Brett v. JM Carras, Inc., 10844.

• Citation: 203 F.2d 451
• Decision Date: 14 April 1953
• Docket Number: No. 10844.,10844.
• Parties: BRETT v. J. M. CARRAS, Inc. et al. THE ALEXANDRA.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

203 F.2d 451 (1953)

BRETT v. J. M. CARRAS, Inc. et al.

THE ALEXANDRA.

No. 10844.

United States Court of Appeals Third Circuit.

Argued January 20, 1953.

Decided April 14, 1953.

Thomas F. Mount, Philadelphia, Pa., (Rawle & Henderson, Philadelphia, Pa., Joseph W. Henderson, Philadelphia, Pa., on the brief), for appellants.

Paul M. Goldstein, Philadelphia, Pa., for appellee.

Before GOODRICH, STALEY and HASTIE, Circuit Judges.

STALEY, Circuit Judge.

This is a seaman's suit in admiralty for damages, wages, and maintenance and cure.

Libellant, Edmund Brett, was a member of the crew of respondent's tanker Alexandra. On April 6, 1949, the vessel was steaming in the Bay of Biscay and encountering very heavy seas and rough weather. Libellant was ordered to the forecastle head to stow mooring lines which had been left on deck after leaving LeHavre. While on his knees to let go the lashings, he was smashed to the deck and bumped about by a huge wave which broke over the bow. He suffered serious injuries to his head, back, and limbs. He was put in his bunk until the vessel reached Port Said, where he was hospitalized ashore while the vessel went on to the Persian Gulf. Upon her return twenty days later, he went back aboard and was taken to LeHavre and was discharged and on May 19, 1949, was repatriated. For a time he was cared for by his family physician. From July 1 to 11, 1949, he received outpatient treatment at the United States Public Health Service clinic in Philadelphia. He again went under the care of his family doctor until October 11, 1949, when he returned to sea and served until December 8, 1949. From January 6 to 23, 1950, he received physiotherapy treatments for back pains. He reshipped from February 8 to 11, 1950, and from June 30 to September 5, 1950. X-rays of his skull, taken on September 8, 1950, disclosed that he was suffering from Paget's disease. Again he went to sea and served intermittently from November 15, 1950, to March 26, 1951. During these voyages, his shipmates helped him to a very great extent with his daily tasks, since he was unable to do any but the lightest chores. He has done no work since March of 1951 and has been examined but not treated since January 23, 1950. He suffers from pain in his head and back. The Paget's disease of his skull is gradually increasing in the area involved. In the summer of 1951, he noticed that the pain was moving down to his forehead. The disease has affected his equilibrium so that he has a tendency to pitch forward and must take a step to right himself.

The district court's Finding of Fact No. 17 reads as follows:

"As a result of the accident hereinbefore described libellant sustained injuries to the head, body, back and limbs. He sustained fractures of the 7th and 8th ribs, right side, and fractures of the transverse processes, 2nd and 3rd, left side, and of the 3rd, right side; the healing of the 7th and 8th ribs resulted in excess callus formation, resulting in persistent neuritis. Libellant also sustained a traumatic sprain of the lumbosacral and sacroiliac joints, lumbar region, with aggravation of preexisting arthritis; and instability of the lumbosacral and sacroiliac joints. In addition, he sustained a ruptured intervertebral disc, lumbosacral region. Finally, as a result of the accident a condition of Paget\'s disease in libellant\'s skull was either initiated or activated."

There are also findings that, as a result of his chest and back injuries, libellant is permanently disabled from going to sea or engaging in laborious work but that, as a result of Paget's disease, he is not presently substantially disabled. Finally, on the cause of action for negligence, libellant was awarded $44,440.88, made up of three elements: wages lost, $7,440.88; loss of earning power, $20,000; and pain and suffering, $17,000.

Respondents now admit their negligence, that libellant's chest and back injuries were proximately caused thereby, and that he has suffered from Paget's disease since at least September 8, 1950. The only objection they raise on this phase of the case is that there was no causal connection shown between libellant's head injuries and the onset of Paget's disease, and, therefore, that the awards for loss of earning power and pain and suffering should be substantially reduced. The award for loss of earning power, however, was based solely on the chest and back injuries, not on the existence of Paget's disease. Consequently, even should respondents prevail on their argument concerning Paget's disease, the award for loss of earning power could not be disturbed. The award for pain and suffering is thus the only one open to dispute. A solution of that dispute requires some medical lore.

There was substantial agreement as to the definition of Paget's disease.¹ That given by Dr. Myers, libellant's witness, is fairly typical:

"It is a pathological process of bone due to a vascular change in the bone; there is some change of the blood vessels which supply the bone causing bone inflammation; the bone goes through various stages, and many of these stages are overlapping so that any of the three stages may be present at the same time. The first stage is considered to be rarefaction of the bone, the bone becomes osteoporotic, meaning that the lime salt is being dissolved in the bone, and at the same time there is a certain effort at healing which takes place, so that the bone becomes filled with a sort of fibrous plug and the bone thickens, new bone is laid down, but it is arranged in a mosaic pattern, it is not regular like normal bone, and the bone thickens completely. Areas of the bone are, therefore, soft and rehardening, and finally the bone becomes very thick and the marrow capacity is more or less obliterated, and the bone becomes very brittle and fractures easily."

Some further facts relating to the disease were brought out. It is always painful. The pain leads the diagnostician to take an X-ray, which is the only way to discover its existence. The X-ray will not, however, determine how long it has been present. If only one bone is affected, it is called monostotic Paget's; if more than one, polystotic. Since only his skull is affected, Brett's is a case of monostotic Paget's disease. As the bones thicken, they press on nerves, and, thus, Paget's of the skull can cause deafness and blindness, and can affect the victim's balance, as it has done in this case. If it progresses into the face bones, the thickening may produce grotesque features, leontiasis ossea, or a lionlike facial expression. There is no known cure for the disease, but it appears that magnesium...