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MURPHY v. OVERLAKES FREIGHT CORPORATION

No. 23, Docket 21352, Civ. Nos. 38-412, 46-190.

177 F.2d 342 (1949)

MURPHY v. OVERLAKES FREIGHT CORPORATION (two cases).

United States Court of Appeals Second Circuit.

Decided October 28, 1949.

Attorney(s) appearing for the Case

Benjamin B. Sterling, New York City (S. Eldridge Sampliner, Cleveland, Ohio, of counsel), for plaintiff.

Barry, Wainwright, Thacher & Symmers, New York City, and Russell V. Bleecker, Cleveland, Ohio (Russell V. Bleecker, Cleveland, Ohio, Joseph M. Brush, New York City, and Samuel R. Dorrance, Noroton, Conn., of counsel), for defendant.

Before AUGUSTUS N. HAND, CHASE and FRANK, Circuit Judges.

FRANK, Circuit Judge.

1. At the trial, the parties stipulated that Murphy, when he "entered the employ of the defendant aboard this vessel, the S.S. Sultana, was suffering from tuberculosis."1 Accordingly, defendant could be held liable solely for aggravation of that ailment. Defendant argues that, as the complaint did not allege aggravation, the trial judge should have directed a verdict for defendant. We do not agree. The complaint said...

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