(1) That the defendant failed in its obligation to give the plaintiff maintenance and cure;
(2) That the need for prompt payment was known or should have been known to the defendant;
(3) That as a consequence of her not having the money to which she was entitled that the injury was prolonged;
(4) That the damages claimed proximately resulted as a prolongation of the injury.
The jury was instructed that if the plaintiff has proved these four factors then they could award her additional damages for consequential harm suffered. The Court pointed out to the jury that if she would have been able to obtain this maintenance and cure out of her own funds or even from borrowed funds she would only be entitled to recover the sum of money for such funds as she expended. Financial inability to secure medical treatment can be as great a medical barrier as physical inability, and it was for the jury to determine whether during the period in question she suffered financial inability to seek medical treatment. If she did suffer such an inability and she could not obtain the cure needed, then as a result the defendant would be liable for any consequential damage that she might have suffered. The jury found in her favor.
Very briefly, the jury found that the plaintiff was entitled to receive maintenance and cure and that the defendant failed in its obligation to pay her the money to which she was entitled. That the defendant knew of this need was obvious due to the fact that she had had a lawsuit in this court and notice to them did not necessarily rest on whether she called them or not. However, there was testimony of other notice by the plaintiff to the defendant. As a result of her not having the money, her illness was prolonged. This was what the jury found, and this verdict is supported by the evidence. The filing of a lawsuit is sufficient notice of a seaman's claim for maintenance and cure. Brown v. Dravo Corporation, 3 Cir., 1958, 258 F.2d 704.
The failure to pay maintenance and cure when it is needed is an actionable tort recognized by the Court of Appeals for this Circuit. Sims v. United States, 3 Cir., 1951, 186 F.2d 972. That was the basis of this lawsuit. This Court followed the law as our Court of Appeals has clearly set it forth in the Sims case. The jury was properly instructed. The defendant had a fair trial, but the verdict was not to its liking. The fact that it was disappointed in the verdict or that another jury might have decided the case differently, or a judge might have decided the case differently had he heard it without a jury is no basis for the granting of a new trial.
Both the plaintiff and the defendant had their day in court. This Court will not now disturb the jury's verdict.
In respect to defendant's motion for judgment notwithstanding the verdict, there is certainly evidence to support the verdict of the jury; that is, taking the evidence in a light most favorable to the plaintiff the verdict cannot be set aside.
In regard to defendant's motion for a new trial, as we pointed out the defendant had a fair trial. This was a trial in which its counsel skillfully and ably represented it, making its position clear to the jury. Issues were presented to the jury and which were decided adverse to the defendant, but their decision and verdict was one that could be reasonably reached by them. Therefore, the motion for a new trial must be denied.
We are not unmindful that different standards must be applied in considering motions for judgment notwithstanding the verdict and motions for a new trial following the verdict. This distinction was carefully and clearly pointed out by our Court of Appeals in the case of Magee v. General Motors Corp., 3 Cir., 1954, 213 F.2d 899. See also Williams v. Nichols, 4 Cir., 1959, 266 F.2d 389.
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