VII. PRACTICE AND PROCEDURE F. Pleadings and Motions 1. Complaint - Maritime Lawyer Hawaii

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In Bristol-Myers Squibb Co. v. Superior Court of California, No. 16-466 (June 19, 2017), the U.S. Supreme Court held that a state court does not generally have specific personal jurisdiction to entertain class-action claims by non-resident plaintiffs against a company headquartered outside of the forum state (here Bristol-Myers Squibb was not based in California). In future class action claims against nationwide corporate defendants, it appears that the U.S. Supreme Court is generally requiring piecemeal litigation in each state where a plaintiff was injured, instead of allowing for a single consolidated class action in a single state court lawsuit.




The Jones Act

VII. PRACTICE AND PROCEDURE F. Pleadings and Motions 1. Complaint

572. Generally

Complaint in 46 USCS Appx § 688 action is proper when in usual form of seaman's libel for damages for negligence and wages; claims need not be separately stated. Kongs v Oceanic & Oriental Nav. Co. (1931, DC Cal) 47 F2d 650.

Plaintiff is entitled to provisions of 46 USCS Appx § 688 if pleaded facts entitle him to it. Cissel v C. H. Sprague & Son, Inc. (1935) 154 Misc 391, 276 NYS 135, 1934 AMC 1212.

573. Necessary allegations

Jones Act (46 USCS Appx § 688) is not properly invoked where complaint alleges only that Greek resident was injured aboard foreign vessel, since where complaint is silent as to citizenship of seaman, as well as other factors, complaint clearly fails to allege sufficient facts to bring case within scope of Act. Filippou v Italia Societa per Azioni di Navizione (1966, DC Mass) 254 F Supp 162.

574. --Status as seaman

In action, under 46 USCS Appx § 688 for wrongful death of seaman, complaint alleging that deceased was employed as seaman on vessel plying navigable waters was sufficient, and district court had jurisdiction under 46 USCS Appx § 688. Pacific Atlantic S.S. Co. v Hutchison (1957, CA9 Cal) 242 F2d 691, 1957 AMC 1135.

575. --Negligence

Injured party is bound to set forth every ground of negligence upon which he relies; he cannot assert these grounds in successive actions to recover for same wrong and injury. Baltimore S.S. Co. v Phillips (1927) 274 US 316, 71 L Ed 1069, 47 S Ct 600.

Gravamen of action under 46 USCS Appx § 688 is negligence of employer, and such negligence must be alleged and proved. De Zon v American President Lines, Ltd. (1942, CA9 Cal) 129 F2d 404, 1942 AMC 1271, affd 318 US 660, 87 L Ed 1065, 63 S Ct 814, reh den 319 US 780, 87 L Ed 1725, 63 S Ct 1025, 1943 AMC 483.

In action under 46 USCS Appx § 688, unseaworthiness of vessel or equipment may be relied upon as element of negligence as averment of duty to provide seaworthy vessel and equipment, violation of which constitutes negligence. Mullen v Fitz Simons & Connell Dredge & Dock Co. (1948, CA7 Ill) 172 F2d 601, cert den 337 US 959, 93 L Ed 1758, 69 S Ct 1534.

Jones Act plaintiff met "featherweight" burden of proof of negligence in alleging that plaintiff's helper, in lifting heavy cylinder, favored his earlier-injured ankle, thereby shifting disproportionate amount of weight to plaintiff, resulting in plaintiff's injuries. Bommarito v Penrod Drilling Corp. (1991, CA5 La) 929 F2d 186.

Declaration alleging in one count negligence of fellow servants and in another count negligent failure to provide proper appliances stated but single cause of action, it being necessary to allege every ground of negligence on which recovery is sought. Slaney v Cromwell (1930, DC Mass) 38 F2d 304, 1930 AMC 1001.

Allegation that officers of vessel improperly set plaintiff's arm does not amount to allegation of negligent failure to give proper and immediate medical attention and relief. Brown v South Atlantic S. S. Co. (1930, DC Ga) 1930 AMC 462.

All facts constituting negligence or unseaworthiness must be pleaded. Renew v United States (1932, DC Ga) 1 F Supp 256, 1932 AMC 1110.

Any distinction between negligence under 46 USCS Appx § 688 and unseaworthiness has all but disappeared; unseaworthiness may result from negligent operation of vessel, and it is proper to plead two causes of action together. Puamier v Barge BT 1793 (1974, ED Va) 395 F Supp 1019, 17 UCCRS 745.

Ordinary seaman suing under 46 USCS Appx § 688 to recover for injuries he suffered when he stepped from hatch cover onto pile of pallets that flipped due to his weight established that employer was negligent, where pallets should have been properly stowed or taken off ship rather than stacked on bow in unstable pile, and fact that they were not properly stowed, and were in plain sight for months, demonstrated that employer knew or should have known of negligent condition. Peterson v Great Hawaiian Cruise Line, Inc. (1998, DC Hawaii) 33 F Supp 2d 879, 1998 AMC 2488.

Allegations of 46 USCS Appx § 688 complaint did not attempt to explain cause of accident so as to preclude application of res ipsa loquitur doctrine. Lejeune v General Petroleum Corp. (1932) 128 Cal App 404, 18 P2d 429.

Under 46 USCS Appx § 688, charge of negligence, when made in complaint, does not require any charge that vessel was unseaworthy. Hendriksen v Chicago (1946) 330 Ill App 141, 70 NE2d 848.

Seaman may proceed under 46 USCS Appx § 688 where his pleading indicates such right, and he may rely upon two different acts of negligence without being required to elect, where both seek identical remedy. Cissel v C. H. Sprague & Son, Inc. (1935) 154 Misc 391, 276 NYS 135.

576. --Injury or death

Averment of pain and suffering in 46 USCS Appx § 688 suit does not introduce new cause of action requiring separate statement. Thornton v Puget Sound Power & Light Co. (1930, DC Wash) 49 F2d 347.

Allegation of "severe and painful personal injuries in his abdomen," while vague and completely lacking in technical description, was sufficient to enable respondent to prepare responsive pleading and respondent's exception to libel on this ground was overruled; precise nature of personal injuries did not come to issue at this early stage of pleading; respondent could avail himself of discovery procedure provided by Admiralty Rules to obtain further information needed. Platt v Chesapeake & O. R. Co. (1948, DC Ohio) 82 F Supp 968.

Deckhand who climbed over port side of sinking vessel and swam at most 100 feet to safety has Jones Act (46 USCS Appx § 688) claim dismissed, where deckhand reported no physical injuries beyond being "little skinned up and bruised" but alleges emotional injuries caused by post-traumatic stress disorder, because seamen may not recover for purely emotional or trivial physical injury under § 688. Briscoe v Devall Towing & Boat Service, Inc. (1992, WD La) 799 F Supp 39.

Complaint must show physical injury or physical contact resulting in injury, and allegations of mental anguish resulting from threats of bodily injury are not sufficient; word "mistreated" used in complaint does not import physical contact. Edmond v American-Hawaiian S.S. Co. (1946) 187 Misc 723, 65 NYS2d 433, affd 274 App Div 1035, 85 NYS2d 915.

577. ----In course of employment

Libel under 46 USCS Appx § 688 which failed to allege that injury sustained by libelant was suffered in course of his employment, or fact from which inference that he was so injured could be drawn, and which alleged that he was employed to and including January 15, 1945 and that his injury occurred on January 16, 1945, was defective. Hoiness v United States (1947, DC Cal) 75 F Supp 289, app dismd (CA9 Cal) 165 F2d 504, revd on other grounds 335 US 297, 93 L Ed 16, 69 S Ct 70.

578. ----Place of injury

Allegation that libellant, in course of his duties, was returning to his vessel when he was jumped upon by certain men, names unknown, and without any fault on his part sustained severe and permanent personal injuries was insufficient for not identifying locality of attack or disclosing its proximity to ship. Siclana v United States (1944, DC NY) 56 F Supp 442, 1944 AMC 696.

Place of injury is necessary fact to be alleged to invoke application of Jones Act (46 USCS Appx § 688), thus complaint which is silent to place where injury occurred is dismissed as insufficient. Filippou v Italia Societa per Azioni di Navizione (1966, DC Mass) 254 F Supp 162.

579. --Damages

Since 46 USCS Appx § 688 incorporates by reference 45 USCS § 51 (part of Federal Employers' Liability Act) dependency of widow and minor children on deceased seaman is presumed while pecuniary loss must be alleged and proved if beneficiaries are parents of adult child. Cleveland Tankers, Inc. v Tierney (1948, CA6 Ohio) 169 F2d 622.

In 46 USCS Appx § 688 action at law, seaman may claim damages for negligence and loss of wages without separately stating them in complaint. Kongs v Oceanic & Oriental Nav. Co. (1931, DC Cal) 47 F2d 650, 1931 AMC 674.

580. --Reference to 46 USCS Appx § 688

Where there has been no objection to reception of evidence made admissible by 46 USCS Appx § 688, nor to assumption by trial court that case was being tried under 46 USCS Appx § 688, appeals court will regard declaration as amended to conform to issues tried. American Sugar Refining Co. v Nassif (1930, CA1 Mass) 45 F2d 321.

Statement in complaint that plaintiff elects to bring action under 46 USCS Appx § 688 is not controlling; stated facts control. Keefe v Matson Nav. Co. (1930, DC Wash) 46 F2d 123.

Court will presume that seaman's action alleging negligence is brought under 46 USCS Appx § 688, although 46 USCS Appx § 688 is not pleaded. Burkholder v United States (1944, DC Pa) 56 F Supp 106.

Although complaint does not plead 46 USCS Appx § 688, action will be treated as if brought under 46 USCS Appx § 688 where allegations clearly reveal reliance upon rights conferred by that statute. Moltke v Intercontinental Shipping Corp. (1949, DC NY) 86 F Supp 662.

Declaration in complaint on negligence, which merely stated that defendant was also liable under 46 USCS Appx § 688 was not statement that plaintiff was suing under 46 USCS Appx § 688, but mere conclusion of law. Kosek v Pan-Atlantic S.S. Corp. (1950, DC NY) 94 F Supp 132.

No express reference in complaint to 46 USCS Appx § 688 is necessary, for judicial notice of acts of Congress must be taken by state courts. Dowski v Merritt-Chapman & Scott Corp. (1946, Sup) 65 NYS2d 890, affd 271 App Div 874, 66 NYS2d 635; Rooker v Alaska S.S. Co. (1936) 185 Wash 71, 53 P2d 295, cert den 299 US 552, 81 L Ed 406, 57 S Ct 14.

581. Joinder or severance of claims

Count for wages, maintenance, and cure may be joined with count for compensatory damages. Stevens v R. O'Brien & Co. (1933, CA1 Mass) 62 F2d 632, 1933 AMC 871; Brown v South Atlantic S. Co. (1930, DC Ga) 1930 AMC 462.

In action under 46 USCS Appx § 688, it was seaman's right to recover in one action for all impairment due to his employers' negligence, including necessary medical expenses and loss of wages resultant from his employers' negligence. Van Camp Sea Food Co. v Nordyke (1944, CA9 Cal) 140 F2d 902, 1944 AMC 559, cert den 322 US 760, 88 L Ed 1587, 64 S Ct 1278.

Simple economy of effort and efficient administration of justice prove propriety of joinder of counts for relief under 46 USCS Appx § 688, unseaworthiness, and for maintenance and cure in one suit, and submission of whole case to jury, and entering judgment on all counts in accordance with jury's verdict. Mitchell v Trawler Racer, Inc. (1959, CA1 Mass) 265 F2d 426, 1959 AMC 1088, revd on other grounds 362 US 539, 4 L Ed 2d 941, 80 S Ct 926 (superseded by statute as stated in Jones & Laughlin Steel Corp. v Pfeifer, 462 US 523, 76 L Ed 2d 768, 103 S Ct 2541, on remand (CA3) 711 F2d 570).

Where plaintiff joined maintenance claim with 46 USCS Appx § 688 and unseaworthiness claims, all arising out of the same facts, trial court erred when it declined to submit to jury maintenance and cure claim after it had submitted other two claims. Lewis v Federal Barge Lines, Inc. (1965, CA7 Ill) 342 F2d 560, 1965 AMC 1491.

It is proper to proceed with claims for unseaworthiness, maintenance and cure, and 46 USCS Appx § 688 in one admiralty action. Haskins v Point Towing Co. (1968, CA3 Pa) 395 F2d 737, 12 FR Serv 2d 918, later app (CA3 Pa) 421 F2d 532, cert den 400 US 834, 27 L Ed 2d 66, 91 S Ct 68.

Remedy for negligence provided by 46 USCS Appx § 688 is not alternative to one afforded by general maritime law; it is cumulative remedy, and seaman is free to plead either or both in same action. Yates v Dann (1951, DC Del) 11 FRD 386.

There is no bar to joinder of claims under 46 USCS Appx § 688 with one under general maritime law, and general maritime law claim is not subsumed in claim under 46 USCS Appx § 688. Wood v Standard Products Co. (1978, ED Va) 456 F Supp 1098.

Joinder of Jones Act (46 USCS Appx § 688) claim with product liability claim does not affect application of proportionate fault doctrine except where otherwise insignificant comparative negligence of plaintiff would reduce recovery. Bass v Phoenix Seadrill/78, Ltd. (1983, ED Tex) 562 F Supp 790, amd on other grounds (ED Tex) 573 F Supp 866 and affd in part and revd in part on other grounds (CA5 Tex) 749 F2d 1154.

582. --Claim for maintenance and cure

Seaman's maintenance and cure claim joined with 46 USCS Appx § 688 claim must be submitted to jury when both arise out of one set of facts. Fitzgerald v United States Lines Co. (1963) 374 US 16, 10 L Ed 2d 720, 83 S Ct 1646, 17 FR Serv 2d 774, reh den 375 US 870, 11 L Ed 2d 99, 84 S Ct 26 and motion den 376 US 901, 11 L Ed 2d 604, 84 S Ct 655.

Count for maintenance and cure on account of injuries received in service of ship may be properly joined with claim under 46 USCS Appx § 688. Nolan v General Seafoods Corp. (1940, CA1 Mass) 112 F2d 515.

Libellant in admiralty under 46 USCS Appx § 688 may join either as independent or as alternate, claims for maintenance, cure, and wages. Runyan v Great Lakes Dredge & Dock Co. (1944, CA6 Ohio) 141 F2d 396.

Joinder of counts for negligence under 46 USCS Appx § 688 and for maintenance and cure under general maritime law was proper. Bay State Dredging & Contracting Co. v Porter (1946, CA1 Mass) 153 F2d 827.

Seaman may join with cause of action under 46 USCS Appx § 688, separate causes of action for maintenance and cure. Mullen v Fitz Simons & Connell Dredge & Dock Co. (1948, CA7 Ill) 172 F2d 601, cert den 337 US 959, 93 L Ed 1758, 69 S Ct 1534.

Where seaman filed suit for damages in two counts, one for negligence under 46 USCS Appx § 688, and other for maintenance and cure, and court instructed jury that in awarding damages for negligence it should consider that plaintiff also had right to maintenance and cure, and defendant did not object to charge, defendant could not later object to verdict on ground that there was duplication in rendering recovery on both counts. Cervo v Isbrandtsen Co. (1949, CA2 NY) 178 F2d 919.

Counts in complaint claiming damages under 46 USCS Appx § 688, and also for maintenance and cure involved misjoinder of causes of action in tort and contract. Johnson v Oil Transport Co. (1931, DC Md) 1931 AMC 1227.

46 USCS Appx § 688 did not affect right of seaman to claim both indemnity and maintenance and cure in one action. Flynn v Panama R. Co. (1923) 121 Misc 239, 201 NYS 56.

Injured seaman's remedy under 46 USCS Appx § 688 for personal injuries, and his remedy under general maritime law for maintenance, wages and care may be enforced in single action at law in state court. Oceanic Fisheries Co. v United States Fidelity & Guaranty Co. (1941) 9 Wash 2d 484, 115 P2d 714.

583. --Claim for unseaworthiness

Injured seaman who wishes to sue for both unseaworthiness and negligence under 46 USCS Appx § 688 must do so in single proceeding; these claims are but alternative grounds of recovery for single clause of action. McAllister v Magnolia Petroleum Co. (1958) 357 US 221, 2 L Ed 2d 1272, 78 S Ct 1201 (not followed Public Admr. of County of New York v Angela Compania Naviera, S.A. (CA2 NY) 592 F2d 58, cert dismd 443 US 928, 61 L Ed 2d 897, 100 S Ct 15) and (ovrld on other grounds Moragne v States Marine Lines, Inc., 398 US 375, 26 L Ed 2d 339, 90 S Ct 1772, on remand (CA5 Fla) 446 F2d 906) as stated in Sistrunk v Circle Bar Drilling Co. (CA5 La) 770 F2d 455, reh den, en banc (CA5 La) 775 F2d 301 and reh den, en banc (CA5 La) 775 F2d 301 and cert den (US) 89 L Ed 2d 318, 106 S Ct 1205.

Joinder of claim under 46 USCS Appx § 688 and claim under seaworthiness doctrine is proper, and plaintiff may not be compelled to elect as between 46 USCS Appx § 688 claim and unseaworthiness claim. Williams v Tide Water Associated Oil Co. (1955, CA9 Wash) 227 F2d 791, cert den 350 US 960, 100 L Ed 834, 76 S Ct 348.

Seaman can try claims of negligence under 46 USCS Appx § 688 and unseaworthiness under general maritime law simultaneously to same jury. Troupe v Chicago, Duluth & Georgian Bay Transit Co. (1956, CA2 NY) 234 F2d 253, 1956 AMC 1367.

While seaman may plead and go to trial on theories of liability based on negligence under 46 USCS Appx § 688 and unseaworthiness, he must elect to present his entire cause of action either as civil action under § 688 or as libel in admiralty. Leith v Oil Transport Co. (1963, CA3 Pa) 321 F2d 591 (disagreed with Pure Oil Co. v Suarez (CA5 Fla) 346 F2d 890, affd 384 US 202, 16 L Ed 2d 474, 86 S Ct 1394).

Plaintiff filing complaint at law under 46 USCS Appx § 688 and demanding jury trial has right to join with it and have tried before jury as pendent to it, his claims under maritime law for unseaworthiness and for maintenance and cure. Haskins v Point Towing Co. (1968, CA3 Pa) 395 F2d 737, 12 FR Serv 2d 918, later app (CA3 Pa) 421 F2d 532, cert den 400 US 834, 27 L Ed 2d 66, 91 S Ct 68.

General maritime death claim for unseaworthiness may be joined with seaman's death claim under 46 USCS Appx § 688. Landry v Two R. Drilling Co. (1975, CA5 La) 517 F2d 675.

Jones Act claim may be joined with wrongful death claim for nonpecuniary damages based on general maritime law where incident does not arise on high seas, and nonpecuniary damages may be recovered under unseaworthiness claim. Hlodan v Ohio Barge Line, Inc. (1980, CA5 Miss) 611 F2d 71.

Causes of action based upon negligence under 46 USCS Appx § 688 and unseaworthiness under general maritime principles may be joined in same complaint. Erickson v Shamrock Towing Co. (1948, DC NY) 81 F Supp 850, 1948 AMC 850.

Action by employee against employer for personal injuries, based upon negligence and unseaworthiness, constituted single cause of action, and upon remand to state court allegations of unseaworthiness in complaint would not be stricken. Nickerson v American Dredging Co. (1955, DC NJ) 129 F Supp 602.

Claim of unseaworthiness may be combined with 46 USCS Appx § 688 action for negligence. Nice v Chesapeake & O. R. Co. (1969, WD Mich) 305 F Supp 1167.

Claims for negligence and unseaworthiness are alternate grounds of recovery for single cause of action and if seaman is to sue for both he must do so in single proceeding. West v M/V Coan River (1970, ED Va) 312 F Supp 1038, supp op (DC Va) 330 F Supp 966.

584. --Different claims against different defendants

Cause of action against one defendant under 46 USCS Appx § 688 cannot be joined with cause of action against another defendant based on common-law liability. Schotis v North Coast Stevedoring Co. (1927, DC Wash) 24 F2d 591, 1928 AMC 921.

Action against two defendants to recover for death of seaman as result of collision between three tugs would not be severed upon motion of one of defendants for severance, although liability of one of them arose under 46 USCS Appx § 688, and of other under state death statute, where concurrent negligence of both had given rise to one single indivisible cause of action against both. Reilly v Moran Towing & Transp. Co. (1946, Sup) 62 NYS2d 571, affd 270 App Div 892, 62 NYS2d 600.

585. Amendment

Even though seaman in suit under 46 USCS Appx § 688 abandoned one negligence claim and adopted new theory of negligence, without amending his petition as required by District Court rule, court will assume rule was properly complied with and will decide case on its merits. Field v Waterman S.S. Corp. (1939, CA5 Ala) 104 F2d 849.

Although plaintiff abandoned one charge of negligence and relied on another without amending his petition as is provided by USCS Rules of Civil Procedure, Rule 15(b), Court of Appeals will assume that rule was properly complied with and decide case on its merits. Field v Waterman S.S. Corp. (1939, CA5 Ala) 104 F2d 849, 1939 AMC 1555.

Seaman in action under 46 USCS Appx § 688 was allowed to amend complaint at opening of trial to change date of injury and ship on which injury occurred; amendment did not assert new cause of action where both vessels were operated under contracts with United States and true facts as to time and place of assault were known to, or could reasonably have been ascertained by, defendant, whereas seaman had suffered from recurrent amnesia, which made it difficult for him to remember true facts. Kelcey v Tankers Co. (1954, CA2 NY) 217 F2d 541.

District court deprived defendant of his right to trial by jury by giving retrospective application to plaintiff's amendments stating claims within court's admiralty jurisdiction under USCS Rules of Civil Procedure, Rule 9 where original complaint demanded jury trial under USCS Rules of Civil Procedure, Rule 38, and defendant did not relinquish or consent to non-jury trial under USCS Rules of Civil Procedure, Rule 39. Johnson v Penrod Drilling Co. (1972, CA5 Tex) 469 F2d 897, 16 FR Serv 2d 766, on reh (CA5 Tex) 510 F2d 234, cert den 423 US 839, 46 L Ed 2d 58, 96 S Ct 68, 96 S Ct 69 and (disapproved on other grounds Norfolk & W. R. Co. v Liepelt, 444 US 490, 62 L Ed 2d 689, 100 S Ct 755, 10 Fed Rules Evid Serv 130, reh den 445 US 972, 64 L Ed 2d 250, 100 S Ct 1667 and (not followed Yukon Equipment, Inc. v Gordon (Alaska) 660 P2d 428, CCH Prod Liab Rep P 9563) and (not followed Klawonn v Mitchell, 105 Ill 2d 450, 86 Ill Dec 478, 475 NE2d 857)) as stated in Flanigan v Burlington Northern, Inc. (CA8 Mo) 632 F2d 880, cert den 450 US 921, 67 L Ed 2d 349, 101 S Ct 1370 and (disapproved on other grounds Jones & Laughlin Steel Corp. v Pfeifer, 462 US 523, 76 L Ed 2d 768, 103 S Ct 2541, on remand (CA3) 711 F2d 570) and (ovrld on other grounds Culver v Slater Boat Co. (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90).

District court did not abuse its discretion in refusing to allow amendment to Jones Act complaint to assert new cause of action based on unseaworthiness where motion was filed only after district court granted defendant's motion for summary judgment and plaintiff gave no adequate reason to excuse delay. Colon v Apex Marine Corp. (1994, CA1 RI) 35 F3d 16.

In cause of action under 46 USCS Appx § 688, amendment would be permitted so as to allow complaint to state it accrued less than two years before statute of limitations was extended from two to three years by 45 USCS § § 51 et seq., and less than three years prior to date of motion to amend complaint. Gahling v Colabee S.S. Co. (1941, DC Pa) 37 F Supp 759, 1941 AMC 600.

Action by seaman under 46 USCS Appx § 688 was dismissed, because suit was filed against general agent instead of United States, and cross motion of plaintiff to amend by alleging tort of misrepresentation as to true owner of vessel was denied. Murphy v Parry Navigation Co. (1950, DC NY) 90 F Supp 725, 1950 AMC 561.

Amendment increasing ad damnum clause toward end of trial is in conformity with spirit of USCS Rules of Civil Procedure that amendments be freely allowed in interests of justice. Yates v Dann (1958, DC Del) 167 F Supp 174, 1 FR Serv 2d 569, 1959 AMC 215.

Seaman does not introduce new cause of action when he amends complaint under Federal Employers' Liability Act (45 USCS § § 51 et seq.) to seek recovery under Jones Act (46 USCS Appx § 688). Mach v Pennsylvania R. Co. (1960, WD Pa) 198 F Supp 471.

Plaintiff who originally filed his complaint alleging simple negligence under 46 USCS Appx § 688 was given leave to amend his complaint to include demand for punitive damages. Gunnip v Warner Co. (1968, ED Pa) 43 FRD 365, 12 FR Serv 2d 176, 1968 AMC 957.

If it is possible by amendment of petition to state cause of action, suit should not be dismissed on exception or motion on part of defendant. Bourg v J. Ray McDermott & Co. (1951, La App, Orleans) 52 So 2d 717, later app (La App, Orleans) 70 So 2d 225.

586. Variance

In seaman's action to recover for injuries sustained by dropping wrench on his toe, there is no fatal variance between allegations in complaint that wrench was in unseaworthy condition in that "teeth" and grip of wrench were worn and defective, and testimony describing wrench as smooth-faced and without teeth; in any event reliance upon such variance is waived by defendant's expressly disclaiming surprise at trial. Michalic v Cleveland Tankers, Inc. (1960) 364 US 325, 5 L Ed 2d 20, 81 S Ct 6.

In absence of motion to make complaint more certain, slight variances which do not tend to mislead defendant are not ground for reversal. Ziegler v Alaska Portland Packers' Ass'n (1931) 135 Or 359, 296 P 38.

587. Miscellaneous

Complaint in action by seaman to recover damages for injuries sustained by plaintiff while member of crew of defendant's vessel which included as part of cause of action law action based on failure of defendant to obtain insurance required by state workmen's compensation law, did not state cause of action under 46 Appx USCS § 688. Serbokov v Great La



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