even though he was suffering much pain. The distance from libellant's home to Pittsburgh is over 200 miles.
11. Libellant believed he could not make the trip by reason of the pain he was undergoing. Doctor Brown, although being of the opinion that he should go, did not testify that it would not damage libellant if he made the trip. Why the libellant was not hospitalized at Gallipolis does not appear.
12. If libellant subsequently was able to accept respondent's offer of hospitalization, there was no evidence that it would have been of benefit to him then.
13. Libellant did not reject respondent's offer of hospitalization.
Conclusions of Law.
1. Libellant was injured while in the service of respondent and on a vessel owned and operated by it and while he was employed thereon as a seaman and member of the crew.
2. Libellant is entitled to maintenance and cure at the rate of $ 3.50 per day from December 4, 1946, to the date of trial December 16, 1947, less 3 days of occasional work performed by him, also costs.
3. Under the facts as found libellant is not estopped to recover maintenance and cure by reason of not using the offer of hospitalization proferred to him by the medical officer in charge of the U.S. Public Health Service Relief Association at Gallipolis, Ohio.
This is an action in Admiralty under the Admiralty and Maritime laws of the United States.
Otto J. Murphy, the libellant, was a seaman in December, 1946, on the 'Duncan Bruce' motor vessel operated on the Ohio River by the respondent, The American Barge Line Company. On December 1, 1946, while performing his duties as a deckhand, he slipped and fell on ice on one of the barges towed by the 'Duncan Bruce.' He was injured in his back and as a result thereof has not been able to work since that time with the exception of a few days.
The principal contention of respondent against libellant's claim for maintenance and cure is, that he did not accept the hospitalization offered to him by respondent. In Jones v. Waterman S.S. Corporation, 3 Cir., 155 F.2d 992, 995, the Court in an opinion by Biggs, C.J., stated:
'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, 85 L. Ed. 1535.'
In Moyle v. National Petroleum Transport Corporation, 2 Cir., 150 F.2d 840, 842, the Court in an opinion by August N. Hand, C.J., stated:
'The appellant does not seem seriously to question the plaintiff's right to recover for maintenance and cure during the periods while he was at home and unemployed which were prior to the time that he was discharged from the Marine Hospital at his own request on his second visit there in April, 1937. But it contends that his action in obtaining a discharge at his own request precluded recovery for any additional period. There is, however, no evidence that further hospital treatment would have benefited the plaintiff at that particular time. * * * '
The judgment of the District Court for maintenance and cure was affirmed.
Libellant did not refuse the hospitalization tendered him. He went to the Marine Hospital at Gallipolis, Ohio (for which he was given a ticket), the following day. He received treatment at this hospital different times until January 18, 1947. He did not go to the hospital at Pittsburgh, over 200 miles away, as he was advised by Doctor Brown at the Gallipolis Hospital, for the reason that he was suffering so much pain that he felt that he could not make the trip. There was no evidence that the trip would not have damaged him. If libellant was subsequently able to go to the Pittsburgh hospital there was no evidence that hospital service at such a time would have been of benefit to him.
I conclude that libellant is entitled to recover maintenance and cure from the respondent and further that he is not estopped by the offer of hospitalization under the facts as aforestated.
Let an order for judgment be prepared and submitted in accordance with the foregoing Findings of Fact, Conclusions of Law and this Opinion.
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