Jewell v. Ohio River Company, 18824.
| Citation | 431 F.2d 691 |
| Decision Date | 21 August 1970 |
| Docket Number | No. 18824.,18824. |
| Parties | Pearlie F. JEWELL, Petitioner, v. OHIO RIVER COMPANY, Respondent, The Honorable Gerald J. Weber, Judge of the United States District Court for the Western District of Pennsylvania, Nominal Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
Hymen Schlesinger, Pittsburgh, Pa., for petitioner.
Anthony J. Polito, Rose, Schmidt & Dixon, Pittsburgh, Pa., for respondent.
Before WINTER,* ALDISERT and GIBBONS, Circuit Judges.
In a petition for mandamus, plaintiff-petitioner seeks an order directing the district court to grant him a jury trial on an admiralty claim for maintenance and cure joined with a Jones Act (46 U.S.C. § 688 (1964)) claim for consequential damages and counsel fees for negligent refusal to furnish maintenance and cure. Mandamus is appropriate to require a district court to grant petitioner a jury trial. Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S. Ct. 894, 8 L.Ed.2d 44 (1962); Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959); Canister Co. v. Leahy, 191 F.2d 255 (3 Cir.), cert. denied, 342 U.S. 893, 72 S.Ct. 201, 96 L.Ed. 669 (1951).
Petitioner was injured in August, 1964 when, while employed as a seaman, he fell into the bottom of respondent's barge. In November, 1964, he filed separate actions in the Western District of Pennsylvania.
One (Admiralty No. 64-62) sought maintenance and cure and also sought compensatory damages and counsel fees for respondent's failure to furnish maintenance and cure. That admiralty action, heard by a district judge without a jury, resulted in a judgment in petitioner's favor for unpaid maintenance and cure in the sum of $1,057.00. That judgment has been satisfied. In the admiralty action the district court found that libelant's claim for consequential damages for failure to pay maintenance and cure was unwarranted under the evidence.
The other (Civil No. 64-1183) alleged negligence under the Jones Act, unseaworthiness, and resulting permanent injury. In that action petitioner obtained a jury verdict against respondent for $22,533.00. The judgment on that verdict has been satisfied.
In August, 1966, eight months after the judgment in the original Jones Act case and fifteen months after the judgment in the original admiralty action, petitioner filed the suit which gives rise to this mandamus petition. He relies on Cortes v. Baltimore Insular Line, 287 U. S. 367, 53 S.Ct. 173, 77 L.Ed. 368 (1932) for the application of the Jones Act to the claim for negligent failure to furnish maintenance and cure; on Sobosle v. United States Steel Corp., 359 F.2d 7 (3 Cir. 1966) for the proposition that the respondent's duty to furnish maintenance and cure survived the original admiralty judgment; and on Fitzgerald v. United States Lines, 374 U.S. 16, 83 S. Ct. 1646, 10 L.Ed.2d 720 (1963) and Haskins v. Point Towing Company, 395 F.2d 737 (3 Cir. 1968) for the right to a single jury trial both on the claim for maintenance and cure and on the claim for consequential damages for failure to provide it.
Respondent, alleging that the duty to furnish maintenance and cure was terminated by the original admiralty judgment, moved for judgment on the pleadings. That motion was denied in the district court on May 5, 1967 and this court declined to entertain an interlocutory appeal filed pursuant to 28 U.S.C. § 1292(b) (1964).
On January 22, 1969, the district court entered an order severing the issue of respondent's ongoing obligation for maintenance and cure from the issue of negligent failure to meet that obligation, and on February 18, 1970, at pretrial, ordered that the first issue be tried non-jury.
Petitioner concedes that his...
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...rise to a separate claim for relief. See e. g. Jewell v. The Ohio River Co., 1967 A.M.C. 1724 (W.D.Pa.1966), aff'd per curiam, 431 F.2d 691 (3rd Cir. 1970) (plaintiff, who had recovered Jones Act damages for original injuries, allowed to bring second Jones Act claim for aggravation of origi......
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...for findings of fact. It may be noteworthy that such denial is unquestionably reviewable by the writ of mandamus. Jewell v. Ohio River Co., 431 F.2d 691 (3rd Cir. 1970). In each of the above situations, I believe the district court is required at least to state in the language of the partic......
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