Albert Reardon v. California Tanker Company

260 F.2d 369

• Court: Court of Appeals for the Second Circuit
• Decided: November 6, 1958
• Docket: 53, Docket 24583
• Status: Published

Opinions

SWAN, Circuit Judge.

This is an appeal by defendant from a judgment for plaintiff after trial to a jury in an action brought under the Jones Act, 46 U.S.C.A. § 688, to recover damages for personal injuries sustained by plaintiff while employed as a seaman on defendant’s vessel. The question presented by the appeal is whether the court erred in excluding evidence that defendant had paid plaintiff, pursuant to a collective bargaining agreement with the seamen’s union, for maintenance and cure.

Plaintiff’s suit claimed damages of $10,000 for an injury alleged to have been caused by defendant’s negligence. The complaint made no demand for maintenance and cure, and defendant’s answer made no reference to that subject.¹ The facts established at the trial are simple and undisputed. As a result of his injury, plaintiff was incapacitated for work from August 30, 1955, when he signed off the vessel at the end of the voyage, to November 10, 1955, when he was pronounced fit for duty. He incurred no expenses for medical treatment, and his loss of earnings during the 72 day period of his convalescence could not exceed $831, computed on the basis of his wages at the time of the accident.

During the trial, but not in the presence of the jury, defendant’s counsel offered to prove that defendant had paid plaintiff for maintenance and cure for the 72 day period at the rate of $8 per day pursuant to its collective bargaining agreement with the union, a total of $576. The court ruled the evidence to be inadmissible and directed defense counsel to ask no questions on the subject.

In his charge the judge instructed the jury that, if they found the plaintiff entitled to a recovery, only two items of damage were to be considered, namely, loss of wages, which could not exceed $831, and compensation for pain and suffering resulting from the injury. He further charged that “no other element may be used in computing the damages which you may award plaintiff. For example, you may not take into consideration the cost of his room and board during his period of convalescence. These items have been disposed of and adjusted by the parties and are not in the case for your consideration.” The jury returned a general verdict of $1,600, and judgment was entered thereon.²

A seaman who falls sick or is injured while in the service of the ship is entitled to receive from the ship, or its owner, maintenance and cure, and wages to the end of the voyage.³ Maintenance means keep, that is food and lodging. “The maintenance exacted is comparable to that to which the seaman is entitled while at sea [citations omitted] and ‘cure’ is care, including nursing and medical attention during such period as the duty continues.”⁴ The rights to maintenance and cure exist not only during the voyage but continue after the voyage ends until the disabled seaman has been so far cured as possible.⁵ During such period he is entitled to reimbursement of expenses incurred for maintenance and cure; but if he incurs no expenses for food and lodging he can recover nothing for “maintenance” and if he has no medical expenses he has no claim for “cure.”⁶ These rights, together with the right to receive wages during the period for which he was employed, arise from the employment contract, and are separate from, and independent of, any right the seaman may have based on the fact that his injury resulted from negligence chargeable to his employer, or from unseaworthiness of the vessel. By the Jones Act a seaman injured by negligence chargeable to his employer was given an independent right against the employer.⁷

Although the injured seaman may have cumulative claims, one based on contract, the other on tortious conduct, it is obvious that he should be compensated but once for the loss which he has sustained. This principle has usually been discussed in suits for maintenance and cure brought after the seaman had already had recovery in a suit brought under the Jones Act.⁸ In Muise v. Abbott, 1 Cir., 160 F.2d 590, where the seaman appealed from a judgment allowing him only partial relief in a libel for maintenance and cure, the court said at page 592 that “the damages recoverable in each action to some extent overlap, and the rule prevails in admiralty as elsewhere in the law that no one may recover compensatory damages more than once.” In Robinson v. Isbrandtsen Co., 2 Cir., 203 F.2d 514, 516, we vacated a judgment for the plaintiff on the third count, which was for maintenance and cure, because the judgment on the first count, based on the Jones Act, “presumably covered lost wages, since there was testimony on this subject which the jury was told to consider.”

In the case at bar the problem presented is whether exclusion of the proffered evidence may have permitted the plaintiff to recover damages in excess of those actually sustained. If so, the evidence was relevant and should have been admitted.

In Perez v. Suwanee S.S. Co., 2 Cir., 239 F.2d 180, it was held to be error to refuse to deduct from the award for maintenance wages earned by the seaman as a dishwasher during the period of his alleged incapacity. The opinion states, page 181:

“The remedy of maintenance is to put the seaman in as good a position as to board and lodging as he would have been in, if he had not become ill. If what he earned is added to the full allowance, he will get something more in addition to his maintenance.”

In the present case the jury’s verdict awarded plaintiff $1600.⁹ Under the court’s instructions that the jury might allow not more than $831 for lost earnings, it may be “presumed” that something was allowed for this item of damages.¹⁰ Hence this is the converse of the Perez situation. There the shipowner was held entitled to reduce the allowance for maintenance by the excess of the amount paid for maintenance over the amount actually expended for this item of damages. Here the shipowner claims to be entitled to reduce the jury’s award for lost earnings. There is no proof whether plaintiff incurred any expense for food and lodging during his period of convalescence after the voyage ended. If the jury awarded the plaintiff $831 for lost wages, and plaintiff actually paid out less than $576 for his food and lodging, the plaintiff has been awarded “double compensation” to the extent of the excess. If the jury awarded less than $831 for lost wages, but their award for this item, plus the $576, exceeded plaintiff’s actual expenses for maintenance and the amount of his lost wages, he has still been overpaid. By directing defendant’s counsel to ask no questions on the subject of maintenance the court precluded defendant from proving any overpayment.

It seems strange that the precise point has apparently been litigated only once. We have found no case precisely in point other than that cited by counsel for appellant, namely, Guay v. American President Lines, Ltd., 81 Cal.App.2d 495, 184 P.2d 539, 553, also reported in 1949 A.M.C. 1890.¹¹ There, as here, in an action under the Jones Act, evidence offered to prove payment of maintenance was excluded. The court held: “The defendant should have been permitted to show that in fact plaintiff ‘earned’ through ‘maintenance’ paid to him the sum of $539. * * We agree with that decision, and think that error was committed in the case at bar in excluding the proffered evidence and directing counsel to ask no questions on the subject.

Accordingly the judgment is reversed and the cause remanded for a new trial to be conducted in conformity with this opinion.

1 . The answer denied negligence and alleged as affirmative defenses assumption of risk and contributory negligence.

2 . Thereafter defendant moved under Rule 15(b) F.R.C.P., 28 U.S.C.A. to amend its answer to allege as an affirmative defense and in diminution of damages the facts which it had offered to prove as to payment of maintenance and cure. This motion was denied chiefly on the ground that it was unnecessary, since the record as made adequately protected defendant’s right to raise on appeal the court’s ruling as to the excluded evidence. We agree that it does.

In denying the motion Judge Herlands delivered an unreported opinion which gives not only his reasons for denying the motion but also his reasons for excluding the evidence.

3 . “For ocean going ships, the rule is said to be that wages are recoverable for the balance of the voyage * * *. In coast-wise shipping it is customary to sign on crew members not for a voyage but for a period of time, and recovery of wages until the end of term is regularly granted.” See Gilmore and Black, The Law of Admiralty 268, and cases there cited.

4 . The Quotation is from the opinion of Mr. Justice Stone in Calmar S.S. Corp. v. Taylor, 303 U.S. 525, at page 528, 58 S.Ct. 651, 653, 82 L.Ed. 993.

5 . Farrell v. United States, 336 U.S. 511, at pages 517-519, 69 S.Ct. 707, 93 L.Ed. 850.

6 . Johnson v. United States, 333 U.S. 46, 50, 68 S.Ct. 391, 92 L.Ed. 468; Stankiewicz v. United Fruit S.S. Corp., 2 Cir., 229 F.2d 580, 581; Field v. Waterman S.S. Corp., 5 Cir., 104 F.2d 849, 851.

7 . Pacific S.S. Co. v. Peterson, 278 U.S. 130, 138, 49 S.Ct. 75, 73 L.Ed. 220.

8 . See Smith v. Lykes Brothers Ripley S.S. Co., 5 Cir., 105 F.2d 604, certiorari denied 308 U.S. 604, 60 S.Ct. 141, 84 L.Ed. 505; Muise v. Abbott, 1 Cir., 160 F.2d 590; McCarthy v. American Eastern Corp., 3 Cir., 175 F.2d 727; Robinson v. Isbrandtsen Co., 2 Cir., 203 F. 514; Gomes v. Eastern Gas Associates, D.C.Mass., 132 F.Supp. 29, 30, 31.

9 . Since the jury returned a general verdict, it may well be doubted whether the judgment could be reversed, if the trial were conducted without error. However, the question before us is whether the evidence was rightly excluded.

10 . Robinson v. Isbrandtsen Co., 2 Cir., 203 F.2d 514, 516.

11 . Somewhat analogous, but not involving maintenance, is United States v. Brooks, 4 Cir., 176 F.2d 482, upon which appellant also relies.