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decided: June 29, 1977.


Appeal from the Judgment entered May 3, 1976, of the Court of Common Pleas, Civil Division, of Allegheny County at No. 348 July Term, 1973.


Bruce R. Martin, Pittsburgh, for appellant.

Thomas Hollander, Pittsburgh, for appellee.

Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., files a dissenting opinion.

Author: Jacobs

[ 249 Pa. Super. Page 50]

Appellee Norman Richards brought a personal injury action against appellant Dravo Corporation, for damages sustained as a result of an injury appellee claimed to have received during the course of his employment on appellant's dredge Number Sixteen on the Ohio River. Following a jury trial, two verdicts were entered; one for $60,000.00 in favor of plaintiff-appellee, and one for $10,763.29 in favor of appellant, representing a counterclaim for payments already made to appellee at time of trial.

Several allegations of error are made on appeal, focusing primarily on the charge to the jury, an apparent molding of the verdict, and arguments that the verdict was excessive and against the weight of the evidence. While we agree with the allegation that certain errors were committed at trial, we believe that those errors were either corrected by the trial court, or were not of sufficient magnitude to require a new trial; hence we affirm.

This action was brought pursuant to the Merchant Marine Act of 1920, § 33, 41 Stat. 1007, 46 U.S.C.A. § 688 (1975), commonly called the Jones Act.*fn1 It is established that the courts of this Commonwealth have concurrent jurisdiction with federal courts to try actions brought under the Jones Act for injuries sustained, and for maintenance and cure under traditional maritime law. Garrett v. Moore-McCormack Co., 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239 (1943); Rankin v. Iron City Sand and Gravel Corporation, 356 Pa. 548, 52 A.2d 455 (1947).

Appellant's first assertion of error is that the trial court permitted duplication of damages. We do not agree. At trial, plaintiff was permitted to place into evidence certain items of damages such as lost wages and medical expenses, even though portions of those items had already

[ 249 Pa. Super. Page 51]

    been paid by defendant pursuant to the long standing obligation of the ship's owner to provide "maintenance, cure, and wages" to a seaman injured or taken ill while in service of the ship, without regard to the question of fault. "Maintenance" is a payment intended to provide food and lodging for the seaman while he is recovering from the injuries or illness, while "cure" is a payment to cover medical expenses incurred until such time as the seaman has reached the maximum medical recovery thought possible. Benedict on Admiralty, Vol. IB, § 51 (7th ed. 1976). The right to maintenance, cure, and wages arises out of an implied contractual obligation, and is separate and independent from the right to receive compensatory damages in a negligence or unseaworthiness action. Pacific S.S. Co. v. Peterson, 278 U.S. 130, 49 S.Ct. 75, 73 L.Ed. 220 (1928). While these rights are separate, and not mutually exclusive, there is a certain degree of overlap:

"It is obvious on principle that a plaintiff who has recovered medical expenses, a living allowance or unearned wages under the name of maintenance and cure has no right to recover them a second time in a damage action. Thus any maintenance and cure expenses which have been recovered as damages ought to be subtracted from a maintenance and cure award and vice versa." Gilmore & Black, The Law of Admiralty, §§ 6-9, p. 261 (1957).

Clearly, a seaman's right to bring an action for damages, in addition to receiving maintenance and cure, does not entitle him to double recovery for any given element of damage. Crooks v. United States, 459 F.2d 631 (9th Cir. 1972). In the case at bar, appellee was permitted to include in his damage claim, medical expenses and lost wages that in fact had already been paid by appellant. The amount already paid by appellant was stipulated at trial to be $10,763.29. This amount was entered as a verdict in favor of appellant, as a set-off against appellee's total damage award. Since the amount paid under the maintenance and cure obligation will ultimately be subtracted from the total damage award, we fail to see any merit in appellant's claim that duplication of damages was permitted.

[ 249 Pa. Super. Page 52]

Appellant makes several claims of error with respect to the trial court's supplemental charge on causation and duty.*fn2 The relevant ...

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