Potter Title & Trust Co. v. Ohio Barge Line

• Decision Date: 04 November 1948
• Docket Number: Civil Action No. 5129.
• Citation: 81 F. Supp. 108
• Parties: POTTER TITLE & TRUST CO. v. OHIO BARGE LINE, Inc.
• Court: U.S. District Court — Eastern District of Pennsylvania

81 F. Supp. 108

POTTER TITLE & TRUST CO. v. OHIO BARGE LINE, Inc.

Civil Action No. 5129.

United States District Court W. D. Pennsylvania.

November 4, 1948.

Hymen Schlesinger, of Pittsburgh, Pa., for plaintiff.

Ira R. Hill, of Pittsburgh, Pa., for defendant.

McVICAR, District Judge.

Joseph Engel was a seaman in the employ of the defendant from November 10, 1944, to January 7, 1945, in the capacity of steward and cook on the vessel of defendant named "City of Pittsburgh." During said time this vessel made a trip from Pittsburgh to New Orleans and return. He entered a Marine Hospital at Pittsburgh on January 19, 1945. He died February 21, 1945.

Engel's death was contributed to and aggravated by lack of proper medical care and service and the character and amount of work required of him as a steward and cook.

This action under the Jones Act by the Administrator of his estate is to recover damages based, inter alia, upon the negligence of the defendant in failing to furnish him with proper medical service and care during the time of his employment and requiring him to do work of character and in an amount which he was unable to do. I am of the opinion that the death of Joseph Engel was aggravated by and contributed to by the negligence of the defendant in failing to furnish him with proper medical care and treatment and also by the character and the amount of work which he was required to do.

The Captain of the "City of Pittsburgh" knew that Joseph Engel was in the Marine Hospital in September and October, 1944, about a month before entering into defendant's employment. He knew that Engel had shortness of breath and hardness or difficulty in breathing. He knew of the long hours of work of Engel each day on the vessel and the character and amount of the work performed by Engel. He knew of the atmospheric condition during the trip. The Captain's knowledge of the facts was sufficient to impose on defendant the duty of providing competent medical service and care, also to furnish work in kind and amount suitable to his condition. This defendant failed to do, therefore, it was guilty of negligence. See Cortes v. Baltimore Insular Line, Inc., 287 U.S. 367, 53 S.Ct. 173, 77 L.Ed. 368; Murphy v. American Barge Line Co., 3 Cir., 169 F.2d 61; Garrett v. Moore-McCormack Co., 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239.

Joseph Engel was guilty of contributory negligence. He knew of his prior heat stroke, of his difficulty in breathing, his shortness of breath, how his ability to labor had been affected during several years before entering into the employment of the defendant. He knew of his hospitalization during the preceding years, the last being about a month before entering into the employment of the defendant. With this knowledge, as well as the knowledge of other facts, he entered into defendant's employment and remained therein without medical care or service and engaged in work of a character and amount which he must have known he was not capable of doing.

I am of the opinion that Joseph Engel and the defendant were guilty of negligence in equal shares which contributed to and aggravated Engel's death.

Let an order be prepared and submitted for judgment in favor of the plaintiff and against the defendant in the amount of $4,000 with costs in the action under the Jones Act and for judgment for the defendant on the claim for maintenance and cure.

Findings of Fact and Conclusions of Law.

This is an action by the Administrator of a deceased seaman against the Ohio Barge Line, Inc., under the admiralty laws for maintenance and cure and also for damages based on negligence under the Merchant Marine Act of 1920. The parties have stipulated that judgment should be entered in favor of the defendant as to the claim for maintenance and cure. On the action under the Jones Act based on negligence, the Court makes the following Findings of Fact and Conclusions of Law:

Findings of Fact.

1. Complainant, Potter Title and Trust Company, is a corporation engaged in the General banking and trust business, having its office at the corner of Fourth Avenue and Grant Street, Pittsburgh, Pennsylvania, and at No. 4517 of 1945 was appointed administrator of the Estate of Joseph Engel, deceased.

2. Respondent, Ohio Barge Line, Inc., is a corporation engaged in the business of marine transportation as a common carrier upon the navigable waters of the Mississippi and Ohio Rivers and their tributaries, having an office for the general transaction of its business at Grant Building, Pittsburgh, Pennsylvania.

3. The defendant is the owner and operator of a certain steamship, "The City of Pittsburgh," engaged in interstate commerce as a common carrier upon the navigable waters of the United States.

4. That on or about November 15; 1944, this plaintiff's decedent, Joseph Engel, left the city of Pittsburgh upon a certain trip as a seaman in the service and employ of this respondent, he being signed to duty upon the said steamship, "City of Pittsburgh," said trip and engagement being for a certain tour of duty which extended from November, 1944, until the date of January 7, 1945, and that during the course of said trip or tour of duty, said steamship "City of Pittsburgh" made various and sundry calls at various ports upon the navigable waters of the Ohio and Mississippi Rivers and their tributaries, between Pittsburgh, Pennsylvania, and New Orleans, Louisiana, both en route from Pittsburgh, Pennsylvania to New Orleans, Louisiana and return.

5. Frank J. Hibstenberg was master and captain of the steamer, "City of Pittsburgh," owned and operated by defendant in navigation on the Ohio and Mississippi Rivers during the voyage from Pittsburgh to New Orleans and return from about November 3, 1944 to January 7, 1945.

6. Joseph Engel was a seaman employed on said vessel as a member of the crew in the capacity of steward and cook.

7. Captain Hibstenberg met said Engel for the first time in October, 1944, while both the Captain and Engel were resident patients in the Marine Hospital at Pittsburgh, Pennsylvania.

8. On or about November 10, 1944, the Captain employed Engel and had full discretion and authority on behalf of defendant in filling a crew on said vessel.

9. At the time he hired Engel, the Captain did not obtain a doctor's certificate or a hospital certificate from the Marine Hospital as to Engel's condition nor did the Captain cause said Engel to have any medical examination by a physician as a condition of employment, nor did the Captain ask for or receive information as to Engel's condition.

10. The duties of Engel as steward and cook on the vessel consisted among other things in cooking and baking, peeling potatoes, frying and generally preparing food for the meals of the crew of 26 persons or more on said vessel during the voyage for three meals each day. In performing said duties Joseph Engel was assisted by a cook and three maids all of whom helped to prepare and serve the meals to the members of the crew.

11. Said Engel worked in the galley each day during the voyage.

12. The Captain noticed that Engel, although working at every meal, acted like he was short of breath and "used to breathe hard."

13. Engel performed his duties in every respect and did not miss even an hour of his work during the entire voyage.

14. Engel spent the majority of his time in the kitchen and bakeshop. In the kitchen he supervised the meals, cooked for the crew and was in attendance at all times during the preparation of the meal. While baking was being done in the bakeshop, he was supervising and doing some baking himself, and was in attendance at all times.

15. The weather was changeable and winter conditions of cold, dampness and fog were encountered during the voyage.

16. Engel could and did go frequently from the kitchen or bakeshop onto the outer deck where...