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March 22, 1974

Veronica COX, Administrator of the Estate of William D. Cox, Plaintiff,

Weber, District Judge.

The opinion of the court was delivered by: WEBER

WEBER, District Judge.

The plaintiff in this action filed a complaint for maintenance and cure and for consequential damages arising from defendant's negligent failure to furnish him maintenance and cure. The action was filed by the plaintiff in his lifetime and upon his death his administratrix was substituted as plaintiff.

 The plaintiff had previously filed an action at Civil Action No. 64-724 under the Jones Act and General Maritime Law for personal injury damage allegedly suffered by reason of the negligence of his employer and the unseaworthy condition of the vessel. In that action the plaintiff claimed damages for pain and suffering, past and future, and loss of earnings, past and future. The plaintiff's pretrial statement in that action repeats the allegations of future disability. The plaintiff produced medical testimony to support a claim of permanent and total disability and the question of impairment of future earning capacity was submitted to the jury. In the trial of the former action it was shown that decedent had not worked from the time of the accident until the date of trial, that he was earning about $7,600 a year prior to the date of the accident, and that he had a life expectancy of between twenty-six to thirty-one years. Plaintiff's counsel argued that the total loss of future earnings over a twenty-one year work expectancy would be about $160,000 which the jury would be obliged to reduce to present worth.

 The jury returned a verdict for the plaintiff in the amount of $75,000.

 No claim for maintenance and cure was made in the action at Civil Action No. 64-724 and the jury was specifically instructed that they were not to consider any claim for plaintiff's medical expenses. The jury's verdict was rendered January 21, 1966 and the employer continued to pay maintenance until December 6, 1966.

 The trial of the present action was held before the court sitting without jury. The plaintiff called the seaman's widow and the son who testified that plaintiff was unable to perform any strenuous activity, that he was troubled with headaches and dizzy spells, wore a neck brace, and a back brace, and took medicines and physical therapy treatment prescribed by his doctor during the period following the jury verdict in the prior case. They testified that to their observations the therapy treatments made the decedent feel better and would relieve his aches and pains.

 The plaintiff also produced a physiotherapist who rendered physiotherapy treatments at the direction of plaintiff's treating physician from a period shortly after plaintiff's accident, first while he was an in-patient in the hospital between July 6, 1964 and August 5, 1964, and later as an outpatient with decreasing frequency up until May 1972. At the beginning therapy treatments were rendered about three times per week and tapered off to one time per week, one time every two weeks, and finally about one time per month. In the year 1970 plaintiff appeared fourteen times for treatment and in the year 1971 six times.

 It was stipulated during the trial that in addition to the testimony taken the court would consider the entire record of the action at Civil Action No. 64-724 as being introduced into the evidence in this case.

 In the present action the plaintiff claims maintenance from and after December 7, 1966, the date to which his employer continued to pay the maintenance. Plaintiff also demands that portion of his medical expenses which the defendant had failed to pay prior to the trial of the action at Civil Action No. 64-724 and the medical expenses which he incurred thereafter up to the date of his death on August 6, 1973. In addition to the amounts claimed for maintenance and cure plaintiff claims the consequential damages from the negligent failure and refusal of the defendant to continue to provide maintenance and cure.

 Defendant asserts that all claims merged in the judgment in the prior verdict at Civil Action No. 64-724; that plaintiff reached maximum recovery prior to the first trial; that because at all times material plaintiff was able to pay for any necessary treatment his own conduct bars any recovery for consequential damages for aggravation or prolongation of his injuries due to the failure to furnish cure; that plaintiff's previous claim of total disability now estops him from claiming that he has a right to cure; and that there is no showing that the claimed medical treatment would be curative or arrest the progress of his disability.

 The classic doctrine of admiralty law is that a seaman is entitled to receive maintenance and cure until he reaches the point of maximum medical recovery possible. Vaughan v. Atkinson, 369 U.S. 527, 82 S. Ct. 997, 8 L. Ed. 2d 88 [1962]; Salem v. United States Lines Co., 370 U.S. 31, 82 S. Ct. 1119, 8 L. Ed. 2d 313 [1962]. The court relied on its prior decisions in Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 58 S. Ct. 651, 82 L. Ed. 993 [1938], and Farrell v. United States, 336 U.S. 511, 69 S. Ct. 707, 93 L. Ed. 850 [1949], which held that the plaintiff is not entitled to maintenance and cure beyond the time when maximum cure is possible. He is not entitled to maintenance and cure as long as he is disabled nor to "ease attacks of headaches and epileptic convulsions." 336 U.S. 511, at p. 513, 69 S. Ct. 707, at p. 708.

 In this circuit, however, the doctrine has been more narrowly defined. In Gibson v. United States, 100 F. Supp. 954 [E.D. Pa. 1951], the court faced a situation in which the disabled seaman had suffered a heart attack. The curative treatment claimed consisted of sedatives and other medication designed to relieve Gibson of chest pains and other discomfort. He was still taking medication at the time of trial. As a result of this treatment and medication Gibson's pains were reduced in number and intensity but there was little noticeable physiological improvement in the damaged heart tissue. He was progressively able to resume his former work. The court distinguished Farrell v. United States, supra, by stating that in contrast to that case Gibson was far from completely disabled. It found that after continuing under the treatment of his physician for about three years Gibson was able to return to work for successively longer and longer periods. Thus it was found that the palliative treatment which the plaintiff had received was "treatment of a curative nature" within the meaning of the Farrell case.

 The court found that the testimony established that freedom from pain and discomfort are important to recovery of the victim from a heart attack although they do not remove the physical ...

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