The opinion of the court was delivered by: WATSON
The above captioned cases were consolidated and tried at the same time by the Court without a jury.
William S. Broadbent, hereinafter referred to as the plaintiff, brought the suits alleging the following causes of action: (a). Damages recoverable under the Jones Act, 46 U.S.C.A. § 688; (b). Maintenance and cure recoverable under 'General Admiralty Law'; (c). Overtime wages allegedly earned but not paid; and (d). War Risk Insurance proceeds for his alleged disability.
Plaintiff was employed aboard the S.S. Mormacsul in the capacity of ordinary seamen in April, 1942. The ship sailed from Philadelphia to Iceland, joining a convoy at Halifax. After a stop-over in Iceland, the vessel set out in convoy for Murmansk, Russia, and it was on this leg of the trip that the ship was sunk as a result of aerial attack. Plaintiff, with other men, was picked up and taken to Murmansk, Russia by a British corvette, where he remained until he was repatriated, arriving in the United States July 27, 1942.
It was testified to by the plaintiff and others that, on leaving Iceland, the boatswain ordered the midship deck 'fish oiled' with a mixture of 'fish oil, kerosene, and some kind of slop oil'; that the entire midship deck was covered with this oil except for certain passageways, where no oil was applied; that the crew complained about the oiling because in case of emergency it would be necessary to cross the oiled deck in order to get to the boat deck, where the life-saving equipment was stored.
Plaintiff testified that he had obtained permission to leave his post and go 'aft' to the toilet, when the attacking airplane appeared; that, in running in alarm to the boat deck, he slipped on the oily deck and fell backwards, striking his right hand against the steel hatch coaming; that he repeatedly informed the proper authorities that he had received this injury and that he received no attention therefor until August 6, 1942, when he returned to Philadelphia and reported to the United States Public Health Service station for treatment.
Defendants' testimony was contrary to plaintiff's on two important points; first, that the deck of the sunken vessel was never oiled with anything; and, second, that the examination made of the plaintiff did not reveal any injury whatsoever, and that plaintiff himself did not report an injury to any qualified officer at any time.
One Whitaker, the former Chief Officer of the vessel, testified that the vessel had been freshly painted. This is relevant, since the purpose of the oiling was to prepare the deck for scraping off rust. Lieutenant Slavin and Captain Nygren also corroborated the testimony that there had been no oiling of the deck before the time of the aerial attack.
Plaintiff and the boatswain testified that the deck had been oiled, was in very slippery condition, and that requests to have the deck sprayed with sand were ignored.
The second point of disagreement revolves about the plaintiff's alleged injury. Plaintiff alleges severe pain and discoloration of his hand, proper notification to proper authorities of his injury, and lack of treatment until he visited the United States Public Health Service in Philadelphia.
Defendants, on the other hand, offered testimony to the effect that plaintiff made no complaint to any one that he was injured; that he did not report any injury on two occasions when he was specifically asked if he was injured; that he did not request medical treatment when it was available; that both left and right hands and wrists were X-rayed after his return and no evidence of fracture or dislocation was disclosed.
The Court had ample opportunity to observe the witnesses and to take into consideration all the testimony.
As to the action for overtime wage pay, the testimony reveals the following: That all work records were lost in the sinking of the ship, and it became necessary for the men themselves to make and submit estimates of the number of hours they worked; that the plaintiff signed a slip, or statement, and receipted for payment for 18 hours more. There is no allegation of fraud or coercion on the part of the defendants, ...