Kossick v. United Fruit Company
| Citation | 275 F.2d 500 |
| Decision Date | 23 February 1960 |
| Docket Number | No. 65,Docket 25771.,65 |
| Parties | John M. KOSSICK, Plaintiff-Appellant, v. UNITED FRUIT COMPANY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Jacob Rassner, New York City (Thomas F. Frawley, New York City, on the brief), for plaintiff-appellant.
Eugene Underwood, New York City (Francis I. Fallon and Burlingham, Hupper & Kennedy, New York City, on the brief), for defendant-appellee.
Before MAGRUDER, MEDINA and FRIENDLY, Circuit Judges.
Appeal is here taken from an order of the United States District Court for the Southern District of New York dismissing an amended complaint which appellant filed against United Fruit Company. 166 F.Supp. 571. It was alleged that appellant was working as chief steward on a vessel belonging to the United Fruit Co.; that while so working he suffered an illness which was not claimed to be attributable to any negligence or breach of duty by the defendant; that the shipowner had a maritime obligation to supply the seaman with "maintenance and cure"; that appellant had engaged the services of a private physician to treat his illness, but that the shipowner wanted the seaman to be treated free of charge at a United States Public Health Service Hospital at Staten Island, New York; that United Fruit Co. agreed, on or before August 28, 1950, that if the seaman would discharge his private physician and become a patient at such United States Public Health Service Hospital, "defendant would assume all the responsibility of any improper, inadequate or incompetent treatment of whatever nature the plaintiff received at the hospital, or for the consequences of any lack of due treatment and nursing care and would compensate the plaintiff for any damages or ill effects that he would suffer by reason of his discharging Dr. Frick and in place thereof becoming a patient of the United States Marine Hospital"; that in reliance upon such agreement by the shipowner appellant did in fact become a patient of the United States Public Health Service Hospital, Staten Island, New York, on August 28, 1950; that on the same day he suffered injuries by being chemically burned about the rectum when a strong colonic was negligently administered by personnel employed by the hospital; that by reason of the foregoing the plaintiff became totally and permanently disabled and suffered damages in the amount of $250,000, for which judgment against defendant was prayed.
As the district judge observed, these allegations were bottomed "on contract and not on unseaworthiness or the Jones Act"; that this was not an oversight by the plaintiff "but rather a stratagem to resuscitate a claim time barred under the Jones Act." 166 F. Supp. at page 573.
The basis of federal jurisdiction being alleged to depend on diversity of citizenship, the district judge thought that the contract...
To continue reading
Request your trial
-
Kossick v. United Fruit Co, 96
...31, par. 2,2 there being no allegation that such agreement was evidenced by any writing, 166 F.Supp. 571. 3 The Court of Appeals affirmed. 275 F.2d 500. We brought the case here because it presented novel questions as to the interplay of state and maritime law. 363 U.S. 838, 80 S.Ct. 1613, ......
-
Kossick v. United States
...Before LUMBARD, Chief Judge, and WATERMAN and FRIENDLY, Circuit Judges. FRIENDLY, Circuit Judge: This case, like Kossick v. United Fruit Co., 275 F.2d 500 (2 Cir. 1960), rev'd 365 U.S. 731, 81 S.Ct. 886, 6 L.Ed.2d 56 (1961), concerns a serious rectal injury inflicted upon Kossick, a seaman,......
-
Government of the Virgin Islands v. Ferrer, 12905.
... ... Felipe FERRER, Appellant ... No. 12905 ... United States Court of Appeals Third Circuit ... Argued at Charlotte Amalie ... ...
-
Pierside Terminal Operators, Inc. v. M/v Floridian, Civ. A. No. 5-73-N.
..."maritime flavor". Both plaintiffs and defendant rely upon Kossick v. United Fruit Company, 166 F.Supp. 571 (S.D.N.Y.1957), aff'd, 275 F.2d 500 (2 Cir. 1960), reversed, 365 U.S. 731, 81 S.Ct. 886, 6 L.Ed.2d 56 (1961). The district court held the New York statute of frauds precluded defendan......