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Gladden v. Henderson

decided: November 2, 1967.

THEODORE GLADDEN, APPELLANT,
v.
P. HENDERSON & CO. V. LAVINO SHIPPING COMPANY, THIRD-PARTY DEFENDANT



Biggs, Freedman and Seitz, Circuit Judges.

Author: Freedman

Opinion OF THE COURT

FREEDMAN, Circuit Judge.

In this diversity case a jury rejected the claim of plaintiff, a longshoreman, that while working on defendant's vessel he sustained personal injuries as a result of the negligence of defendant and the unseaworthiness of the vessel. Plaintiff claimed that while operating a winch he was struck in the back by a block or pulley housing which had broken loose from its inadequate rigging. He seeks a new trial because of errors which he claims occurred in the course of the trial.

I.

Plaintiff contends that the district court erred in permitting him to be cross-examined regarding the forbidden matter of workmen's compensation benefits. To understand the objection it is necessary to consider the circumstances in which the cross-examination occurred.

On direct examination plaintiff testified that for seven weeks after the accident he was treated by a Dr. Krause and was unable to work. After the first day following his return to work he suffered stiffness and pain, but he did not see Dr. Krause again. Asked why he did not return to Dr. Krause, he replied: "Well, during the seven weeks that I was out of work seeing Dr. Krause my bills got behind and when I went back to work, that was one of the main reasons I went back to work, was to try to catch my bills up and support my family." It was this testimony which brought about the cross-examination of which plaintiff complains.

After plaintiff had reiterated that his return to work was because of financial distress, defendant's counsel asked him: "During this period that you were receiving treatment from Dr. Krause, did your employer make it possible for you to receive any financial assistance?" Plaintiff's counsel objected and added: "Any benefits secured by Mr. Gladden must be repaid." The court in effect overruled the objection and plaintiff replied that he had received some such financial assistance, but that it was not what he was accustomed to earn on the job; it was, he said, about $70 a week.*fn1 In the course of a colloquy his counsel stated that Dr. Krause had been paid for his services by the third party defendant. The trial judge indicated that while he would ordinarily have forbidden this cross-examination, he would permit it on the ground that plaintiff himself had opened the subject in his testimony that he had returned to work and had not gone back to Dr. Krause because of his straitened financial circumstances.

Although plaintiff refers to the cross-examination as dealing with the receipt of workmen's compensation, neither the questions asked nor the colloquies which surrounded them describe the financial assistance as coming from workmen's compensation or its equivalent. The problem, however, remains the same, for the collateral benefit rule is not limited to workmen's compensation payments. See the comprehensive discussion and citations by Chief Judge Biggs in Feeley v. United States, 337 F.2d 924, 929-931, 12 A.L.R.3d 1228 (3 Cir. 1964).

It is now well settled in Pennsylvania that payments of workmen's compensation, unemployment and other collateral benefits should remain unknown to a jury in weighing damages,*fn2 because of the danger of prejudicial effect, even when offered as logically relevant evidence affecting the credibility of a plaintiff's claim of the extent of his injury.*fn3 The same principle is the foundation for the inadmissibility of evidence regarding collateral benefits or conduct relating to their receipt in cases arising under the Federal Employers' Liability Act*fn4 and the Jones Act.*fn5

Here, however, plaintiff on direct examination brought into the case an additional, affirmative element by testifying that he had returned to work and had not visited Dr. Krause again because he had fallen behind in the payment of his bills and wanted to catch up on them and support his family. Defendant was not required to leave this testimony unchallenged and had the right to ask plaintiff on cross-examination whether he had received financial assistance, as affecting the credibility of his assertion.*fn6 To have forbidden such cross-examination would have conferred on plaintiff the unparalleled right to give testimony on direct examination with immunity from inquiry on cross-examination. This is what distinguishes the present case from Eichel v. New York Central Railroad Co., 375 U.S. 253, 84 S. Ct. 316, 11 L. Ed. 2d 307 (1963), upon which plaintiff relies. In that case, brought under the Federal Employers' Liability Act, the plaintiff had not affirmatively testified in such a manner as to warrant any effort at contradiction by cross-examination. Instead, defendant there attempted to introduce prejudicial evidence of disability pension payments simply because it was logically relevant on the extent and duration of the plaintiff's disability. The barriers which have been created against the admission of otherwise relevant evidence because of its prejudicial effect do not extend to the affirmative volunteering by a plaintiff of testimony which breaks into this restricted area.

If plaintiff had not added his affirmative testimony on direct examination he would have had the advantage of the collateral benefit rule and the jury would have been required to assess his damages without any knowledge of the collateral benefit he received. They would not have had before them the effect it might have had on plaintiff's claim of extensive and continued impairment of his health. But the collateral benefit rule cannot be made a springboard from which a plaintiff may go forward with affirmative evidence that he returned to work while he was still ailing, because of financial need and then seek immunity from cross-examination regarding it. The boundary of silence was crossed when plaintiff affirmatively presented on direct examination the reason why he had returned to work after seven weeks and had not again visited his physician. The trial court therefore was justified in opening the door for cross-examination for the narrow purpose of testing the credibility of plaintiff's assertion. Moreover, plaintiff's counsel stated without objection that plaintiff was obliged to repay the $70 a week assistance, so that any suspicion of a double recovery was eliminated.

II.

Plaintiff claims that the trial judge erred in refusing to permit the introduction in evidence of a report of the accident known as Form 202, which is required under the Longshoremen's and Harbor Workers' Compensation Act.*fn7 The form was filed by plaintiff's employer, Lavino, the third party defendant. Lee, who prepared the report for Lavino, was called as plaintiff's witness and testified that he prepared the form on the basis of a so-called pier report which had been prepared by Doyle, Lavino's supervisor. He also testified that neither Doyle nor Donnelly, Lavino's ...


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