Evans v. Blidberg Rothchild Company

• Decision Date: 15 September 1967
• Docket Number: 10088.,No. 10087,10087
• Parties: Edward L. EVANS, Appellee, v. BLIDBERG ROTHCHILD COMPANY, Incorporated, Appellant. Edward L. EVANS, Appellant, v. BLIDBERG ROTHCHILD COMPANY, Incorporated, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

382 F.2d 637 (1967)

Edward L. EVANS, Appellee, v. BLIDBERG ROTHCHILD COMPANY, Incorporated, Appellant.

Edward L. EVANS, Appellant, v. BLIDBERG ROTHCHILD COMPANY, Incorporated, Appellee.

Nos. 10087, 10088.

United States Court of Appeals Fourth Circuit.

Argued December 9, 1965.

Decided September 15, 1967.

Gerald Rubinger, Norfolk, Va. (C. Arthur Rutter, Jr., and Amato, Babalas, Breit, Cohen, Rutter & Friedman, Norfolk, Va., on brief), for Edward L. Evans.

R. Arthur Jett, Jr., Norfolk, Va. (Jett, Sykes & Berkley, Norfolk, Va., on brief), for Blidberg Rothchild Co., Inc.

Before BOREMAN and BRYAN, Circuit Judges, and MAXWELL, District Judge.

BOREMAN, Circuit Judge:

Edward Evans, a seaman, recovered a judgment in the United States District Court for the Eastern District of Virginia against the shipowner, Blidberg Rothchild Company, for maintenance in the amount of $568.00. The shipowner appeals on the grounds that Evans knew of his illness prior to signing on for duty and willfully concealed it from the ship's doctor and officers. Evans appeals from the court's refusal to award him attorney's fees. We reverse the judgment awarding maintenance and dismiss Evans' appeal.

Evans signed aboard defendant's ship, the S. S. WELLESLEY VICTORY, in early July 1963. On July 3, 1963, he was given a pre-sign-on physical examination in connection with which he filled out a required report. In the report he was asked if he had ever had a nervous breakdown and he answered "No." He was also asked if he had been hospitalized in the past five years and, if so, to state for what purpose. Evans answered this query by stating that he had suffered a sprained back. The last paragraph of the report, under which Evans affixed his signature, read as follows:

"I REALIZE THE TRUTH OF THESE STATEMENTS IS NECESSARY TO DETERMINE FITNESS FOR DUTY AT SEA AND I KNOW THAT THE COMPANY CANNOT BE HELD RESPONSIBLE FOR PRE-EXISTING PHYSICAL DISABILITY OR EXAGGERATION OF SAME THAT MAY ARISE WHILE EMPLOYED EVEN THOUGH SHOWN ABOVE. I HEREBY REPRESENT TO THE COMPANY THAT TO THE BEST OF MY KNOWLEDGE I AM ABSOLUTELY PHYSICALLY AND MENTALLY FIT FOR EXTENDED SEA DUTY."

On October 22, 1963, Evans left the ship and on October 24 entered the United States Public Health Service Hospital at Norfolk as an outpatient for treatment of a severe depressive condition which is a form of nervous disorder. He was not declared fit for duty until January 3, 1964. He subsequently brought this libel seeking maintenance and cure for the period from October 24, 1963, to January 3, 1964.

Trial was had in January 1965. Evans, being then at sea, did not appear at trial but additional time was granted to allow his attorneys to take his deposition. However, his deposition was not taken.

By way of defense to the libel, the shipowner introduced evidence, principally medical records, to show that Evans willfully concealed and misrepresented his condition. The records of the Public Health Service Hospital at Norfolk reveal that on June 16, 1961, Evans reported for examination of a depressed nervous condition. He was also seen on June 23, 1961, for his same disorder. In July 1961, while unfit for duty, he signed on S. S. OAKEY L. ALEXANDER. On July 24, 1961, he was removed from the ship and hospitalized in Spain because of his nervous and depressed condition. In August he was flown back from Spain and entered the Staten Island Public Health Service Hospital. He remained in the hospital until October 1961 when he was released but he was declared unfit for duty. Subsequently he instituted suit against the owners of the S. S. OAKEY L. ALEXANDER, claiming that conditions aboard the vessel caused his nervous breakdown. This suit was settled.

On October 18, 1961, Evans visited the Public Health Service Hospital at Norfolk and was noted to be suffering from the nervous condition. He was sent to Lexington, Kentucky, for special psychiatric care and examination and remained there until January 12, 1962, when he was released. However, he returned to Lexington on February 8, 1962. In June 1962 he was transferred back to the hospital at Norfolk.

On October 29, 1962, Evans signed aboard the USNS CACHE. He served only until November 6, 1962, at which time he left the vessel. He had suffered a fall which reactivated his nervous condition. From November 8, 1962, until April 18, 1963, Evans underwent further treatment for his nervous condition at the Public Health Service Hospital in Norfolk. On June 26, 1963, he was declared fit for duty by that hospital. It was a week later that he signed aboard the defendant's ship, stating that he had never had a nervous breakdown and that in the past five years he had only been hospitalized for a sprained back.¹

The District Court, in an oral opinion, found "that there is no satisfactory proof of wilful fraud or misrepresentation." In reviewing the judgment of a District Court, sitting without a jury, in admiralty, the court of appeals may not set aside the judgment unless it is clearly erroneous. A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. McAllister v. United States, 348 U.S. 19, 20, 75 S. Ct. 6, 99 L.Ed. 20 (1954); Scindia Steam Navigation Co., Ltd. v. Moon Engineering Co., 379 F.2d 928 (4 Cir. June 21, 1967).

Maintenance and cure is a contractual form of compensation given by general maritime law to a seaman who falls ill while in the service of his vessel. The shipowner's obligation is deep-rooted in maritime law and is an incident or implied term of a contract for maritime employment. See generally Vaughan v. Atkinson, 369 U.S. 527, 531, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962); Calmar Steamship Corp. v. Taylor, 303 U.S. 525, 528, 58 S. Ct. 651, 82 L.Ed. 993 (1938); Norris, The Law of Seamen, § 536, pp. 576-77 (2d ed. 1962). The shipowner's duty does not rest upon negligence nor is it restricted to those cases where the seaman's employment is the cause of the illness or injury. Calmar Steamship Corp. v. Taylor, supra, and cases cited therein. Maintenance and cure may be awarded by the courts even where libelant was suffering from a pre-existing illness. Burkert v. Weyerhaeuser Steamship Company, 350 F.2d 826 (9 Cir. 1965); Couts v. Erickson, 241 F.2d 499 (5 Cir. 1957); Ahmed v. United States, 177 F.2d 898 (2 Cir. 1949).

However, where a seaman knowingly or fraudulently conceals his illness from the shipowner maintenance and cure will be denied. Burkert v. Weyerhaeuser Steamship Company, supra; Sulentich v. Interlake Steamship Company, 257 F.2d 316, 320 (7 Cir. 1958); Rosenquist v. Isthmian Steamship Company, 205 F.2d 486 (2 Cir. 1953); Tawada v. United States, 162 F.2d 615 (9 Cir. 1947); Milton v. Pure Oil Company, 165 F.Supp. 635 (E.D.Va.1958), aff'd per curiam, 264 F.2d 892 (4 Cir....