Persson v. Gulf Refining Co.

Appellate Division of the Supreme Court of New York

Persson v. Gulf Refining Co.

228 A.D. 366, 239 N.Y.S. 796, 1930 N.Y. App. Div. LEXIS 12173

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 14, 1930

StatusPublished

Cited by1 cases

This text of 228 A.D. 366 (Persson v. Gulf Refining Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Persson v. Gulf Refining Co., 228 A.D. 366, 239 N.Y.S. 796, 1930 N.Y. App. Div. LEXIS 12173 (N.Y. Ct. App. 1930).

Pincite

Opinion

Per Curiam.

No negligence on the part of the defendant was established in this record, so far as it related to the first cause of action, which was assumed to be one under the Jones Act (Merchant Marine Act of 1920 [41 U. S. Stat. at Large, 1007], § 33; now U. S. Code, tit. 46, § 688), and which was made the subject of question No. 1 in the special verdict of the jury. Testimony, however, was adduced, credited by the jury, which established defendant’s liability under the second cause of action, which should be construed as an action for compensatory damages for breach of the defendant’s duty to furnish to the plaintiff, with reasonable promptness, cure for injuries received aboard ship. The jury could properly hold that this duty was breached and that this plaintiff should have been given medical treatment at the available marine hospitals in the ports that the vessel passed en route to Port Arthur, Texas. The allegations in the second cause of action, so far as [367]*367they might be construed to allege a cause of action other than that just stated, should be disregarded as surplusage. On such a view, the complaint may not be deemed to contain inconsistent causes of action between which an election by the plaintiff might properly be required on the motion of the defendant. It may well be that the deduction for contributory negligence had reference only to a liability of the defendant founded upon the first cause of action in the first question, which cause of action is eliminated as a basis for liability under the foregoing; but of this the plaintiff does not complain, so far as it affects his recovery under the second cause of action and under the second question submitted to the jury.

The judgment and order should be affirmed, with costs.

Young, Kapper, Hagarty and Carswell, JJ., concur; Lazansky, P. J., concurs in result.

Judgment and order unanimously affirmed, with costs.

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Per Curiam.

No negligence on the part of the defendant was established in this record, so far as it related to the first cause of action, which was assumed to be one under the Jones Act (Merchant Marine Act of 1920 [41 U. S. Stat. at Large, 1007], § 33; now U. S. Code, tit. 46, § 688), and which was made the subject of question No. 1 in the special verdict of the jury. Testimony, however, was adduced, credited by the jury, which established defendant’s liability under the second cause of action, which should be construed as an action for compensatory damages for breach of the defendant’s duty to furnish to the plaintiff, with reasonable promptness, cure for injuries received aboard ship. The jury could properly hold that this duty was breached and that this plaintiff should have been given medical treatment at the available marine hospitals in the ports that the vessel passed en route to Port Arthur, Texas. The allegations in the second cause of action, so far as [367]*367they might be construed to allege a cause of action other than that just stated, should be disregarded as surplusage. On such a view, the complaint may not be deemed to contain inconsistent causes of action between which an election by the plaintiff might properly be required on the motion of the defendant. It may well be that the deduction for contributory negligence had reference only to a liability of the defendant founded upon the first cause of action in the first question, which cause of action is eliminated as a basis for liability under the foregoing; but of this the plaintiff does not complain, so far as it affects his recovery under the second cause of action and under the second question submitted to the jury.

The judgment and order should be affirmed, with costs.

Young, Kapper, Hagarty and Carswell, JJ., concur; Lazansky, P. J., concurs in result.

Judgment and order unanimously affirmed, with costs.

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Bluebook (online)

228 A.D. 366, 239 N.Y.S. 796, 1930 N.Y. App. Div. LEXIS 12173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/persson-v-gulf-refining-co-nyappdiv-1930.

Opinion

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