proved and, at the request of the plaintiff, submitted to the jury by the judge as an element in determining loss of earnings and earning power. The situation here is entirely different, the action for damages having been against a third party. Whatever the effect of decisions in other circuits may be, the issue is foreclosed against the defendant in this circuit by the decision of the Circuit Court of Appeals in Jones v. Waterman S.S. Corporation, 155 F.2d 992.
The libellant is entitled to maintenance and cure from August 6, 1947, to the present date, with the exception of certain periods hereafter noted.
When Gaynor left the Marine Hospital on August 6, 1947, he was certainly not fit for duty, but that is unimportant if he was as nearly fit for duty as he ever could be- in other words, if the maximum cure possible had been reached and no further improvement was reasonably to be expected to result from further treatment.
I do not think that he was. The broken bone of his leg had been united by a bone-grafting operation in April, 1946. After prolonged hospitalization following the operation he had been discharged but thereafter suffered pain and swelling of the extremity whenever he attempted to walk even short distances, making it necessary at times for him to be completely inactive. As a result, he returned to the hospital on July 10, 1947, and remained there for about a month in bed receiving physiotherapy.
When he was discharged on August 6 the doctors felt that everything medically and surgically possible had been done for him. Apparently they thought that it was probable that nature would complete the healing process which had undoubtedly made appreciable progress after the operation. The fact proved to be otherwise. After August, 1947, Gaynor continued to have and still has the same trouble with the leg as he had had before. The condition is painful, requires treatment from time to time and is completely disabling so far as any occupation which he can pursue is concerned. Further, additional surgical treatment is indicated. Another bone-graft to strengthen the union gives fair promise of restoring his leg to a condition in which he can have, if not full use of it, at least far better use than he has now.
On this state of facts I do not think the rule in Farrell v. United States, 336 U.S. 511, 69 S. Ct. 707, 708, 93 L. Ed. 850, denies him maintenance and cure up to now and through the time required for another operation. In the Farrell case the important finding was that Farrell's blindness and post-traumatic convulsions were 'without possibility of further cure.' That being the fact, the Court held that he was not entitled to maintenance and cure for the rest of his life, it being established that the maximum cure possible had been effected, although the Court did suggest that if he received 'future treatment of a curative nature' the respondent did not contend that he could not recover the amount expended for such treatment and 'for maintenance while receiving it' in a new proceeding.
This case is quite different. There is a definite probability of further cure- probably a complete one, except for some permanent deformity. When he left the Marine Hospital in August of 1947 the situation was either (1) that the bone-graft operation of April, 1946, would, assisted by nature and use, prove successful and effect a strong, satisfactory union which would give him the full use of his leg or (2) that it had fallen short of success, in which latter case further treatment and another operation were necessary. Time proved that the operation had not been a success and that nature unassisted would effect no further improvement. Whether the doctors who discharged him in August, 1947, should have realized this is of no importance. The doctor who discharged him said, 'There eventually comes a time when you have to try to see what the edema will do * * * So we thought the patient had reached that stage that he had no symptoms * * * so that that time had arrived * * * We thought that the patient had received the maximum hospital benefit at that time.' But he also said that if it were true that for an entire year after he left the hospital Gaynor had to use a cane and his leg was swelling up so that he could not walk more than four blocks without having pain in his leg, 'the patient needed to be examined again * * * he might need any number of different forms of treatment.'
Of course, an injured seaman may not wilfully prolong for an indefinite time the shipowner's liability for his maintenance and cure. He is bound to seek treatment needed to improve his condition, to avoid aggravation of his injury and to undergo nonhazardous surgery if that offers a good prospect of a cure. I cannot convict Gaynor of default in this respect. In spite of the absence of improvement in his injured leg and the recurrence of pain and swelling when he used it, he knew that he had been discharged from the Marine Hospital as fit for duty, undoubtedly believed that everything medically possible had been done for him and was certainly justified in taking no further steps, at least for a considerable time, in reliance upon the hope that improvement would come in due time. After his discharge from the hospital he twice applied for employment on vessels and was rejected after medical examination, once at the Public Health Service Station in Philadelphia. Four or five months later he requested treatment at the Public Health Station but was refused. In August, 1948, his leg was again fractured and again he applied for treatment and was refused. He was then admitted to the Pennsylvania Hospital and after being discharged from that institution received out-patient treatment at various intervals and was furnished with a special surgical shoe and a metal leg brace, which he wore. Whether or not the officer in charge of the Public Health Station was conforming to regulations when he refused Gaynor treatment is unimportant. The point is that from August, 1947, up to the present time he was doing for himself enough to negative any default or waiver which could bar his claim for maintenance and cure.
I think that Gaynor is entitled to maintenance and cure up to the present time and, further, at least until he has had an opportunity to either accept or reject another operation. Of course, the periods when he was in various hospitals including the hospital in Walterboro between December 25, 1945, and February 10, 1946, will be eliminated.