Atkins v. Crounse Corporation

• Decision Date: 07 July 1961
• Docket Number: Civ. A. No. 1119.
• Parties: Fred ATKINS, Plaintiff, v. CROUNSE CORPORATION, Defendant.
• Court: U.S. District Court — Western District of Kentucky

196 F. Supp. 904

Fred ATKINS, Plaintiff, v. CROUNSE CORPORATION, Defendant.

Civ. A. No. 1119.

United States District Court W. D. Kentucky, at Paducah.

July 7, 1961.

William & Rivers, Paducah, Ky., for plaintiff.

Lord, Bissell & Brook, Chicago, Ill., and Boyd & Boyd, Paducah, Ky., for defendant.

SHELBOURNE, District Judge.

January 19, 1960, the plaintiff Fred Atkins filed this action in this Court against Crounse Corporation seeking to recover the sum of $322,350. The suit arose out of an accident which plaintiff alleges occurred while he was employed by the defendant as a member of the crew of the M/V Hazel. The grounds for recovery were (1) that the M/V Hazel was not seaworthy on September 9, 1959, when the plaintiff sustained an injury; (2) that, under the Jones Act, the defendant negligently caused plaintiff's fall and injuries, and (3) that, in addition to the damages sought, plaintiff is entitled to maintenance and cure for medical expenses and hospital bills up to the time of the filing of the suit and thereafter as necessary.

The case was tried to a jury from October 26 through November 1, 1960, on the issues of fact with respect to the alleged unseaworthiness of the M/V Hazel and the defendant's negligence. The Court was to hear and determine the maintenance and cure phase of the case as a pure admiralty cause on the proof heard by the jury, with the right to the parties to introduce additional proof on maintenance and cure. The issues of negligence of the defendant and unseaworthiness of the vessel were submitted to the jury on seven interrogatories. The jury answered only the first three interrogatories, which resulted in a finding for the defendant on those issues.

Subsequently, on December 1, 1960, additional testimony was introduced to the Court on plaintiff's claim for maintenance and cure. The case was argued orally to the Court and has been briefed by counsel as recently as June 18, 1961. The entry of a final judgment on plaintiff's claims of defendant's negligence and unseaworthiness of the vessel awaits a determination of the issue of maintenance and cure, which will dispose of the entire case and enable a review, if desired to be had on one appeal.

The findings of fact and conclusions of law here are concerned solely with the question of maintenance and cure and it is immaterial whether the plaintiff's injuries resulted from the defendant's negligence, from the unseaworthiness of the vessel, or from his own carelessness.

The principal defense interposed by the defendant is that the plaintiff Atkins so misrepresented his physical condition and previous medical and surgical history to the defendant's medical examiner in his application for employment that he has precluded himself from the generous provisions which a ship owes to the members of its crew as maintenance and cure or maintenance and care.

Findings of Fact.

From the testimony heard, depositions read, exhibits filed, and briefs of counsel, the Court makes the following findings of fact:

(1) The plaintiff Fred Atkins is, and was at all times involved in this proceeding, a citizen and resident of Paducah, Kentucky.

(2) The defendant Crounse Corporation is a Kentucky corporation engaged in the operation of towboats on the inland waterways of Kentucky and adjoining states, and at all times involved in this proceeding was the owner and operator of the M/V Hazel, its home port being Paducah, Kentucky.

(3) In June, 1959, plaintiff was employed by the defendant as cook and member of the crew of the M/V Hazel.

(4) September 9, 1959, while the M/V Hazel was docked at Hardinsburg, Kentucky, plaintiff was on duty as cook on the vessel and attempted to take a cup of coffee from the galley at the stern of the boat to the pilot in the pilot house atop the bow of the boat. While ascending a flight of steel steps from the lower to the upper deck at the stern of the vessel, or when he reached the top of the steps, plaintiff sustained a fall. A member of the crew found him at the foot of the steps in a semi-conscious or dazed state.

(5) Plaintiff was taken by ambulance to the Breckinridge Memorial Hospital at Hardinsburg, Kentucky, where x-rays were made and he was examined by Dr. John Allen Kincheloe. Dr. Kincheloe found no fractures, abrasions or contusions and plaintiff was removed from that hospital by ambulance to the Western Kentucky Baptist Hospital at Paducah, Kentucky.

(6) Upon his admission to Western Kentucky Baptist Hospital on September 9, 1959, the plaintiff Atkins became the patient of Dr. Merrill W. Fowler, physician and surgeon, and Dr. Samuel L. French, an orthopedic surgeon. On the day of his admission to the hospital Dr. Fowler made x-rays and the films disclosed no injury to the bony structure of plaintiff's body. In his examination of plaintiff on the same date, Dr. Fowler found no bruises, abrasions, or wounds. Plaintiff was discharged from that hospital September 21, 1959, but returned in an ambulance on the following day, September 22, and remained under the care and observation of Dr. Fowler and Dr. French until discharged September 25, 1959.

(7) September 27, 1959, plaintiff was sent by defendant to the Baptist Memorial Hospital at Memphis, Tennessee, where he became the patient of Dr. Richard L. DeSausseur, a neurosurgeon, and remained under his care until discharged from the hospital on October 6, 1959.

(8) The defendant paid plaintiff his wages to September 15, 1959, and maintenance at the rate of $5 per day up to and including October 21, 1959. In addition, defendant paid plaintiff's hospital and medical expenses at Breckinridge Memorial Hospital, Hardinsburg, Kentucky; Western Kentucky Baptist Hospital, Paducah, Kentucky; Baptist Memorial Hospital, Memphis,...