The opinion of the court was delivered by: MCILVAINE
In this case the plaintiff brought an action seeking maintenance and cure and consequential damages for defendant's failure to pay maintenance and cure. The plaintiff was a laundress on the M. V. Trade Winds when on June 9, 1950, in attempting to open a can of milk she severely cut two of her fingers which were subsequently amputated. She previously brought an action seeking damages from the defendant for this injury. However, in a non-jury trial the Court found in favor of the defendant on the issue of liability, but found that up to the date of the conclusion of the trial, December 4, 1951, she had not reached the point where care and further treatment would not benefit her. Since that date the defendant failed to pay her any maintenance and cure. She did undergo subsequent hospitalization.
The defendant's contention was that the plaintiff had reached the maximum degree of cure on December 5, 1951, and in the alternative had argued that she had reached her maximum degree of cure on October 24, 1952. The plaintiff, however, offered medical testimony that her maximum degree of cure had not been reached, and had not been reached as of the date of trial. The Court in charging the jury pointed out that the plaintiff maintained that she had not been cured after December 4, 1951, but that the defendant on the other hand maintained that she had been cured. This presented the primary issue for the jury to decide, to wit: Had the plaintiff reached the maximum improvement from the injury that she received while employed on the motor vessel of the defendant on June 9, 1950, and if so on what date did she reach her maximum improvement? The Court instructed the jury that the obligation of the defendant ends when the medical evidence or opinion is to the effect that the maximum cure possible has been effected. The jury was instructed to consider the plaintiff's physical condition on December 5, 1951, and to determine whether she at that time had reached, according to medical evidence or opinion, the maximum cure possible. If she had, they were instructed to find in favor of the defendant; if she had not reached the maximum cure possible, they were to consider for how many days she was entitled to maintenance and cure. The parties had stipulated that if she were entitled to maintenance and cure it ought to be at the rate of $ 6 per day. The jury found that she had not reached her maximum degree of cure as of the date of the trial and, therefore, awarded her maintenance and cure for 2,556 days or $ 15,336.
Defendant takes the position that inasmuch as the plaintiff was a married woman it was under no obligation to furnish her maintenance and cure, for it was her husband's duty to maintain her. While it takes this position and has filed a very extensive brief, it has not pointed to any case ruling directly on this question. The case it relies upon is where a seaman lived at the home of his parents and incurred no expenses or liability for his care and support, and in that instance the Court held that the seaman was not entitled to maintenance. Johnson v. United States, 9 Cir., 160 F.2d 789.
It has also been held that where a seaman lived at home with his family during the period of his disability and the family furnished him with maintenance and cure, he was not entitled to maintenance and cure during that period. O'Neill v. United States, D.C., 157 F.Supp. 193.
However, in this case the plaintiff testified that her husband did not provide her with maintenance or money for food and medicine, but she had to look after herself. And it further appears that at the time of her first trial before the late Judge Stewart he found that she was entitled to maintenance and cure, and at that time she was married. This might very well have been the law of that case. Inasmuch as this was basically a suit on the same cause of action, maintenance and cure, which the Court had previously found her entitled to, defendant's failure to assert the defense of a marriage in the prior action which resulted in a judgment against it, and which status it knew about, might preclude it from relying on that defense now. Restatement, Judgment, Section 68, Comment (d).
We may have gone too far in favor of the defendant in submitting this question to the jury. Notwithstanding the question nevertheless, and we think properly in the setting of this case, was submitted to the jury; but not exactly as defendant had requested. Its requested instruction was as follows:
'Under the evidence plaintiff may not recover for maintenance and cure during the period she resided in Point Pleasant, West Virginia, with her husband, who provided her with maintenance.'
This was refused as stated.
'That is the argument.' Record, p. 905.
We went into the question as to whether it was the law of the case. Plaintiff's counsel pointed out that Judge Stewart had decided the law of the case. At that time she was living at home with her husband and that notwithstanding the fact that her husband may have supported her, plaintiff's attorney pointed out and defense counsel agreed that there was no issue on this question in the first case. The defendant did not raise that defense in that trial. The colloquy continued as to what the evidence showed in regard to that and at page 909 the Court stated:
'How about me putting 'reasonable' before the word 'expenses'? Plaintiff may not recover for maintenance and cure without proof of reasonable expenses, then you can argue whether they were or were not obligations created for such maintenance.'