SENTILLES v. INTER-CARIBBEAN CORP.
Legal provision: Jones, or Death on the High Seas
Argument of Milton Kelner
Chief Justice Earl Warren: Number 6, Daniel J. Sentillies versus Inter-Caribbean Shipping Corporation.
Mr. Kelner, you may proceed.
Mr. Milton Kelner: Mr. Chief Justice, may it please the Court.
I represent the plaintiff in the trial court.
The seaman was injured abroad ship.
After a verdict before jury and the District Court under the Jones Act, the verdict was affirmed on post trial motions by the United States District Court Judge.
On appeal by the defendant, this verdict was reversed by the Fifth Circuit Court by a 2-to-1 decision and opinion.
There is a dissenting opinion written by that Court.
The issue presented to that Court and presented to this Court is, did the plaintiff present at the trial sufficient evidence that his fall aboard ship contributed to activate or aggravate this pre-existing dormant tuberculosis.
The facts basically were these.
This man was aboard ship as an engineer, the weather was rough, and the emergency arose whereby he had to attend to refrigeration engine in the forward portion of the vessel.
Safety lines had not been strong on his way back after having taken care of the fire.
The vessel suddenly fell away from under him, the -- the 20-foot wave at vessel is toasting at a 15 to 20 degree angle.
When he fell, he fell on his left side injuring his side, his hip, his head, his shoulder, his leg.
A wave swept over him, washing him at distance of approximately 24 feet, and unfortunately, his legs were spreadly -- was caught on the chain at the edge of the vessel.
In the process, he inhaled water.
Before this accident, he had felt well and knew nothing whatsoever about any chest difficulties, chest complaints or tuberculosis.
Immediately after this accident, he felt badly, he had a cough, a heavy cold, he felt as tough he had the flu.
The ship was tree days out of port, the Port of Miami, and in those three days, the capital of the vessel treated him with pills, penicillin, treated him for this heavy cough, heavy cold.
When he hit the Port of Miami, he thought all he had was a cold from being washed by the water and the blow to the side which restricted his breathing and so on.
And he went up to New York.
He was at the Hotel New York and couldn't shake the colds and went to see the hotel doctor up there.
The doctor examined him so that he had a flu at level in his lungs and said that he needed hospitalization immediately.
The plaintiff returned to his home in New Orleans, went to see his family doctor.
Now, his family doctor had examined him regularly, no less than five or six times in the year before the accident.
X-rays of this man's chest take him as recently as too much before he fell, had fail to disclose any tuberculosis.
On re-examination of this X-rays, however, there was found to be a small infiltration, a small healed tubercular lesion that was missed on the initial examination.
Now, it is to be noticed that in this factual situation, the healed tubercular lesion, small one, was on the left side and the left lung.
This man found, received those (Inaudible) on the left side, left side of his lung.
The tuberculosis, when it developed, full-blown tuberculosis was in his left lung.
The medical testimony was that a blow to the chest can caused an inactive tuberculosis to become active full-blown and progress rapidly.
Now, what test then is to be applied to determine whether or not the blow to the chest plus this other factual background that I've given to you, aggravated or activated his preexisting dormant tuberculosis.
The cases are uniform, and there is no question as to the law.
The test is that probability is the chest, namely, did the blow to the chest probably aggravate his preexisting condition?
Now, there are three possible test that might be applied.
We might use the test of absolute certainty.
The plaintiff is not required and no plaintiff has ever been required to prove any such thing with absolute certainty.
The test might be possibility and possibility is not a sufficient test, so the test is probability.
Now, then, what proof do we have that meets this test of probability?
We have two doctors.
One of which, eminently, well-qualified tuberculosis specialist who stated, he was one of the treating positions.
He stated, and we've quoted his testimony in our reply brief.
He stated that this blow in his opinion probably aggravated the preexisting condition.
Another doctor stated not -- not less than three times, and we've quoted that in our reply brief, that the blow probably aggravated his preexisting condition.
Now, I suggest that the proof presented to the trial court meets the test of probability and that the jury was entitled to -- to believe the proof.
Justice John M. Harlan: Is there any issue as to negligence here or just --
Mr. Milton Kelner: No sir.
Justice John M. Harlan: -- provision?
Mr. Milton Kelner: The only issue that was presented to the Fifth Circuit was the issue of medical causation, it was -- this was the sole issue.
I suggest that this opinion of the Fifth Circuit Court is self-contradictory and is a most unusual opinion.
I suggest that the Fifth Circuit Court ignored the testimony of both these two doctors.
And I suggest that this Fifth Circuit opinion require the plaintiff to prove, not probability but certainty, because in reading the opinion, you'll see that the Court said, “Dr. Jacobs did not eliminate all other causes, but we are not required to do that.”
Now, I suggest that this opinion says the test is probability.
In the opinion, it says, “Dr. Jacobs testified probability.”
Yet, we say that that does not meet the test.
Now, there is one other matter that should be mentioned.
The plaintiff, when he felt, sustained certain admitted injuries even a part from his tuberculosis, namely, the headache that he had for a while that a blow to the chest, the scrape marks, the bruises that he had, the injuries to the leg, to the hip.
How can the Fifth Circuit Court disregard the admitted proof of positive injuries?
In the defendant's brief, they don't even bother to try to meet this because it can not be met.
They -- the Fifth Circuit Court, by this opinion, has, in effect, attempted to reevaluate the evidence and supplant its evaluation of the evidence for that of the jury.
And I suggest to that appellate courts have enough to do without reevaluating and acting as a jury.
If I have not proven probability by four statements in the record by doctor stating probability, then how many times must I get it into the record that we have probability?
I suggest that the plaintiff -- now, there -- I should mention that at the trial level, this matter from beginning to end was bitterly contested right down to the wire on every witness on practically every question.
And it is true that the jury could have reached the same result that the Fifth Circuit reached.
But fortunately, for the plaintiff, it did not.
On appeal, the plaintiff is entitled to all of the favorable testimony and inferences in its favor, and counsel for the defendant cannot state that any of the facts I've stated are not supported by the record.
Now, the Fifth Circuit, in its opinion, has failed to follow even its own opinions.
Under the -- the test under the Jones Act, for example, as they have stated it in the Liberty Mutual Company case, 171 F.2d 723, is the same that I have enunciated, namely, a question whether the disability was approximately caused or materially contributed to by his accidental injury.
Now, in that case, as in this case, the witnesses' statements on cross-examination are somewhat inconsistent but said the Fifth Circuit.
In the Liberty Mutual case, the witnesses' inconsistent statements present a question for jury, it is the function of the jury to reconcile or believe or disbelieve.
The opinion itself, hence the most unusual, the opinion itself, Fifth Circuit Court of Appeals opinion cites the case of Chicago Great Western Railway Company versus Smith, 228 F.2d 180.
If you read the opinion, you'll see that we have the same basic problem.
The doctor on direct examination stated his opinion that the acts, and it caused the plaintiff's injuries.
So on cross-examination, the doctor said, “The injury could have been caused by the accident or lifting,” and he could not tell which had precipitated the plaintiff's injuries, nevertheless, said the Eight Circuit in that case but again re-affirm by the Fifth Circuit by citing it.
That was sufficient to support the jury's verdict.
Now, under the Ferguson case, decided by this Court, 352 U.S. 521, the test under the Jones Act whether the proofs justify with reason the conclusion that the employer's negligence played any part even the slightest in producing the injuries.
We respectfully submit that we have more than met this proof.
We respectfully submit that the Circuit Court of Appeals has denied this man by its verdict, has deny this man his right to a trial by jury, has taken away his jury verdict, has attempt to the act as a jury, has usurp the functions of the jury.
We ask that the verdict to reinstate it.
Chief Justice Earl Warren: Mr. Beckham.
Argument of Robert J. Beckham
Mr. Robert J. Beckham: Mr. Chief Justice, may it please the Court.
I am most strikingly impressed by the admission of my adversary that there is no issue here as to negligence that the only issue here is involving a factual situation, and that his complaint is that an appellate court sat in reevaluation of the facts.
And I think it's obvious that the only reason we are here today is because the petitioner now seeks to have this Court sit a reevaluation of the facts.
The very thing he decries has having occurred in the Fifth Circuit.
I would like to make these comments about the -- the argument of the petitioner.
I think the Court will find several factual inconsistencies in that argument by reference to the record here.
This gentleman was about 40 years old.
He was hired by the Inter-Caribbean Shipping Corporation as a general manager and the overseer of the company operations in conjunction with the management of a banana boat running from Florida and from the Gulf Coast down into Central and South America.
Mr. Sentilles was and is a refrigeration engineer, he is not a seaman.
Mr. Sentilles, on this occasion, as the manager of the vessel, signed himself on and placed himself on the ship as a member of the crew.
This, of course, was done without any opportunity for the company to have a physical examination of the man or to go through the ordinary and customary pre-sign on investigations and examinations that often occur when seaman first go to sea for a shipping company.
Mr. Sentilles is being in charged of the vessel, in charged the operations' bypass such a procedure with himself.
Now, after this accident, it became apparent for the first time through the histories that he gave to positions both prior practice and in the hospital that he had a most remarkable history, remarkable in that it was right down the line consistent with a slowly developing progressive tubercular condition in the very area that he seeks to him liability upon this defendant for.
It is shown by the record that for a period of at least six to eight months, Mr. Sentilles had persistent nights which -- persistent at a recurring colds that he was unable to shake off, a deep and persistent hoarseness, a general tired feeling which the doctors refer to his malice and most significantly for some eight years prior Mr. Sentilles had been a -- a confirmed diabetic.
And I might a diabetic whose condition was not adequately kept under control by Mr. Sentilles and the words and then the testimony of his family doctor.
And I think that the Court will find also in a reference to the record that upon retrospect and upon examination by qualified tubercular man, the X-ray's in 1950 and in 1952, before this alleged incident in 1953, showed a developing progressing tubercular condition in the lung.
Now, it's true that the family position, an admitted general practitioner without much experience and diagnostic procedures for tuberculosis did not read these films in 1950 and 1952 as reflecting tuberculosis.
But it is highly significant that the experts and the merchant marine hospitals in New Orleans, the tuberculosis men, the chest men when they saw these films and examined the X-rays in conjunction with the man's history and statement and with the entire record before them, found an enlargement and a constantly progressive development being reflected in these films.
It is highly significant also that one of the own -- one of the plaintiffs and the petitioners own witnesses, and I might interject here that the defendant and respondent was at the trial and still is content to rest its case on this issue with the plaintiff's own testimony.
There is no medical testimony was adduced at the trial by the defendant.
So that everything before Your Honors today was brought and injected into the record by the plaintiff-petitioner.
But it is highly significant that one of the doctors stated that he himself TB man had made an extensive survey and had found that diabetics such as Mr. Sentilles or in his own words inordinately susceptible to tuberculosis, perhaps, five times as great as a non-diabetic.
And so, we now go into the medical evidence to see just what was developed by the plaintiff at this trial.
We say that the Court of Appeals for the Fifth Circuit most aptly and correctly characterizes this testimony for if there was ever a case where a failure existed, with reference to prove, we believe this is it.
Dr. Sherbenie, the family position the man who they say had seen him over and over again for years without ever suspecting this.
Dr. Sherbenie's words, “I do not honestly know of any case that was aggravated by trauma or a blow”.
Dr. Lerdo (ph), No record, no showing, no finding that this man had any rapid acceleration of symptomatology, no finding of anything that have happened.
And he saw the man within a week or two after this incident.
Diagnose the case as far advanced active one year, active one year.
And this diagnosis was made within, as I say, two weeks following this incident in 1953.
And then Dr. Jacobs, unable to say “Whether or not the diabetes or the trauma would be more likely or would probably have anything to do with an aggravation of this man's condition”.
And finally Dr. London, Dr. London never saw the plaintiff.
He was brought to testify and answer to hypothetical questions.
And in Dr. London's own words, on several occasions, he was unable to say whether it would be malnutrition, infection or trauma.
And I think that this is perhaps the most striking feature of the entire record that the trial judge on about three or four different occasions characterized that this witness' testimony, this witness whose testimony and whose testimony alone really is being urged by the petitioner as sustaining his position, Dr. London.
And if the Court will refer to the record or to the briefs where we cite the record, as to pages 87 and 88 and 89, you will find on three or four separate occasions, the words of the trial judge in effect saying the doctor says he can't tell.
The doctor says that it could be one of the three.
And this was his -- counsel has stated a bitterly contested proceeding and objections were made and -- at this point, in the record, an attempt was being made to say, “Well, the doctors already said this, we've been through this.
Your Honor, lets don't let him be harassed.”
And on each of these occasions, the Court says on page 87, I think he has answered it, he said, he couldn't tell.
That's on page 88.
He said he can't tell whether all three of these or one of them or two of them or even other factors might have precipitated the condition.
And on page 89, I think he said, “Could have”.
Well, that is why we're here.
Unknown Speaker: What are the (Voice Overlap) --
Chief Justice Earl Warren: There is some conflicting testimony with that, isn't there some different language by the same doctor --
Mr. Robert J. Beckham: I think that there is some different language, Your Honor?
Chief Justice Earl Warren: Yes.
Well, didn't he say this on one occasion, “I would assume that this exposure such as it was to the inclement weather and the trauma to the chest probably played a rule in making petitioner feel worse at this time and probably aggravated this condition.
Mr. Robert J. Beckham: I think he did he say that, Your Honor.
Chief Justice Earl Warren: But -- well, he did, then the -- it was in the record.
Mr. Robert J. Beckham: Yes, sir, I think he did.
Chief Justice Earl Warren: And didn't he also say this when -- when the doctor said or when the judge said, I think it was the judge, “I'm asking you, isn't it your testimony that you cannot tell us which on of those was the cause with any reasonable probability knowing the background that the man had.”
Answer, “I have already testified what I thought or that I thought, that the trauma to the chest was the precipitating factor.”
Mr. Robert J. Beckham: Yes, sir, he did testify that.
Chief Justice Earl Warren: Well, couldn't the jury -- couldn't the jury reconcile those statements if it wanted to do so?
Mr. Robert J. Beckham: I think not, Your Honor, because I -- I think that if you will examine the record immediately after the doctor makes his statement why its apparent that this is a complete contradiction of what he said before, and the issue has gone into again in an effort to -- to get the doctor to say what is his testimony.
And I think that the final testimony of the doctor.
Chief Justice Earl Warren: Well, following that very, very thing the question was “Restrict yourselves to what we know here.
To what we know, what would you say are the three possibilities on this man?
Would they be the three already told us about?”
Answer, “From the information I have gathered from the testimony from the previous positions that examined the patient and from the other information, I would feel that this man had an aggravation of his condition following this incident, whatever it was that he injured his chest and the trauma produced an aggravation.”
That's on page 88 of the record.
Mr. Robert J. Beckham: And then my point --
Chief Justice Earl Warren: Then -- then later for this he was asked, “You have stated that the blow of the chest and diabetes in your opinion in this case were both contributing causes to the aggravation of the -- of the preexisting dormant condition, is that correct?”
Mr. Robert J. Beckham: Now, Your Honor, the last statement that you've read was not made by this particular doctor but another doctor --
Chief Justice Earl Warren: Another doctor.
Mr. Robert J. Beckham: -- on -- on deposition.
Chief Justice Earl Warren: Yes.
But as to the other, well do or didn't that raise a conflict that the jury could resolve and that the trial judge on the motion for new trial for the -- determine.
Mr. Robert J. Beckham: I think it certainly was for the trial judge.
I think it was for the trial judge.
Chief Justice Earl Warren: How could you --
Mr. Robert J. Beckham: I think however that you cannot, I don't think that one isolative statement in a record, one isolated statement when viewed in the entire contents, I don't think that one isolative statement is sufficient when you're dealing with the term of medical probabilities which, by its very nature, is something a jury cannot, as it cannot, so many commonplace everyday things draw the same degree of inferences from medical testimony as it can from, say, causation between negligence and the injury.
I don't think that a single and isolative statement which is immediately withdrawn and retracted from -- on cross-examination.
I don't think that that is sufficient for a jury to infer from because, as I say, these things are peculiarly within analogy of the position except to the extent that I think this Court could take judicial knowledge that tuberculosis is a slowly developing process.
It's not a disease that comes upon a person with a snap of a finger.
Justice Hugo L. Black: What about the -- they call galloping consumption?
Mr. Robert J. Beckham: Galloping consumption, Your Honor, I'm afraid is before my time.
I -- I'm not familiar with the phraseology.
But I do think and it has been done in other cases that the courts have taken judicial knowledge of this fact.
And I believe you will find cited in our briefs, authorities to that effect.
And we say that -- that the characterization of the testimony by the trial judge, I think, he, being there on the scene, he is knowing -- frankly, it was quite a shock to us when he did not.
Justice John M. Harlan: What do you say about Judge Reeves' point in saying (Inaudible)?
Mr. Robert J. Beckham: Well, as I recall Judge Reeves' position, it was that he felt there was enough there and that the jury could infer.
And as -- that goes, I think, to my point, Mr. Justice, that a jury cannot be and should not be given the same latitude when -- when dealing with a technical and complicated medical question which is wholly be -- wholly formed to the commonplace knowledge of -- of a layman.
I don't think that a jury should be or is entitled to be accorded the same degree of latitude.
I think that if we're going to find any bounds at all and we have certainly have them up to this point by the excepted criteria of proving by medical probabilities, they doesn't seem to be any -- any conflict as to the law, and that's why we feel that the case perhaps is a strange one to the -- before this very Court.
Justice Hugo L. Black: Whether these particular judges, these two judges having a special competence in this field of medicine?
Mr. Robert J. Beckham: No, sir, I do not think so.
I don't think they had any special competence.
But I think they were certainly competent enough in the law to see whether or not a burden had been met that was required under the law.
Justice Hugo L. Black: They had to go a little further, isn't it -- didn't it?
They had to decide whether conflict of evidence could be decided one way or the other.
Mr. Robert J. Beckham: I did not hear Your Honor.
Justice Hugo L. Black: Didn't they have to decide whether conflict of evidence should be decided one way or the other?
Mr. Robert J. Beckham: No, I don't think that, Your Honor.
I don't believe the Court attempted to resolve a conflict in the evidence.
I think that the Court attempted to make commonsense -- to make sense out of the record, same as the trial judge did.
And that's why I say it's most -- to me, most striking that the trial judge on the occasions said he did, I think, four different times, who was there and listing and -- and watching as this trial proceeded.
Justice Hugo L. Black: What did he do?
Mr. Robert J. Beckham: In each case, and he said the -- the doctor has stated.
Justice Hugo L. Black: But what did he say in the final analogy?
Mr. Robert J. Beckham: Well, that -- that's he -- he disagreed with us.
And that was certainly a shock.
Now, I tell you that [Laughs] because --
Justice Hugo L. Black: Who decided the case?
Mr. Robert J. Beckham: Judge Choate.
Justice Hugo L. Black: Judge Choate.
Mr. Robert J. Beckham: Emett Choate.
And -- ordering the trial of the case, the judge on the testimony characterizes it as being could have possibility.
He said he -- he can't make a statement as to which of the three.
And yet, when we present him with our post trial motions, he did not agree.
But upon appeal, the record had been tried to -- prepared, it was not available for the trial judge at the time we had our post trial motions.
And when the record was presented to the duly constituted court and upon examination in argument of the record, they found that our position was correct.
And it's our feeling that this case -- as a case on the books, certainly, is not inconsistent with any prior decisions of this Court, it doesn't circumvent any established policy of this Court.
We can see no reason why the matter should be reversed on the law on the facts.
Adn we therefore suggest and it is our position that the writ either should be dismissed as improvidently granted or that the judgment and decision of the Fifth Circuit should be affirmed
Rebuttal of Milton Kelner
Mr. Milton Kelner: I have only one comment to make, Mr. Beckham, and I tried this case in the trial court.
His argument today is the same summation he gave to the jury.
It was a very final event.
It's a -- very final now.
But I still think it's a question for the jury to decide.
The question was raised as to the judge's dissenting opinion.
You'll notice that in my briefs, I did not mention the judge's dissenting opinion because I could find no case to sustain that dissenting opinion.
In fairness to this Court, I should mention that I checked this carefully as I could for limit of my limited ability and found no case.
Did this dissenting opinion present a very interesting problem?
Is this question so different from every other question that we require special rules?
Or is this a matter of proof like any other item of proof?
That's again an assuming thing.