Ramon Galarza v. Alcoa Steamship Company

[34 A.D.2d 907 Page 907] On the appeal from the judgment for plaintiff in this action brought under the Jones Act (U. S. Code, tit. 46, § 688) to
recover for injuries sustained by a seaman in March, 1963, the critical question is whether the pleadings and proof properly
support a substantial award. The plaintiff claimed an injury to his back and alleged that his present condition was due to
the accident sued for. The defendant contended that his condition was due to a prior accident and to a deteriorating process
long antedating the 1963 accident and not affected by it. Faced with this controversy, the plaintiff sought and obtained on
the trial an amended pleading based on the contention that the accident caused an exacerbation of a pre-existing condition.
The difficulty with the theory embraced in the amendment is that it was originally contended for by no one and the testimony
of the plaintiff's doctors did not support it. It is not supported by the evidence. Moreover, it was unwise exercise of discretion
to grant the motion during the trial to increase the ad damnum clause. (See Natale v. Pepsi-Cola Co., 7 A.D.2d 282; 8 A.D.2d
781.) Although the permission to increase the ad damnum clause lies within the sound discretion of the trial court, we have
heretofore generally held that on such an application plaintiff must produce an affidavit "showing the merits of the case,
the reasons for the delay and the fact that the increase is warranted by reason of facts which have recently come to the attention
of the plaintiff and excusing the failure or negligence necessitating the amendment so far as these facts are within the knowledge
of the plaintiff." (Koi v. P. S. & M. Catering Corp., 15 A.D.2d 775.) In addition, the plaintiff should produce a physician's
affidavit which demonstrates with some degree of specificity the nature of plaintiff's injuries, their prospective consequences,
the resulting disabilities and the causal relationship between such disabilities and the original injury. (Ferrari v. Paramount
Plumbing & Heating Co., 20 A.D.2d 878; Tooley v. Howard Johnson's Inc., 29 A.D.2d 930; de los Reyes v. United States
Lines Co., 28 A.D.2d 991; Kind v. Serebreny Corp., 28 A.D.2d 988; Jiminez v. Seickel & Sons, 22 A D 643.) Further, the
motion should not be granted where the plaintiff is chargeable with inordinate laches or where the amendment would unfairly
prejudice the defendant. (Koi v. P. S. & M. Catering Corp., supra.) Furthermore, as a matter of law, the verdict may
not stand. In its charge, the court instructed the jury that an award of damages to plaintiff could be based on a finding
that the 1963 accident directly caused his claimed back condition, or in the [34 A.D.2d 907 Page 908]