USCA1 Opinion

       [NOT FOR PUBLICATION   NOT TO BE CITED AS PRECEDENT]

                 United States Court of Appeals

                     For the First Circuit









No. 97-1516



                          DAVID DANIELS,



                      Plaintiff, Appellant,



                                v.



                  DIAMOND GIRL FISHERIES, INC.,



                       Defendant, Appellee.









No. 97-1709



                          DAVID DANIELS,



                       Plaintiff, Appellee,



                                v.



                  DIAMOND GIRL FISHERIES, INC.,



                      Defendant, Appellant.



                       ____________________





          APPEALS FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



        [Hon. George A. O'Toole, Jr., U.S. District Judge]









                              Before



                     Torruella, Chief Judge,

                 Aldrich, Senior Circuit Judge,

                   and Boudin, Circuit Judge.

                                

                                









                       ____________________





     Thomas M. Bond with whom David B. Kaplan and The Kaplan/Bond

Group were on brief for David Daniels.

     Joseph A. Regan with whom Paige L. Tobin and Regan & Kiely LLPwere on brief for Diamond Girl Fisheries.











July 1, 1998







                                

                                



   ALDRICH, Senior Circuit Judge.  According to the

  complaint filed March 18, 1996, plaintiff David Daniels, when

  a member of the crew of the lobster vessel F/V DIAMOND GIRL,

  injured his back, on or about April 1, 1993, as the result of

  an incident in the pilot house with the captain.  Either the

  captain pushed him against a console on his way to the galley

  for a cup of coffee (plaintiff's account), or plaintiff,

  "horsing around," grabbed the captain from behind and they both

  stumbled and plaintiff fell against a couch (captain's

  account).  Plaintiff had been with the vessel for some time

  and, admittedly, had engaged in such horseplay with the captain

  (without injury) on a prior occasion.

    Plaintiff brought suit for negligence under the Jones

  Act, 46 U.S.C.  688, as well as for unseaworthiness and

  maintenance and cure.  The jury found for the defendant on

  negligence and unseaworthiness, and plaintiff appeals on the

  ground that the court improperly admitted a recorded statement

  of an absent witness under Fed. R. Evid. 804(b)(5), now Rule

  807, substantially confirming the captain's testimony.  On

  these counts we affirm.

    Without going into details, this ruling stretched the

  residual hearsay exception, intended for exceptional occasions,

  perhaps to the breaking point.  But also, in our opinion, the

  captain's account is so strong, when viewed against plaintiff's

  extraordinary one, that we are not interested in a new trial

  simply because it was, perhaps, wrongfully corroborated. 

  Plaintiff's account was, "The captain came by me, pushed me out

  of the way.  And in the process of doing that, I banged my back

  on the edge of the console and had nothing but trouble ever

  since."  Passing the fact that plaintiff waited two years and

  11 months before suing, "nothing but trouble" consisted of

  remaining with the DIAMOND GIRL, at a full percentage share,

  for a year and a half, leaving, when her earnings decreased, to

  go first with one, and then another, vessel, in each case

  stating, in writing, that he was well and capable of doing a

  full job.  Equally, why would the captain leave the wheel, when

  they were running a river to the dock, to enjoy a cup of

  coffee, when he could readily have asked plaintiff to get him

  one, or, at the least, put him at the wheel rather than shove

  him against the console and depart?  All this may have

  happened, but we think one trial is enough.

    There is a second matter, the jury's award of

  maintenance and cure, which defendant appeals.  Plaintiff's

  demands, and the jury findings, may seem large, particularly

  having in mind that he continued to work on board defendant's

  vessel (and even signed a receipt for reimbursement for a

  chiropractor, but denied having been paid), but the appeal was

  not well taken.  It reads, "from the Jury Verdict on Count III

  of the plaintiff's complaint . . . and the court order denying

  Judgment as a Matter of Law entered in this action . . . ."  It

  is elementary that one cannot appeal from a verdict, but only

  from some order of the court, for example, denying a motion to

  set the verdict aside as excessive.  Defendant failed to file

  such a motion.  The motion for judgment as a matter of law was

  procedurally proper, but substantively inappropriate because

  there was at least some evidence in plaintiff's favor that

  could have been credited.

    Affirmed.  No costs to either party.