Diaz v. Gulf Oil Corporation

• Decision Date: 15 January 1965
• Citation: 237 F. Supp. 261
• Parties: Saturnino Lima DIAZ, Plaintiff, v. GULF OIL CORPORATION, Defendant.
• Court: U.S. District Court — Southern District of New York

237 F. Supp. 261

Saturnino Lima DIAZ, Plaintiff, v. GULF OIL CORPORATION, Defendant.

United States District Court S. D. New York.

January 15, 1965.

Henry Isaacson, New York City, for plaintiff; Theodore H. Friedman, New York City, of counsel.

Dorsey & Burke, New York City, for defendant; James F. Hart, New York City, of counsel.

FEINBERG, District Judge.

This is a suit by plaintiff Saturnino Lima Diaz against defendant Gulf Oil Corporation for maintenance and cure. Plaintiff originally brought a cause of action under the Jones Act and for unseaworthiness, but these claims were withdrawn at trial. By stipulation of the parties jury trail was waived. The essential facts are found as set forth below.

Diaz is a Spanish-speaking seaman who has been steadily employed in the maritime service on numerous ships since 1945. He is now forty-nine years old. Diaz has great difficulty with the English language, and the services of an interpreter were required at trial. His last employment was as a galleyman aboard defendant's vessel, the S.S. Gulf Queen, from December 16, 1960 to January 13, 1961. Plaintiff has been bothered with asthma since childhood¹ but has worked steadily. However, at times prior to the crucial dates involved here, plaintiff was rejected by various shipping companies because of asthma.² After these occasions, however, plaintiff's condition apparently improved, he was marked fit for duty by the United States Public Health Service ("U.S.P.H.S.") and subsequently shipped out to work as a seaman.

In the fall of 1960, Diaz had an asthmatic attack requiring outpatient care. He was marked fit for duty on November 22, 1960, when his physical condition had improved considerably. On December 14, 1960, plaintiff was rejected by a shipping company for chronic bronchial asthma.³ He was examined that same day at a U.S.P.H.S. clinic and was again marked fit for duty, but was advised to limit his tours of duty to coastwise or local trips.⁴ Two days later, defendant's doctor gave plaintiff a "pre-sign-on" physical and found nothing physically wrong with him.⁵ On the same day, Diaz commenced his employment on the Gulf Queen.

About January 9, 1961, plaintiff began to feel ill, experiencing severe pains in the chest and elsewhere, coughing and eventually a nose bleed.⁶ On January 13, he was paid off the ship at New Haven, Connecticut, only five days prior to the scheduled termination of the voyage, and given a Master's Certificate permitting him to use U.S.P.H.S. facilities. On January 17, he reported to the U.S.P.H.S. clinic at Hudson and Jay Streets in New York City, where his condition was diagnosed as torticollis due to a cold and chronic asthma.⁷ Thereafter, he received regular outpatient treatment until February 21, 1961. At that time, although he was still diagnosed as having an upper respiratory infection, the prediction was made that he would be fit for duty on February 28.⁸ Plaintiff was not examined again until April 17, and in the intervening period had at least two further attacks of asthma.⁹ On that date, plaintiff was rejected by a doctor from Moore-McCormack Lines because of his asthmatic condition and immediately thereafter went to the U.S.P.H.S. clinic for treatment.¹⁰

Plaintiff continued to receive active outpatient treatment at the U.S.P.H.S. clinic until October 11, 1962. During the course of his treatment, on May 4, 1961, he was marked not fit for duty permanently.¹¹ After October 11, 1962, plaintiff stopped going to the U.S.P.H.S., but did receive periodic care and treatment at Lincoln and St. Francis Hospitals in the Bronx, including several hospitalizations for severe and sudden asthmatic attacks.¹² Plaintiff has not worked as a seaman since leaving the Gulf Queen and is not physically able to do so now.

The contentions of the parties raise a number of key issues: (1) whether plaintiff actually suffered an asthmatic attack while in the service of the Gulf Queen; (2) whether plaintiff knowingly concealed his asthmatic condition when he was examined by defendant's doctor prior to employment on the Gulf Queen; (3) whether plaintiff has reached a point of maximum cure for his condition and, if so, when; (4) whether he is entitled to recover his expenses for medical treatment and hospital care at non-U.S.P.H.S. facilities; and (5) assuming defendant breached its duty to furnish him maintenance and cure, whether plaintiff is entitled to counsel fees or other damages.

The first issue is whether plaintiff actually became ill aboard the Gulf Queen of the condition from which he claims he has continued to suffer. Although the evidence is conflicting on the point, I find, as a fact, that plaintiff became ill while on, and in the service of, the ship¹³ which illness caused a recurrence of his asthma. Since then, plaintiff has continued to suffer from this asthmatic condition, which has since worsened.¹⁴ Although defendant appeared to contend at one point of the trial that there had to be a causal connection between conditions on the ship and plaintiff's asthmatic attack in order to subject defendant to liability for maintenance and cure, this position is clearly erroneous. Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 58 S.Ct. 651, 82 L. Ed. 993 (1938).

On the second issue, the law is that non-disclosure of a physical condition by a seaman must be akin to culpable misconduct in order to bar his action for maintenance and cure, and honest, though negligent, failure to disclose will not defeat his claim. Couts v. Erickson, 241 F.2d 499, 502-503 (5th Cir. 1957); Lipscomb v. Groves, 187 F.2d 40, 45 (3d Cir. 1951); Ahmed v. United States, 177 F.2d 898, 899-900 (2d Cir. 1949). There is no doubt that plaintiff knew he had bouts of asthma prior to his employment application to defendant on December 16, 1960. However, he had just been advised by the U.S.P.H.S. clinic that he was fit for duty so long as he confined himself to coastwise or local trips¹⁵ and was apparently following this advice.¹⁶ Moreover, defendant's doctor examined him and did not find the wheezing or other evidence of asthma which manifested themselves when plaintiff was not feeling well. Cf. Rosenquist v. Isthmian S.S. Co., 205 F.2d 486, 489 (2d Cir. 1953). Plaintiff testified that he was asked by defendant's doctor if he had any diseases and he answered this in the negative.¹⁷ Had plaintiff understood his prior difficulty with asthma as being a disease and the doctor's inquiry to cover past diseases as well as present, plaintiff's conduct might well have barred a maintenance and cure action. However, in view of plaintiff's language difficulties, cf. Ahmed v. United States, supra; Fuentes v. Panama Canal Co., 146 F.Supp. 303, 306 (S.D.N.Y.1956), and the fact that he had just been advised by the U.S.P.H.S. that he was fit for duty, I cannot, in good conscience, find that plaintiff understood the question in the way defendant now urges or engaged in culpable concealment.

The next issue is whether plaintiff has reached a point of maximum medical cure. This might, under other circumstances, be a somewhat more complex issue than it is here. However, defendant saw fit to put in no medical testimony. The only evidence in the record on this issue, with one exception to be discussed below, is the testimony of Dr. William Weingarten, an obviously qualified expert in the diagnosis and treatment of asthma and a consultant in internal medicine to the U.S.P.H.S. Hospital on Staten Island.¹⁸ Dr. Weingarten testified that plaintiff has by no means reached the point of maximum medical cure and that the treatment he recommends would have "a good chance"¹⁹ of curing plaintiff's basic condition and would at least improve his condition.²⁰ The treatment would involve a diagnostic work-up to see if plaintiff's asthma had an allergic basis (which the doctor indicated was quite likely),²¹ desensitization if this diagnosis proved to be correct, and use of gamma globulin, antibiotics and drugs such as cortisone. The doctor estimated that treatment might take two to three years and that plaintiff would be benefited by such treatment if it were commenced now,²² and would have been benefited had it been commenced soon after plaintiff left the Gulf Queen.²³

The only conflicting medical testimony is the notation in the U.S.P.H.S. clinical records that plaintiff, while not fit for duty on February 21, would be fit for duty on February 28.²⁴ Defendant apparently argues from this that plaintiff reached a point of maximum medical cure at that time.²⁵ However, Dr. Weingarten stated flatly that the diagnosis that plaintiff was fit for duty on February 28, 1961 "was an incorrect diagnosis."²⁶ He further pointed out that the notation in the hospital record made clear that on February 21, plaintiff still had an upper respiratory infection and that no one from the U.S.P.H.S. examined plaintiff after that date, before or on February 28, to see if he actually was fit for duty on February 28.²⁷ Even if there had been a flat finding by the U.S.P.H.S. that plaintiff was fit for duty on February 28, on the basis of an examination on that day, this would not be conclusive. Koslusky v. United States, 208 F.2d 957, 959 (2d Cir. 1953); Diniero v. United States Lines Co., 185 F.Supp. 818, 820 (S.D.N.Y.1960), aff'd, 288 F.2d 595, 91 A.L.R.2d 770 (2d Cir. 1961). Plaintiff had been under treatment at U.S.P.H.S. facilities since January 17, 1961, after he left the Gulf Queen. Dr. Weingarten's testimony was that the treatment given both at U.S.P.H.S. facilities and Lincoln and St. Francis Hospitals was insufficient to furnish plaintiff the maximum medical cure since nobody suggested the treatment that Dr. Weingarten recommends. Accordingly, in the absence of medical testimony or other evidence to the contrary, I accept the conclusion of the doctor and find that plaintiff, since January 17, 1961, has never attained the point of maximum medical cure and is, therefore, entitled to unpaid...