
    Arnold MURRAY, Plaintiff, v. TOMLINSON FLEET CORPORATION, Defendant.
    Civ. A. No. 7386.
    United States District Court W. D. New York.
    March 26, 1958.
    
      Desmond & Drury, Buffalo, N. Y. (John E. Drury, Jr., Buffalo, N. Y., of counsel), for plaintiff.
    Russell V. Bleecker, Cleveland, Ohio and N. John Thomas, Buffalo, N. Y., for defendant.
   MORGAN, District Judge.

Defendant moves for judgment notwithstanding the jury verdict, or for a new trial.

As to the motion for judgment n. o. v., there was sufficient evidence for the jury to have reasonably made the finding which it did, and the motion must be denied.

As to the motion for a new trial, plaintiff’s first cause of action for negligence and unseaworthiness included medical expense, usually an element of maintenance and cure, plaintiff’s second cause of action. In view of this, it was not inappropriate for the jury to return a single verdict on both causes, in spite of the stipulation that maintenance and cure was worth $6 per day, or that maintenance was claimed only in the second cause. At the time of the verdict, in response to a question by the court, the foreman clearly indicated that the award encompassed maintenance and cure. Thus the jury found for plaintiff on both causes in its single award, and defendant is not thereby necessarily foreclosed from arguing excessiveness of the verdict.

The court is cognizant of the reasoning in Affolder v. New York, C. & St. L. R. Co., 339 U.S. 96, 70 S.Ct. 509, 94 L.Ed. 683; Frasier v. Public Service Interstate Transp. Co., 2 Cir., 244 F.2d 668; Ferguson v. Post, 2 Cir., 243 F.2d 144 and Butler v. General Motors Corp., 2 Cir., 240 F.2d 92, and on the entire record herein is of the opinion that the total verdict is excessive. Therefore, unless plaintiff agrees to accept a verdict of $12,500, the motion of defendant for a new trial is granted.

The other grounds urged as a basis for a new trial by defendant relate principally to the charge of the court. Having already ruled on those grounds to which exception was taken, the court does not feel it necessary to repeat the process. Further, there is no merit to defendant’s supplemental contention that the questioning of witness Herbst by the court was substantially prejudicial to defendant.

Motion for judgment n. o. v. is denied. Motion for new trial, on the grounds of excessiveness of verdict, is granted unless plaintiff agrees to accept a verdict of $12,500.

Submit order on notice.  