Alvon A. Ross, Plaintiff-appellee, v. American Export Isbrandtsen Lines, Inc., Defendant-appellant, 453 F.2d 1199 (2d Cir. 1972)

The sole question raised on this appeal from a judgment entered upon a jury verdict awarding damages to a seaman for personal injuries sustained while employed on defendant's ship is whether the trial judge erred in excising an incomplete sentence from the ship's surgeon's log because the sentence was incomplete. Finding no prejudicial error, we affirm.

Plaintiff Alvon A. Ross, while employed as a seaman on the S. S. Independence, owned by defendant American Export Isbrandtsen Lines, Inc., sustained a back injury when he slipped and fell on ice on the sports deck during the early morning of February 11, 1967. After a two day jury trial of plaintiff's action brought under the Jones Act, 46 U.S.C. § 688 et seq. (1970), in the Southern District of New York, Lloyd F. MacMahon, District Judge, the jury returned a $62,000 plaintiff's verdict which, upon motion of defendant on ground of excessiveness, was reduced to $40,000. Plaintiff consented to entry of judgment in the reduced amount, from which defendant appeals.

The issue raised on appeal is very narrow indeed. Liability is not contested. Nor is the trial judge's order reducing the verdict from $62,000 to $40,000 on ground of excessiveness challenged. Defendant seeks a new trial solely on the ground of the trial judge's excision of the following incomplete sentence from the ship's surgeon's log for February 13, 1967 when offered in evidence by defendant's counsel on his recross examination of Dr. Harry Sherman, plaintiff's medical witness, purportedly to show that plaintiff was malingering:

"Back examination shows crew member assuming postures and attitudes which is not due to any back disability because the doctor - -"

The entry in question presumably was made by one of two doctors on the ship-Dr. Max A. Blumer or Dr. Joseph Brune-both employed by defendant. Neither doctor was called as a witness by defendant, nor was their absence at trial accounted for.

We hold that the excised sentence from the surgeon's log should have been admitted in evidence as a business entry under the Federal Business Records Act, 28 U.S.C. § 1732(a) (1970), and that the incompleteness of the entry was a factor to be weighed by the jury.¹  United States v. Re, 336 F.2d 306, 313 (2 Cir.), cert. denied, 379 U.S. 904 (1964); United States v. Kimmel, 274 F.2d 54, 57 (2 Cir. 1960); La Porte v. United States, 300 F.2d 878, 880 (9 Cir. 1962).² 

Upon the entire record, however, the excision of the incomplete sentence did not affect the substantial rights of defendant. Rule 61, Fed. R. Civ. P. The truncated entry does not necessarily indicate malingering. There is no other suggestion of malingering in the uncontradicted medical testimony and records in the case, including the nine other undisputed entries in the ship's surgeon's log; the medical record of the United States Public Health Service Outpatient Clinic at San Juan, Puerto Rico, made on the same day as the disputed entry; and the medical records of the United States Public Health Service Hospital at Stapleton, Staten Island, where plaintiff was an inpatient from May 2 through May 17, 1967 and an outpatient from May 27 through October 3, 1967. Defendant did not call either of its own doctors who were aboard the ship, or any other medical witness, to contradict the medical testimony and records which showed by an overwhelming preponderance that plaintiff sustained a serious back injury. And any conceivable impact of the exclusion of the incomplete sentence upon the alleged excessiveness of the verdict, as defendant claims, would appear to have been adequately offset by the remittitur of more than one-third of the amount of the verdict ordered by the trial judge-an order not appealed from by defendant. In short, we hold that excision of the incomplete sentence from the surgeon's log, not being prejudicial, was not reversible error.

Affirmed.