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October 23, 1970

Worthy SIDERS, Jr., Plaintiff,

Marsh, Chief Judge.

The opinion of the court was delivered by: MARSH

MARSH, Chief Judge:

 Worthy Siders, Jr., plaintiff herein, filed the above action for maintenance and cure which is claimed to have arisen out of an accident sustained by the plaintiff on board the defendant Ohio River Company's M/V Fiore on or about August 25, 1967. On motion of the plaintiff, this case was consolidated with a similar claim for maintenance and cure filed by the plaintiff against Downey Towing Company at Civil Action No. 67-1329, which claim allegedly arose out of an accident on Downey's vessel on or about November 20, 1962. This court has jurisdiction of the cause and venue is properly laid in the Western District of Pennsylvania.

 The consolidated actions were tried to the court. A considerable amount of testimony was taken at the trial concerning the occurrences of the two accidents and surrounding circumstances, and plaintiff's life history and conduct both before and after the accidents. The claim against Downey was compromised and settled after the trial; however, some of the facts brought out pertaining to that claim are believed relevant to the instant claim and will be referred to herein.

 It is the opinion of the court that plaintiff is not entitled to recover maintenance and cure from The Ohio River Company.

 Plaintiff had always wanted to be a "river man". He was successful in getting his first job on the river at about the age of 16, "learning how to be a deckhand". However, he was relieved of his position when he failed to report for work when called. Being out of school and unemployed, he spent his time "going to the pool halls and show, or movie or else running around" for about a year.

 In May of 1962, he applied for and obtained employment with Downey Towing Company, where he worked until November of that year. On or about November 20, 1962, plaintiff sustained an accident while in the employ of Downey, working as a deckhand on the M/V Peggy Downey. This accident occurred when plaintiff was carrying a pipe fitting and he slipped and fell on some oil on the deck. Plaintiff sustained an injury to his back and, thereafter, was treated by Dr. Eshanaur, plaintiff's family doctor, and Dr. W. Lewis Brown of the United States Public Health Service (USPHS) in Gallipolis, Ohio. Plaintiff states that he first hurt the lower part of his back and shortly after that his whole back began bothering him and he "began having nerve trouble and headaches and dizzyness [sic]" (PX-1).

 Plaintiff continued to see Dr. Brown with the same complaints. The medication which was prescribed for him apparently was of no benefit, and on January 18, 1963, he was given a letter of transferal to the USPHS Hospital in Detroit, Michigan. Plaintiff reported to the USPHS Hospital in Detroit on February 25, 1963, and was an inpatient there until March 20, 1963, when he voluntarily eloped (PX-1, PX-2). Plaintiff's diagnosis at the Detroit Hospital was "lumbosacral strain" and "dental caries" (PX-1, PX-2). Besides his back pain, he also complained of vertigo-like symptoms, blurred vision and dizziness. (Consultation Sheet, PX-2). His main course of treatment while in the hospital was for his dental problem. He left the hospital against doctor's advice. He felt that he was not receiving proper treatment for his back.

 Downey had been making maintenance payments to plaintiff after the accident, but when he voluntarily left the hospital in March, the payments were stopped.

 Following his stay in the hospital, the plaintiff got into some trouble with the law while he was intoxicated. He was imprisoned in Moundsville (W.Va.) State Penitentiary for the alleged offense, but in the summer of 1964, he was granted a "full unconditioned pardon from the Governor of West Virginia" (Tr., p. 291) and was released from prison and his record cleared.

 Following his release from prison, the plaintiff did not return to work for about five months because he was enjoying his freedom, and he also wanted to do something for his back that was still bothering him. He finally started back to work near the end of 1964, and for the next two years he worked for a number of different employers (approximately eight) never staying at the same job for any great length of time. He testified that he was not "able to hold a job. I was just unable to work due to my condition and I had nervous trouble and I was -- after a while I couldn't get along with people. I just had to more or less move on." (Tr., p. 43.)

 During this period of time, one of plaintiff's employers was the Zubik Towing Company (referred to in the transcript as "Sumick"). While employed by Zubik, he broke his finger, and later negotiated a small cash settlement with Zubik for this injury.

 In January of 1967, plaintiff filled out and signed an "APPLICATION FOR EMPLOYMENT" form with Ohio River Company (DX-B), and in so doing, certified that the answers on the form given by him were "true and complete". It appears, however, as was brought out in cross examination, that plaintiff deliberately and intentionally made several material misrepresentations of fact on said application form, to-wit:

 (1) He denied having any disabilities or handicaps, even though he admitted at trial that his ability to work as a deckhand was seriously impaired as a result of the Downey accident in November, 1962;

 (2) he denied having lost any time from work for the two-year period prior to his making application (January, 1967), even though he admitted at trial that following his release from prison in the summer of 1964 until his employment with the defendant in 1967, his employment was sporadic and he could not work steady;

 (3) he denied ever having suffered from any occupational disease or injury, even though he admitted at trial that he had sustained an occupational injury while working for Downey in November, ...

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