really undisputed, and, since the award for cure and maintenance is solely for the period from June, 1938, to July, 1940, I do not believe that anything is lost by not having the testimony of the physicians who took care of the libellant shortly after his injury. The real question is what was his condition as of 1938-40, and what is his condition now.
The facts relevant to maintenance and cure are as follows: The libellant left the ship on September 4, 1934, at the end of the voyage on which he was injured. He was disabled and received medical attention from that time until December, when he want back upon the ship as an able-bodied seaman. For this period of disability his employer has already paid him full wages and an additional $15 for medical expenses, so that it need be given no further consideration.
From December, 1935, until May, 1936, he continued in the employ of the respondent, as an able seaman, his wages being gradually increased from the $52 he was earning at the time of his injury to $62.50. The work that he did was not the full work of an able bodied seaman, but did involve a large number of duties about the ship which made him a great deal more than a mere pensioner on board.
In May, 1936, he voluntarily left the respondent's employment to take a job as a painter for the American Engineering Company at $24 per week.
When he left he was given to understand that he had a good prospect of re-employment with the line whenever he should apply. Of course he did not wish to jeopardize his chance of a job, and that was the reason he did not bring this action earlier. Considering his situation it seems a good enough excuse to avoid the strict application of the statute of limitations as a basis for the defense of laches.
He held his job with the Engineering Company for about two years. His foot gave him some trouble, but apparently did not substantially interfere with his carrying on his work or impair his earning power, and his leaving was not attributable to the injury. He then went back to the respondent and asked for employment, but found that there was nothing for him.
He was unemployed from June, 1938, to July, 1940. During this time he made a number of visits to his own physician for medical treatment. In July, 1940, he took his present employment as night watchman at $23.50 a week. He has kept it ever since. Obviously his foot, while it may and no doubt does give him some pain and inconvenience, does not interfere seriously with performing his work, since he make a tour of the plant every half hour, walking about half a mile on each occasion and covering over 182 steps, up and down, in the course of each tour.
The injury produced a certain abnormality in the structure of the bones of his foot. This abnormality is permanent and has been permanent for several years. No doctor has ventured the opinion that his foot can be restored to normal. One thought that diathermy was "worth trying," and it is agreed that the pain and inconvenience from which he suffers at times can be relieved by treament.
Upon the foregoing state of facts and having in mind the decision of the Circuit Court of Appeals of this Circuit in the case of Frank B. Loverich v. Warner Company, March 17, 1941, 118 F.2d 690, together with the statement of the Supreme Court of the United States in Calmar Steamship Corporation v. Taylor, 303 U.S. 525, 58 S. Ct. 651, 82 L. Ed. 993, that if a disease proves to be incurable, there is no basis for extending cure and maintenance beyond a fair time after the voyage as may be expected to effect such improvement as is possible, I think that the award of $300 for cure and maintenance is ample, and conclude as a matter of law that the libellant is not entitled to have it increased.
A decree may be submitted.
If separate findings and conclusions are desired, requests may be presented in accordance with this opinion.
© 1992-2004 VersusLaw Inc.