usually the legs;"
for one afflicted with the disease to drop
"a hammer on his toe . . . is a very serious thing, and
frequently leads to amputation . . . [b]ecause the circulation is
already impaired and the wound will not heal properly, and any
appreciable trauma will frequently lead to gangrene."
Michalic did not report the accident at the time, but continued
working until January 6, 1956, a week later, when the vessel was
laid up for the winter. Meanwhile he treated the toe every night
after work in hot water and Epsom salts. He was at his home from
January 6 to March 15, and used hot boric acid soaks "practically
every day." He was called back to the
Orion on March
15.
Page 364 U. S. 327
On April 1, 1956, he reported to the
Orion's captain
that "[m]y leg was so bad, so painful, I couldn't take it no more.
. . . I want a hospital ticket." The captain gave him the ticket
after filling out a report in which he stated that Michalic told
him that, on December 28, 1955, "While working with pumpman in
pumproom man said he dropped a wrench on his foot and his toe has
been sore ever since." This was the first notice respondent had of
any accident.
At the hospital in April, a diagnosis was made of "an infected
left great toe nail and gangrene of the left great toe secondary to
the Buerger's Disease." During the spring, three amputations were
performed on the left leg. first the great left toe, next the left
leg below the knee and then part of the leg above the knee. Medical
experts, three on behalf of the petitioner and one for the
respondent, differed whether, assuming that the wrench dropped on
Michalic's left great toe on December 28, there was a causal
connection between that trauma and the amputations. This plainly
presented a question for the jury's determination.
Sentilles v.
Inter-Caribbean Corp., 361 U. S. 107, and
we do not understand that the respondent contends otherwise.
The basic dispute between the parties is as to the sufficiency
of the proofs to justify the jury's finding with reason that
respondent furnished Michalic with a wrench which was not
reasonably fit for its intended use. Here, a distinction should be
noticed between the unseaworthiness and Jones Act claims in this
regard. The vessel's duty to furnish seamen with tools reasonably
fit for their intended use is absolute,
Mahnich v. Southern
S.S. Co., 321 U. S. 96;
Seas Shipping Co. v. Sieracki, 328 U. S.
85;
The Osceola, 189 U.
S. 158;
Cox v. Esso Shipping Co., 247 F.2d 629;
and this duty is completely independent of the owner's duty under
the Jones Act to exercise reasonable care.
Mitchell v. Trawler
Racer, Inc., 362 U. S. 539.
Page 364 U. S. 328
The differences are stated in
Cox v. Esso Shipping Co.,
supra:
"One is an absolute duty, the other is due care. Where . . . the
ultimate issue [is] seaworthiness of the gear . . . , [t]he owner
has an absolute duty to furnish reasonably suitable appliances. If
he does not, then no amount of due care or prudence excuses him,
whether he knew, or could have known, of its deficiency at the
outset or after use. In contrast, under the negligence concept,
there is only a duty to use due care,
i.e., reasonable
prudence, to select and keep in order reasonably suitable
appliances. Defects which would not have been known to a reasonably
prudent person at the outset, or arose after use and which a
reasonably prudent person ought not to have discovered, would
impose no liability."
247 F.2d at 637.
Thus, the question under Michalic's unseaworthiness claim is the
single one as to the sufficiency of the proofs to raise a jury
question whether the wrench furnished Michalic was a reasonably
suitable appliance for the task he was assigned. To support the
Jones Act claim, however, the evidence must also be sufficient to
raise a jury question whether the respondent failed to exercise due
care in furnishing a wrench which was not a reasonably suitable
appliance.
The wrench dropped on Michalic's foot while he was using it to
unscrew nuts from bolts on the casing of a centrifugal pump in the
pumproom. He had been assigned this task by the pumpman after the
first assistant engineer sent him from the engine room to the
pumproom to help ready the pumps for the vessel's winter lay-up.
There were about twenty-five 1 5/8" nuts tightly secured to the
bolts on the casing. The pumpman gave him a 1 5/8" straight-end
wrench weighing two and one-half pounds and ten to eleven inches
long, and also a mallet.
Page 364 U. S. 329
The pump was located alongside and some inches below a catwalk,
and Michalic had to step down from the catwalk to reach the casing.
His task required the gripping of each nut in the claw of the
wrench and the hammering of the side of the wrench with the mallet
to apply pressure to loosen it. Michalic had removed all but a few
of the nuts when he
"had hold of a nut' with the wrench and 'I hit it [the wrench]
with the mallet and it slipped off the nut and came down the side
of the pump and hit my big toe. . . . Yes, she slipped off the nut
on the pump and came down the side of the pump and smashed my big
toe."
Michalic contends that the proofs were sufficient to justify the
jury in finding with reason that there was play in the claw of the
wrench which prevented a tight grip on the nut, thus entitling him
to the jury's determination of his unseaworthiness claim, and were
also sufficient to justify the jury in finding with reason that the
respondent negligently furnished him with a defective wrench, thus
entitling him also to the jury's determination of his Jones Act
claim. The evidence, viewed in a light favorable to him, was as
follows: the wrench and other pumproom tools were kept in the
pumproom toolbox, and were used only when the vessel was being
prepared for lay-up. The tools were four or five years old. Because
of the danger of fire, the tools, including the wrench and mallet
which Michalic used, were made of a special spark-proof alloy. The
second mate, who had left the
Orion on December 19,
[
Footnote 2] testified that the
tools were bronze because "Bronze tools are for non-striking." It
was the practice to inspect the
Page 364 U. S. 330
pumproom tools and replace worn ones before their use at lay-up
time, but the first assistant engineer who testified to the
practice did not say this inspection was made in 1955; and the
pumpman testified that "[i]t could be" that no one looked at the
toolbox for nine months before December 28. The second mate
testified that the tools "had been very beaten and battered,
perhaps there for some time." Michalic testified that he noticed
when the pumpman gave him the wrench that it was an "old beat-up
wrench . . . all chewed up on the end." Michalic said that, when he
started work, "the wrench was slipping off the nuts; it slipped off
every one of them." He "had a hard time loosening them off." He
protested to the pumpman that "This wrench keeps slipping off," and
the pumpman answered "Never mind about that, do the job as best you
can."
The trial judge found the evidence to be insufficient to present
a jury question whether the wrench was a reasonably suitable
appliance, because, "on the theory the grip is worn . . . , there
is never any mention of the grip in the case. . . ." The Court of
Appeals took the same view, saying
"There was no evidence that the open or jaw end of the wrench
was in any way deficient. . . . The fact that the wrench slipped is
not evidence that its slipping was the consequence of some
condition in the jaw or handle of the wrench."
271 F.2d at 199. We think that both lower courts erred. True,
there was no direct evidence of play in the jaw of the wrench, as
in
Jacob v. New York City, 315 U.
S. 752,
315 U. S. 754.
But direct evidence of a fact is not required. Circumstantial
evidence is not only sufficient, but may also be more certain,
satisfying and persuasive than direct evidence.
Rogers v.
Missouri Pacific R. Co., 352 U. S. 500,
352 U. S. 508,
note 17. [
Footnote 3] The jury,
on this record,
Page 364 U. S. 331
with the inferences permissible from the respondent's own
testimony that inspections were necessary to replace tools of this
special alloy because of wear which impaired their effectiveness,
could reasonably have found that the wrench repeatedly slipped from
the nuts because the jaw of the wrench did not properly grip them.
Plainly the jury, with reason, could infer that the colloquy
between Michalic and the pumpman, and Michalic's testimony as to
slipping, related to the function of the jaw of the wrench in
gripping the nuts and that there was play in it which caused the
wrench to slip off. Thus, the proofs sufficed to raise questions
for the jury's determination of both the unseaworthiness and Jones
Act claims.
"It does not matter that, from the evidence, the jury may also
with reason, on grounds of probability, attribute the result to
other causes. . . ."
Rogers v. Missouri Pacific R. Co., supra, p.
352 U. S. 506.
[
Footnote 4]
The Jones Act claim is double-barreled. Michalic adds a charge
of negligent failure to provide him with a safe place to work to
the charge of negligence in furnishing him
Page 364 U. S. 332
with a defective wrench. However, the case was not tried, nor is
it argued here, on the basis that the charge of negligence in
failing to provide a safe place to work rests solely on evidence
tending to show a cramped and poorly lighted working space,
regardless of the suitability of the wrench. On the contrary,
Michalic also makes the allegedly defective wrench the basis of
this charge, arguing in effect that the described conditions under
which he was required to do the work increased the hazard from the
use of the defective wrench. Under that theory, the relevance of
the testimony is only to the charge of furnishing a defective
wrench and the causal connection between that act and his injury.
Phrasing the claim as a failure to provide a safe place to work
therefore adds nothing to Michalic's case, and he was not entitled
to have that claim submitted to the jury as an additional ground of
the respondent's alleged liability.
The judgment of the Court of Appeals is reversed, and the cause
remanded to the District Court for a new trial.
It is so ordered.
For the reasons set forth in his opinion in
Rogers v.
Missouri Pacific R. Co., 352 U. S. 500,
352 U. S. 524,
MR. JUSTICE FRANKFURTER is of the view that the writ of certiorari
was improvidently granted.
[
Footnote 1]
The parties tried the case in the District Court, and argued it
here and in the Court of Appeals, as raising issues both of
negligence under the Jones Act and unseaworthiness under the
general maritime law. We therefore need not be concerned with the
confusing language of the complaint and whether it may be read as
pleading a claim solely on the theory of negligence.
[
Footnote 2]
The trial judge ordered the second mate's testimony to be
stricken from the record when it appeared that the mate left the
Orion on December 19. The Court of Appeals nevertheless
considered the testimony so far as it concerned the condition of
the tools. 271 F.2d at 196. We think the action of the Court of
Appeals was correct in light of the testimony of respondent's own
witnesses, from which it is reasonable to infer that the tools used
on December 28 had been in the toolbox for some time prior to
December 19.
[
Footnote 3]
The trial judge rested his action partly on a supposed variance
between the complaint and the proof at the trial. The complaint
alleged that the wrench was "an old defective wrench in an
unseaworthy condition in that the
teeth and grip of the
wrench were worn and defective." (Emphasis supplied.) Michalic and
all the witnesses at the trial who testified about the wrench
described its claw as smooth-faced and without teeth. We see no
fatal variance, and, in any event, respondent waived reliance on
any by expressly disclaiming surprise at the trial.
[
Footnote 4]
The petitioner does not invoke the District Court's jurisdiction
on grounds of diversity of citizenship. Thus, there is jurisdiction
on the law side of the court of the unseaworthiness claim only as
"pendent" to jurisdiction under the Jones Act.
Romero v.
International Terminal Operating Co., 358 U.
S. 354,
358 U. S.
380-381. However, the question expressly reserved in
Romero, p.
358 U. S. 381
-- whether the District Court may submit the "pendent" claim to the
jury -- is not presented by the case. The
Orion was a
Great Lakes vessel, and the petitioner is entitled to a jury trial
of his unseaworthiness claim under 28 U.S.C. § 1873.
See Troupe
v. Chicago, D. & G. Bay Transit Co., 234 F.2d 253;
The
Western States, 159 F. 354;
Jenkins v.
Roderick, 156 F.
Supp. 299.
MR. JUSTICE HARLAN with whom MR. JUSTICE WHITTAKER and MR.
JUSTICE STEWART join, dissenting.
At the opening of a Term which finds the Court's docket crowded
with more important and difficult litigation than in many years, it
is not without irony that we should be witnessing among the first
matters to be heard a routine negligence (and unseaworthiness)
[
Footnote 2/1] case involving
only
Page 364 U. S. 333
issues of fact. I continue to believe that such cases,
distressing and important as they are for unsuccessful plaintiffs,
do not belong in this Court.
See dissenting opinions in
Rogers v. Missouri Pacific R. Co., 352 U.
S. 500, at
352 U. S. 524,
352 U. S.
559.
The District Court, finding that the evidence presented no
questions for the jury, directed a verdict for the respondent. The
Court of Appeals, in an opinion which manifests a conscientious
effort to follow the precepts of the
Rogers case,
unanimously affirmed after a painstaking assessment of the record.
271 F.2d 194. My own examination of the record and of the opinion
of the Court of Appeals convinces me that there is no warrant for
this Court overriding the views of the two lower courts.
The core of petitioner's case was the condition of the wrench,
his "unsafe place to work" theory having evaporated in thin air, as
the Court recognizes. Having had to abandon his original theory
that the claw of the wrench had defective teeth (since the wrench
was toothless), petitioner testified (1) that the instrument was an
"old beat-up wrench . . . all chewed up on the end" (whether at the
claw or handle does not appear); and (2) that the wrench had
slipped off nuts at various times during the operation (albeit
petitioner had before the accident successfully removed some 15 out
of 20 nuts without mishap).
While the Court, in stating that "there was no direct evidence
of play in the jaw of the wrench," seems to recognize that this
testimony did not suffice to show any actionable flaw in the
wrench, it nonetheless concludes that the jury should have been
permitted to infer one, in light of two other factors. These are
(1) the second mate's testimony that as of some 10 days before the
accident, [
Footnote 2/2] the
Page 364 U. S. 334
tools in the pumproom toolbox "had been very beaten and
battered" (whether at the claw or handle, or anywhere else, does
not appear); and (2) other evidence which, as I read its opinion,
the Court takes as establishing that the tools were old and
infrequently inspected. (Actually, the record shows that the tools
had been used only four or five times, and that the wrench had been
inspected just before it was handed to petitioner. [
Footnote 2/3])
Judged by any reasonable standard, this evidence, fragmentized
or synthesized as one may please, did not, in my opinion, make a
case for the jury. The additional factors on which the Court relies
add nothing to the inherent deficiencies of petitioner's testimony,
which the Court seems to recognize did not, of itself, make out a
case of either negligence or unseaworthiness. If it is permissible
for a jury to rationalize "into being" a defective wrench from this
sort of evidence, then wrenches have indeed become dangerous
weapons for those operating vessels on the Great Lakes. If the rule
of
Rogers means that, in
Page 364 U. S. 355
FELA cases, [
Footnote 2/4] trial
courts are deprived of all significant control over jury verdicts,
and juries are in effect to be allowed to roam at large, I think
the lower federal courts should be so told.
See Harris v.
Pennsylvania R. Co., 361 U. S. 15,
361 U. S. 25
(dissenting opinion). At least this would be better than continuing
to require the lower courts to operate in what must be an
atmosphere of increasing bewilderment over what is expected of them
in these federal negligence cases.
I would affirm.
[
Footnote 2/1]
See note 1 of the
Court's opinion 364 U.S. at
325.
[
Footnote 2/2]
The exact date of the accident is obscure. Petitioner did not
report the alleged accident for some six months after he claimed it
occurred. The then master testified with respect to the filling out
of the company accident form:
"Q. How did you arrive at the date of December 28, 1955?"
"A. Well, it was merely an arbitrary date. It was kind of hard
to reckon back at the time this [the form] was made up. This was
made up on the 1st of April following. This may have been any time
in December. It may have been the 21st, it may have been any time
during that period. . . ."
"The Court: That is the date plaintiff gave. Were you on the
vessel on that day, December 28?"
"The Witness: Not to my recollection, sir, but when we typed
this up, Mr. Michalic, the plaintiff, gave me that as the
approximate date. He didn't really know exactly when it would have
been."
[
Footnote 2/3]
The pumpman, whom petitioner was helping, testified that the
wrench used by petitioner was one of three that had been procured
four or five years before; that they were used only once a year;
and that he had inspected the wrenches just before taking them out
of the tool chest on the day in question.
[
Footnote 2/4]
The Jones Act, here involved, incorporates the standards of the
Federal Employers' Liability Act.