Gadsden v. United States

• Decision Date: 25 January 1944
• Docket Number: No. 2623.,2623.
• Citation: 54 F. Supp. 151
• Parties: GADSDEN v. UNITED STATES et al.
• Court: U.S. District Court — District of Maryland

54 F. Supp. 151

GADSDEN v. UNITED STATES et al.

No. 2623.

District Court, D. Maryland.

January 25, 1944.

Hillman & Hillman, of Baltimore, Md., for libellant.

Bernard J. Flynn, U. S. Atty., and C. Ross McKenrick, Asst. U. S. Atty., both of Baltimore, Md., and David A. Turner, Atty. Bureau of War Risk Litigation, of Washington, D. C., for libellees.

CHESNUT, District Judge.

In this case, the libellant, as widow and the declared beneficiary of her deceased husband, Philip Gadsden, is seeking to recover $5,000 on a seaman's war risk insurance policy. The respondents in the case are the United States of America, the War Shipping Administration and A. H. Bull & Co., a corporation. As no evidence was offered to show any liability on the War Shipping Administration or A. H. Bull & Company, the case will be considered only as against the United States.

The case has been submitted upon testimony and arguments of counsel and the court makes the following findings of material facts in the case.

Findings of Fact

1. Philip Gadsden, a resident of Baltimore City who had been a seaman for some years, developed a serious heart ailment which disabled him while employed aboard the SS Jean and the SS Evelyn in 1940 and 1941. This necessitated his being hospitalized at the United States Marine Hospital, Baltimore, Maryland, from August 22, 1941 to September 11, 1941, for illness diagnosed and treated as "cardiac disease, valvular aortic insufficiency, syphilis tertiary; aortic insufficiency". He was further hospitalized there from October 4, 1941 to October 20, 1941 for similar disease. On October 20, 1941, he was certified as "totally disabled" and the prognosis by the physician at the hospital was "poor". On account of this he was paid $750. by "A. H. Bull & Co. Inc." and executed to it jointly with the A. H. Bull Steamship Co., the Bull Steamship Line and the Baltimore Insular Line, and the Steamships Jean and Evelyn, and any and all underwriters thereon a formal release, dated November 7, 1941.

2. On or about April 13, 1942, Philip Gadsden shipped on the SS Arlyn at the Port of New York for a voyage as cook and steward for wages of $135. per month. This vessel was then owned by the United States Government and operated by A. H. Bull & Co., as agents. On April 13, 1942, apparently when first joining the SS Arlyn as a member of the crew, he designated his wife, Rebecca Gadsden, 1217 N. Bond Street, Baltimore, Maryland, as the beneficiary of his war risk life insurance. The voyage of the Arlyn from New York commenced April 14, 1942. On May 19, 1942, the vessel arrived at Tampa, Florida, and on that date the master of the ship certified to the medical officer in charge of the United States Public Health Service at Tampa, that Philip Gadsden served aboard the above vessel from April 13, 1942, to date. Gadsden was then furnished hospitalization at the United States Public Health Service Relief Station, Tampa, from May 19 to May 29, 1942, at which time his diagnosis was "cardiac renal and syphilis". The hospital record as to his condition upon admission stated "patient complained of shortness of breath and swelling of feet. Moist rales throughout lung area. Blood came back 4 plus". On May 29, the patient was discharged from Tampa with the notation "Patient transferred to Marine Hospital, Savannah, Georgia, no change in condition". However, in fact Gadsden did not go to the hospital at Savannah, but some time in June or July 1942, came by train to Baltimore and went to his home where his wife, the libellant in this case, testified he arrived in an apparently very ill condition. He was subsequently treated for a while, apparently by daily visits only, at the Marine Hospital in Baltimore. But on July 15, 1942, he was there hospitalized from July 15, 1942 to August 17, 1942. The diagnosis of his condition at that time was "aortic regurgitation, syphilis, tertiary, cardiac disease, — dilation with congestive heart failure, cardiac disease, hypertropyarterial hypertension." His condition upon admission was stated as follows: "The patient was last admitted to this hospital on July 15, 1942, with respiratory distress and considerable edema of the feet and ankles. We considered him first as in congestive heart failure and treated him accordingly." His condition on discharge on August 17, 1942, was stated as follows: "Following this treatment the patient responded slowly. His cardiac compensation was finally established and he was discharged from the hospital on a maintenance dose of digitalis," notation being made that no further hospitalization was necessary. The patient was considered permanently and totally disabled and the prognosis was "poor". Gadsden returned to his home at 1217 N. Bond Street, Baltimore, where he died September 4, 1942. His death certificate from the Baltimore City Health Department shows that he was a colored male 55 years of age, occupation seaman, and that the immediate cause of his death was cardiac failure due to aortic insufficiency. The certificate contained blanks for the insertion of the data in the event the death was due to external causes, including blanks as to (c) where did injury occur, (d) did injury occur about home, on farm, industrial place, public place — while at work, and (e) means of injury. None of these blanks were filled in. The certificate was signed by Hugh B. McNally, Medical Examiner.

3. The statutory authority for merchant seamen's war risk insurance is to be found in the Merchant Marine Act of 1936 as amended, 46 U.S.C.A. § 1101 et seq. Section 1128a authorizes the United States Maritime Commission to insure—"(e) Masters, officers, and crews of such vessels and other persons employed or transported thereon against loss of life, personal injury, or detention by an enemy of the United States following capture". Section 1128g authorizes the authority conferred upon the Commission by sections 1128-1128h to be exercised by the Administrator of the War Shipping Administration. Section 1128h authorizes the War Shipping Administration to insure persons and property directly. Pursuant to this statutory authority the government, through proper agencies, authorized personal insurance for crews of merchant vessels documented under the laws of the United States, in the amount of $5,000. in certain areas. By a ruling made February 6, 1942, the Maritime Emergency Board supplemented its decision providing for such personal insurance by prescribing the form of controlling policy. This policy form constituted group insurance "for the account of the masters, officers and crews of the American vessel called —" during the voyage commencing on or about a certain date, payable in case of claim in accordance with the following schedules and in funds current in the United States. A copy of this policy form was produced at the trial by counsel for the government. It will be referred to more fully hereafter. It was provided in the policy form that payments if due should be made directly to the members of the crew or, in case of death, to his beneficiary designated at the time he signed on.

4. Libellant's claim is only for the sum of $5000. for the death of her deceased husband. No claim is made for accident, injury, sickness or other cause except for his death. It will have been noted from the above that his death did not occur during the voyage of the Arlyn; but more than three months after he had been first hospitalized at Tampa. The only evidence in the case as to what transpired affecting him while he was on the Arlyn consisted of statements made by him to his wife and two daughters on his return to Baltimore, and his narrative statement contained in the "history" given by him when he was last admitted to the Marine Hospital at Baltimore. These statements of the deceased seaman were objected to by counsel for the government and admitted only subject to exception. If not legally admissible for the purpose of proving facts narrated by the seaman, counsel for the libellant frankly conceded that he has no basis for recovery in this case. Counsel for the government also contends that even if the statements were admissible and constituted sufficient proof of the facts, there is no proper claim under the provisions of the policy.

5. The substance of the statements made by the deceased seaman, as testified to by his wife and daughters, was to the effect that on April 20, 1942, while the Arlyn was at sea in a convoy, a submarine alarm was sounded on the vessel, after word had been received that another ship in the convoy had been sunk by a submarine. Gadsden said that this "badly scared" him and he felt a sinking sensation as if his heart had dropped into his stomach, and that he collapsed and was taken to his bunk by another or other members of the crew and was completely disabled from that time until he was discharged from the ship at Tampa on May 19, 1942. There was no confirmatory evidence of any kind of the seaman's verbal statements. Counsel informed the court at the trial that subsequently the Arlyn had been lost at sea, from a cause not stated, and that some of the crew had been lost; but the majority, including the master, had been rescued; that an effort had been made to find and interview surviving members of the crew but their addresses could not be learned, except that the master of the ship was on another voyage and unavailable as a witness. Presumably the ship's logs were also lost with the ship.

The conclusion of law is —

1. That there is no legally competent evidence that the death of Philip Gadsden was due to the risk covered by the policy, and

2. That the libel must be dismissed.

Opinion

The first question in the case is whether the hearsay statements of the insured seaman were admissible in evidence for the purpose of proving the fact that he had been "badly scared" by the submarine alarm on the ship; and that this possibly disabled him thereafter until his death. I have...