Gary Lynn Carlton, Administrator of the Estate of Guy Morris Carlton v. M/g Transport Services, Inc. And M/v Foremost

698 F.2d 846, 1983 U.S. App. LEXIS 30832, 1983 A.M.C. 2450

• Court: Court of Appeals for the Sixth Circuit
• Decided: February 2, 1983
• Docket: 81-5604
• Status: Published

Opinions

PER CURIAM.

Plaintiff in this case is the administrator of the estate of a deceased seaman who was chief engineer aboard the M/V Foremost owned by M/G Transport. After Carlton’s death at night as a result of a heart attack, the administrator filed his suit under the Jones Act and it was heard before District Judge Johnstone and a jury. At the end of the presentation of evidence, however, Judge Johnstone granted a directed verdict on the basis of the following analysis of the facts as shown in the proofs.

At the time of his death, Guy Morris Carlton was the Chief Engineer aboard the M/V Foremost, which was owned and operated by M/G Transport. Mr. Carlton had worked for the defendant between 1970 and 1973. He applied to work for the company again on August 17, 1978.

M/G Transport required each new applicant for employment to undergo a physical examination. On the day Carlton last applied for work, the physician who regularly administered the examinations was unavailable. Under this circumstance Carlton used his own physician, Dr. R.W. Bushart, for the examination. Dr. Bushart performed the examination and sent his report to the company.

Included in the reports and medical findings was a document signed by Carlton, and witnessed by the doctor, indicating that he did not suffer from any of the several diseases or conditions, including heart disease.

Dr. Bushart completed and signed a form headed “Examiner’s Findings.” This form indicates the extent of the medical examination and shows that x-rays were taken. There were no comments entered in the spaces left for the physician’s remarks. Likewise, the questions “Is the applicant physically and mentally fit for the position applied for?” and the one regarding any symptoms which would require further examination or treatment were unanswered.

Another section of this form, signed by the doctor, is entitled “Past History”. Directions on the sheet are in these words: “Symbols [check] Normal Abnormal (underline word) Degrees of abnormality x xx xxx”. The words mumps, measles, and hypertension were underlined and a single “x” was placed beside each of these words. Carlton’s blood pressure is shown as 170/84. This was the extent of the negative indications on the forms.

The application of employment signed by Carlton asked whether he had had a major illness in the past five years and whether he was then under the care of a physician. Carlton printed the word “No” in response to the inquiries.

Carlton began working for the company on August 18, 1978. The next reference in the proof to his condition shows that he entered the Fulton Hospital on October 10, 1978, from whence he was discharged on October 16,1978. The hospital records are in the evidence, but there is nothing to show that either Carlton or the Company were aware of its contents.

The hospital records, examined in retrospect, declare that Carlton was treated for “nose bleed; hypertension.” Possible abdominal aneurysm was noted on the discharge summary.

After he was discharged from the hospital, Carlton returned to the Foremost for work. He was on duty aboard the vessel from November 1 to December 5, 1978, and again from December 20, 1978 to January 25, 1979. No evidence suggests that Carlton complained of illness or medical problems during these tours of duty.

At about 6:00 A.M. on February 15, 1979, Carlton was called by a representative of the defendants and asked to board the vessel. He agreed and went aboard the Foremost at around 6:00 P.M. on the same day. The only comment shown to have been made by Carlton regarding his physical condition was a remark to a shipmate either that “I haven’t been feeling well” or “I don’t feel well.”

Around 11:30 P.M., Carlton had a conversation with the ship’s master in the wheelhouse. They talked of things that had happened on the boat for awhile, then he told the master he was going to bed.

He went to his private room on the vessel, which was equipped with an emergency telephone. The next morning a deck hand opened his door to awaken him and found him dead on the floor. His color had changed and there were no life signs.

The body was removed to a hospital in Paducah. An autopsy was performed. Death was attributed to an acute myocardial infarction resulting from atherosclerotic and thrombotic occlusion of right coronary artery.

Judge Johnstone concluded, “As a matter of law there is no evidence of causal connection between Carlton’s death and the breach of any duty owed by the company or the seaworthiness of the vessel.”

Our review of this record shows no evidence at all of unseaworthiness under general admiralty law.

The Jones Act, of course, is another matter. There the test for submission to the jury is simply whether or not the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. See Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957). In this case, a careful review of the evidence presented shows no prior knowledge on the part of either the deceased or the ship of the condition which actually produced his death during the middle of the night when deceased was retired for the night. On autopsy, death was found to have been due to “an acute myocardial infarction resulting from atherosclerotic and thrombotic occlusion of the right coronary artery.” While there were various indications of other sorts of problems which the deceased’s health was affected by, no causal connection is shown on this record as to the ship’s knowledge of or deceased’s doctor’s knowledge of the condition which produced his death.

The judges in the majority have, of course, considered the well written dissenting opinion filed by our colleague. We find reasons to agree with it in all respects except for the last two paragraphs.

Although the dissent’s negligence argument, based on defendant’s failure to read, realize and warn deceased of the inaccuracy of his doctor’s medical report is slender indeed, it might conceivably pass the “slightest” test of Rogers.

We fail, however, to find any evidence, as opposed to pure speculation, to meet the requirement of causation.

The judgment of the District Court is affirmed.