Opinion
No. 68, Docket 22444.
Argued November 10, 1952.
Decided December 1, 1952. Rehearing Denied December 22, 1952.
Henry Fogler, New York City, for Felipe Fernandez, plaintiff-appellant.
Burlingham, Veeder, Clark Hupper, New York City, Benjamin E. Haller, Paul L. Murphy and Eugene Underwood, New York City, of counsel, for United Fruit Co., defendant-appellee.
Before AUGUSTUS N. HAND, CHASE and CLARK, Circuit Judges.
This appeal is singularly lacking in merit and appellant's brief surely should not have been cluttered up with unfounded charges against the appellee's counsel. The only question before this court meriting any discussion is whether the jury should have been allowed to deal with the plaintiff's claim for recovery on the basis of alleged unseaworthiness. The plaintiff argues that this should have been done because liability for unseaworthiness had been asserted in the complaint and the pre-trial order had stated that none of the issues raised by the pleadings were abandoned. But the pre-trial order enumerated the only issues to be dealt with at the trial, and these were limited to questions raised by the allegations of negligence. If the plaintiff wished to present other issues at the trial he should have asked for an amendment of the pre-trial order, which he failed to do. We find no error in the conduct of the trial. The verdict for the defendant was, therefore, properly allowed to stand.