McCarthy v. American Eastern Corporation

• Decision Date: 14 June 1949
• Docket Number: No. 9797.,9797.
• Citation: 175 F.2d 727
• Parties: McCARTHY v. AMERICAN EASTERN CORPORATION.
• Court: U.S. Court of Appeals — Third Circuit

175 F.2d 727 (1949)

McCARTHY v. AMERICAN EASTERN CORPORATION.

No. 9797.

United States Court of Appeals Third Circuit.

Argued May 5, 1949.

Decided June 14, 1949.

Rehearing Denied August 16, 1949.

Charles Lakatos, Phila., Pa. (Abraham E. Freedman, Wilfred R. Lorry, Freedman, Landy & Lorry, of Philadelphia, Pa., on the brief), for appellant.

Thomas E. Byrne, Jr., Phila., Pa. (Timothy J. Mahoney, Jr., Mark D. Alspach, Krusen, Evans & Shaw, Philadelphia, Pa. on the brief), for appellee.

Before MARIS, GOODRICH and McLAUGHLIN, Circuit Judges.

MARIS, Circuit Judge.

The libellant, Jeremiah McCarthy, a seaman, has appealed from the judgment of the district court against him in a suit in admiralty for maintenance and cure and wages, which he brought against the respondent, American Eastern Corporation, the owner of the M. V. Gadsden, in whose service he was injured on June 16, 1947. The libellant had also instituted in the district court at the same time a civil action against the respondent for compensatory damages based upon the unseaworthiness of the vessel and the negligence of her master and crew. The two cases were tried together in the district court, the civil action being submitted to a jury and the suit in admiralty to the trial judge. In the civil action the jury rendered a verdict for $22,500 upon which a judgment was entered which we have today affirmed. 175 F.2d 724.

In the suit in admiralty now before us the trial judge found as a fact that during the course of the trial of the civil action the libellant proved as a part of his damages not only the monetary wage he received, but also the fact that room and board were furnished in addition to his monetary wage. The trial judge also found that the libellant in the civil action recovered damages in an amount adequate to cover not only his loss of monetary earnings but also any loss he might have had by reason of being deprived of his board and lodging in his occupation as a seaman. Concluding that to permit a recovery in the present suit for maintenance would be to award a duplication of conpensatory damages, the trial judge directed the entry of the judgment for the respondent which is the subject of the present appeal. The libellant claimed no medical expenses and he did not press his claim for wages in this admiralty suit. Upon this appeal he contends, however, that the court should have awarded him in this suit the cost of his maintenance regardless of the verdict recovered in the civil action. We think that the district court rightly held that under the circumstances here present the libellant was not entitled to an award for maintenance in this suit.

It appears from the statements of counsel at our bar that before the trial of the two suits was begun in the district court the libellant's attorney requested the trial judge to instruct counsel not to mention or refer to maintenance and cure or the fact that the libellant had instituted the present suit against the respondent to recover those items. Thereupon the trial judge did instruct counsel not to mention these matters in the hearing of the jury. The record shows that in the course of the trial the libellant proved not only the amount of his monetary wage of $185.50 per month as a member of the crew of the Gadsden but also testified that his wage included room and board in addition to the monetary amount. At the specific request of the libellant the trial judge charged the jury in the civil action that their verdict should include a sum of money sufficient to compensate the libellant for such loss of earnings as he might have sustained in the past, as well as for such loss of earnings as they should find he might sustain in the future by reason of his injuries suffered aboard the Gadsden.¹

Since the evidence established that the libellant's wages included not only cash but also room and board, it is clear that the amount of the damages which he sought from the jury in the civil action included not only the cash wages lost by reason of his injuries but also the cash value of the board and lodging which he would have received had he remained in the employ of the respondent as a seaman aboard the Gadsden. By taking steps to see that the jury did not learn that he was claiming maintenance in another suit, the one now before us, he did what he could to prevent the possibility of that fact from operating in the minds of the jury as a basis for excluding the value of board and lodging from their verdict. The libellant's present claim is for maintenance during the periods of time, aggregating 133 days, that he was not otherwise employed between the date of his discharge from the Gadsden and the date of the trial. At the agreed rate of $3.50 a day this claim would amount to $465.50. As we have seen, the libellant recovered in the civil action a verdict and judgment amounting to $22,500. It is not suggested that this amount is inadequate to indemnify him in full for his loss of wages and board and lodging, for his loss of earning power and for his pain and suffering. It is clear, therefore, that he has thereby recovered the value of the maintenance which he is claiming in the present suit.

On this appeal the libellant seeks to avoid that...