Before MAJOR, FINNEGAN and PARKINSON, Circuit Judges.
PARKINSON, Circuit Judge.
This appeal follows a judgment on a jury verdict in favor of defendant in an action for damages under the Jones Act, 46 U.S.C.A. § 688.
Plaintiff's complaint is in two counts.
Count I, seeking damages for personal injuries under the Jones Act, was tried to a jury and Count II for maintenance and cure was tried to the court.
Although plaintiff's notice of appeal stated that he was appealing from both the judgment on the jury verdict for the defendant on Count I and from the judgment of the court for the defendant on Count II, he asserts in his brief that "[the] errors relied upon arise out of instructions, rulings of evidence, direction of a verdict on certain charges, and failure of the defendant to maintain its affirmative defense." He deals with these alleged errors only as they affect the jury proceedings on Count I and limits the contested issues to two in number both of which relate solely to the Jones Act. Hence it follows that the judgment on Count II as tried to the court must be affirmed as it has not been challenged on this appeal.
The defendant, therefore, insists that this appeal should be dismissed because the judgment of the court on Count II is res judicata of plaintiff's right to recover under the Jones Act on Count I. We do not agree and we hold that the plaintiff is entitled to have the alleged errors upon which he relies, arising out of the jury proceedings under Count I as stated by him in his brief, considered by this court.
The plaintiff contends that "[the] defendant failed to sustain the burden of its affirmative defense, which was that the relationship of master and servant did not exist at the time of the accident"; that "[even] though the plaintiff may have misrepresented his condition of health in a physical examination taken long after his entry into defendant's employment, such misrepresentation would not ipso facto void his contract of employment, and an instruction to that effect is erroneous as withdrawing from the jury an important issue of fact"; that "[since] the instruction*fn1 was erroneous, it was presumptively injurious to plaintiff and furnishes ground for reversal unless the defendant affirmatively shows that it was harmless"; that "[there] was no competent evidence on which to base defendant's affirmative defense, or the peremptory instruction"; and that "[the] court erroneously withdrew from the jury important testimony relating to the employee status of the plaintiff."
These contentions are based primarily upon the false assumption that before the jury could return a verdict in favor of the defendant the defendant had to prove its affirmative defense by a preponderance of the evidence. That is not the law. If the jury found that the plaintiff had failed to prove negligence on the part of the defendant it was warranted in returning a verdict for the defendant even though it also believed that the defendant had failed to sustain the burden of its affirmative defense. That is so elemental that citation of supporting authority would be superfluous.
The plaintiff knowingly failed to disclose his true state of health to defendant's examining physician. He testified as follows:
"Q. And at the time you were taking that examination, Mr. Sulentich, you knew that you had had previous pain in your back before you ever came aboard-ship? A. Yes.
"Q. And you knew that you had injured your back at Reliance Electric Company? A. I had a strained condition there, yes, muscle."
"Q. You knew, however, Mr. Sulentich, that over a long period of time - and I am speaking of your knowledge at the time you were having this physical examination - that you had received medical treatment for your back from the Veterans Administration?A. Yes, I did.
"Q. And you knew furthermore that you were receiving a compensation from the Veterans Administration based on a thirty ...