Garrett v. Moore-McCormack Co.

• Decision Date: 05 January 1942
• Docket Number: 209
• Citation: 23 A.2d 503,344 Pa. 69
• Parties: Garrett, Appellant, v. Moore-McCormack Company, Inc., et al
• Court: Pennsylvania Supreme Court

23 A.2d 503

344 Pa. 69

Garrett, Appellant, v. Moore-McCormack Company, Inc., et al

No. 209

Supreme Court of Pennsylvania

January 5, 1942

Argued November 24, 1941.

Appeal, No. 209, Jan. T., 1941, from judgment of C.P. No. 5 Phila. Co., March T., 1937, No. 3221, in case of Wade Garrett v. Moore-McCormack Company, Inc., et al. Judgment affirmed.

Trespass. Before ALESSANDRONI, J.

Verdict for plaintiff. Judgment entered for defendant n.o.v Plaintiff appealed.

Judgment affirmed.

Abraham E. Freedman, of Freedman & Goldstein, for appellant.

Rowland C. Evans, Jr., with him Springer H. Moore, Jr., and Krusen, Evans & Shaw, for appellee.

Before SCHAFFER, C.J.; MAXEY, DREW, LINN, STERN, PATTERSON and PARKER, JJ.

OPINION

MR. LINN, JUSTICE.

Plaintiff, a seaman, sued on two causes of action: (1) pursuant to Section 33 of the Jones Act, ^[1] 41 Stat. 1007, 46 U.S.C.A. section 688, for damages for negligence; and (2) for maintenance and cure under the admiralty law. He declared for $100,000. The defense was that plaintiff had released his claims. The jury rendered a verdict, "$1,000 for maintenance, and $3,000 for pain, injury and wages." Defendants moved for judgment n.o.v. and their motion was granted on the ground that the evidence was insufficient to support a finding that plaintiff's release was invalid. Plaintiff appealed.

Plaintiff was employed as a deck maintenance man on board the S/S MINNEQUA at $50 per month, etc., for a voyage to Baltic ports and return. The voyage began January 10, 1937, and ended March 5, 1937. He claimed for various injuries but particularly for serious injury to his back, a fracture of the lower transverse spinal processes, which he alleged resulted from the fall on him of a defectively fastened ventilator cover. We accept his statement, because corroborated by one of respondent's witnesses, that the accident occurred the day before the vessel reached its first port, Gothenburg, and that he received first aid and went to bed. During the six-hour period the vessel remained in that port, plaintiff remained on board. The next port, Copenhagen, was reached a day or so later and there plaintiff went ashore and, at the captain's request, was examined by respondent's doctor, who gave plaintiff a written report, identified by him and in evidence, stating that he had contusions of the first and second fingers of the left hand, no fracture; "The contusion of the right foot is not much. It will be best in treating the fingers that the man don't work for three days with the hand." He remained on shore some time. He testified that he went to a place where he had "some drinks" and that he returned to the ship with a note from the proprietress of a restaurant asking that the captain put him in funds to pay her bill of 30 kroners. The captain testified that, before landing at Copenhagen, he had noticed that plaintiff's hand was painted with iodine and that he instructed him to go to the company's doctor and report back. The captain also testified that on the evening of plaintiff's return to the ship when he brought to him the note requesting the payment of money for the restaurant keeper, plaintiff "was bleeding from the mouth, and his jaw was swollen." These were injuries the captain had not observed in the morning and the doctor had not found on his examination; obviously they were inflicted on shore. The captain said he declined to give plaintiff the amount because it was more than was owing to him. The ship sailed from Copenhagen the next morning, January 29th, and arrived at Gdynia, Poland, on the morning of the 30th, when plaintiff informed the captain that he thought his jaw was broken; the captain then directed that he be taken to a hospital. At the hospital he was X-rayed and put to bed. He testified that plaster casts were applied to his head and leg and he was put "on fracture boards" for his back. The plaster casts which he says were applied to his head were, we assume, required by the condition of his jaw described by the captain. The ship returned without plaintiff. Subsequently, respondents arranged for his discharge from the hospital and his return on another of their vessels. When the vessel on which he returned arrived at Jersey City, March 18, 1937, he went to the company's office and reported to respondents' agent at the latter's request. Plaintiff testified he said to the agent, "I would like to get what money I have coming to me and go to a hospital. I'm very sick." The agent sent him to the Marine Hospital where X-rays were again taken. At that time the agent paid him $15 because he said he had no money; the next day he received $10, and the day after, $3; for each payment he signed a simple receipt. He testified that he thought he had three months' wages due him though he must have been mistaken about that because, by an itemized voucher in the record, he had acknowledged the receipt at Gdynia of his wages in full to February 8th. The voyage for which he engaged ended March 5th. During the trial he denied that he had made any claim to the agent for injury, asking only for wages. Respondents' evidence is that he also claimed for injury and was told that the only injury that they believed he had sustained on board was the trivial injury to the fingers reported by the Copenhagen doctor.

On March 24, 1937, in the respondents' office, he signed a formal release of all claims; he read the release which was witnessed by two subscribing witnesses and bears a notary's certificate of acknowledgment. Respondents had offered to settle all claims for $100, less the $28 which they had advanced to him, as has been stated, on and after March 18th. He testified that the company's agent said to him, "If you don't sign here and take your money and go to Chicago, I'm going to have you put in jail." He said he had been drinking and had been taking "vernal [veronal?] pills." Asked at the trial how he was "feeling at that time," he replied, "I was sick. I said, 'Give me the money' and he wrote it out and said, 'You take this over to 5 Broadway.'" The agent who took his release did not pay him but gave him the release and directed him to take it to the company's office in New York where the cashier would make payment. He went there and "handed this paper to a man in the office and he tore it open and he handed me back a piece of paper and I signed it, and gave it back to him and he gave me $72." He returned "to Hudson and Jay [Marine Hospital] to get [his] discharge" and then came to Philadelphia.

His own testimony shows that he had been injured a number of times, sometimes on ships, sometimes in fights. For some of these injuries he received compensation and executed releases and was therefore not unfamiliar with such instruments. For one claim "around April 2nd, 1932," he said he received $4,500. At the time this suit was tried, he had pending an action against the Southern Steamship Company to recover for injuries received in August, 1935. He denied that he claimed in the present suit for the same injuries for which he was claiming in the suit against the Southern Company, but, when confronted with it, admitted his signature to the statement of claim which contained an averment, inter alia, for injury to back and spine. In the present suit he also claimed for injury to the back and spine. The court in banc said: "The testimony produced by the plaintiff is entirely unreliable. He was aware of the attitude taken by the defendant toward his alleged claim. On three different occasions, he accepted money from the agent of the defendant and when he asked for what he claimed was due him, an offer was made him by the agent for the defendant. Showing some reluctance about accepting it, he was told to go home, think it over and come back the next day. This he did. It seems hard to believe that when he knew he was returning for the purpose of adjusting his claim with the agent of the defendant, he would fortify himself with drink and sedatives. We must consider the other statement that he was forced to sign the release under threat of arrest, and we furthermore must not forget that on at least three prior occasions, he had signed releases and was aware therefore of their import. Furthermore, in considering his credibility, we must not forget that when questioned whether in 1935 (two years before) he had made a claim against the Southern Steamship Company for an injury to his back, his answer was No. The statement of claim presented in that case was put in evidence and a reading of Paragraph 8 thereof shows his statement: 'He was violently wounded, jarred and generally shaken about the head, body, spine, arms, legs and feet, and particularly his face and jaw were swollen and discolored, several teeth knocked out and several ribs broken.'

"When one considers that the major portion of his claim of injuries is that he has arthritis from the injury received to his spine, one can see how doubtful this claim for injuries is. . . .

"It therefore seems clear that the condition from which this man alleges he is now suffering was present in 1935. It may well be that the arthritic condition has developed, but the same fracture existed in both X-rays."

The evidence offered by defendants would support a finding that the only injuries received "in the course of his employment," or in the service of the ship, were those which were referred to by the Copenhagen doctor in his report.

Instead of filing his libel in admiralty, where his case would have been tried by a judge without a jury, or of suing at law in the District Court, plaintiff, as he had the right to do sued in the state court to assert a common-law remedy with trial by jury. It was the duty of the state court to apply the federal law creating the...