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April 14, 1947


The opinion of the court was delivered by: MCVICAR

Peter Paul Rankin, libellant, was employed as a seaman by the respondent on a vessel operated by it on navigable waters and while so employed, was injured, September 15, 1944. As a result of his injury, he lost a portion of his right leg. He has been disabled from the date of the accident to the time of trial so that he could not perform the work he usually performed as a seaman. He has been in need of maintenance during said time. He brought an action against his employer in the Court of Common Pleas of Allegheny County, Pennsylvania to recover damages under the Jones Act, 46 U.S.C.A. § 688. A verdict in the sum of $ 10,000 was awarded to him. An appeal was taken from the judgment of said Court to the Supreme Court of Pennsylvania, 52 A.2d 455. He brought this action under the General Admiralty and Maritime Laws to recover maintenance and cure. At the trial he waived the right to recover for cure.

Respondent contends that by reason of the case pending in the Court of Common Pleas of Allegheny County and now by appeal in the Supreme Court of Pennsylvania, that libellant should not be permitted to recover, relying on the general principles applicable to res adjudicata. As there is no final judgment at the present time in said case, it is doubtful whether said principles of law are applicable. However, if a final judgment was entered, it would not be res adjudicata of the present case.

 This case is ruled in principle, by the case of Jones v. Waterman S.S. Corporation, (Reading Company, Third Party Defendant), 3 Cir., 155 F.2d 992, in which the opinion was written by C. J. Biggs, who carefully considered and stated the rules of law applicable to that case, which, I believe, are applicable to this case.

 In that case, Jones, a seaman employed by the Waterman S.S. Corporation, brought suit against his employer to recover maintenance, cure and wages by reason of an injury which he received while on shore leave, on a pier of the Reading Co. Jones also brought an action against the Reading Company under the Jones Act and recovered a verdict in his favor. The Court granted a new trial in the action against Reading Co. After the granting thereof, Jones made a settlement in full with the Reading Company and procured a release discharging said Company from all claims and demands whatsoever arising from said accident.

 Jones' employer, the Waterman Company, in his action against it, filed a motion to dismiss on the ground that it was not liable for maintenance and cure for the injury occurring on a pier. This motion was granted by the Court below but was reversed on appeal to the Circuit Court of Appeals for the Third Circuit 130 F.2d 797. The decision of the Circuit Court of Appeals was affirmed by the Supreme Court, 318 U.S. 724, 63 S. Ct. 930, 87 L. Ed. 1107. After remand Waterman filed an answer setting out the release which Jones had executed to Reading Company.

 It appeared that Jones, in his action against the Reading Co., 'sought to recover both compensation and consequential damages, the latter including, as the evidence shows, substantially all the items recoverable by Jones as maintenance and cure and wages.'

 In the action in the Court below to recover maintenance and cure against Waterman, judgment was entered in favor of Waterman on the ground that to enable Jones to recover would permit 'two satisfactions for the one injury by resort to two different causes of action.' Appeal was then taken from this judgment to the Third Circuit Court of Appeals. The judgment in favor of Waterman was reversed. The Court, in its opinion stated (155 F.2d 995):

 'If a seaman falls sick or is injured and must be removed or is kept from his vessel he is entitled to maintenance and cure as well as to his wages. Smith v. Lykes Brothers-Ripley S.S. Co., 5 Cir., 105 F.2d 604, 605. Wages, even if they include 'keep', must be restricted to the term of employment as specified by the shipping articles while the duty to provide maintenance and cure lasts as long as the seaman's need continues. Calmar Steamship Corporation v. Taylor, 303 U.S. 525, 58 S. Ct. 651, 82 L. Ed. 993; Loverich v. Warner Co., 3 Cir., 118 F.2d 690, certiorari denied 313 U.S. 577, 61 S. Ct. 1104, (1105), 85 L. Ed. 1535. Jones has a cause of action against Waterman for maintenance and cure and for his wages as set out in his complaint in the suit at bar. This is an action ex contractu. Jones may maintain it by reason of the obligations and duties imposed on Waterman by the shipping articles and by virtue of his status as a member of the crew of the 'Beauregard'. Jones also had a cause of action against Reading sounding in tort and arising ex delicto by reason of Reading's alleged failure properly to maintain its right-of-way. Jones was careful to restrict his complaint in the case at bar to claim for 'wages to the end of the articles and maintenance and cure for the period of his disability * * * '. He does not seek to recover damages from Waterman.

 'The distinction between the right to maintenance and cure and wages and the right to damages is made clear by the Supreme Court in Pacific Steamship Co. v. Peterson, 278 U.S. 130, 138, 49 S. Ct. 75, 77, 73 L. Ed. 220, wherein Mr. Justice Sanford stated, 'In short, the right to maintenance, cure and wages, implied in the law as a contractual obligation arising out of the nature of the employment, is independent of the right to indemnity or compensatory damages for an injury caused by negligence; and these two rights are consistent and cumulative.' See also Aguilar v. Standard Oil Co., supra, 318 U.S. (724,) at pages 730, 731, 63 S. Ct. 930, 87 L. Ed. 1107. Jones could not have recovered maintenance and cure and wages from Reading, nor may he recover damages from Waterman. It follows that Waterman and Reading were not joint tortfeasors. In fact, Waterman committed no tort. It is not alleged that it did. Under no theory of law can Jones' release to Reading release Waterman. * * *

 'Jones has settled his cause of action against Reading but he is free to assert and to recover on his ex contractu cause of action against Waterman. He would be free to do this even if he had obtained a judgment against Reading and had executed it. * * *

 ' * * * We entertain no doubt in the light of such decisions as McCarron v. Dominion Atlantic Railway Company D.C. 134 F. 762, and Enochasson v. Freeport Sulphur Co., D.C. 7 F.2d 674, that Waterman's obligation to pay Jones' wages endured as long as the period for which he claims maintenance and cure. Since this was the fact the District Court at No. 1480 could not have permitted Jones to recover from Reading damages based upon maintenance and cure and wages. Jones was entitled to recover in the suit at No. 1480 only compensatory damages including an amount to be awarded for pain and suffering. Since Jones was not entitled to recover damages for maintenance and cure and wages in the suit at No. 1480, all other considerations aside, these elements may not be deemed to have been included in the settlement of the suit at No. 1480.'

 Let an order for judgment be prepared and submitted in accordance with the Findings of Fact, ...

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