Moyle v. National Petroleum Transport Corporation, 339.

• Decision Date: 18 July 1945
• Docket Number: No. 339.,339.
• Citation: 150 F.2d 840
• Parties: MOYLE v. NATIONAL PETROLEUM TRANSPORT CORPORATION.
• Court: U.S. Court of Appeals — Second Circuit

150 F.2d 840 (1945)

MOYLE v. NATIONAL PETROLEUM TRANSPORT CORPORATION.

No. 339.

Circuit Court of Appeals, Second Circuit.

July 18, 1945.

Reid, Cunningham & Freehill, of New York City (Frederick H. Cunningham, of New York City, of counsel), for defendant-appellant.

George J. Engelman, of New York City, for plaintiff-appellee.

Before L. HAND, AUGUSTUS N. HAND, and CLARK, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

This is an action by the plaintiff, a seaman on the defendant's S.S. Transoil, to recover maintenance and cure. He testified that he was well when he joined the ship on November 9, 1936, that he worked thereon as an oiler and later became ill with headaches, fever and continuous coughing and about five days prior to January 15, 1937, was unable to work as an oiler or to stand watch and for that reason was discharged by the First Engineer while the ship was at her dock in Buffalo. On leaving the Transoil he received from the master a certificate for hospitalization which entitled him to free treatment at the Buffalo Marine Hospital. In the afternoon of the same day he took a standby job with light work on the oil tanker Ulysses and remained on her from five to seven days. Since his condition had not improved he went to his home in Akron, New York and remained there for about three weeks under treatment by a local physician without getting any better. On February 17, 1937, he went to the Buffalo Marine Hospital and stayed there for ten days. The diagnosis of the Marine Hospital was "common cold, asthma, bronchial." While in the hospital his condition improved and he was discharged on February 27, with the notation on the hospital records of "N.F.H.N.," i.e., no further hospitalization necessary, and again went home. His asthma, however, returned in a few days and on April 6th, he again went to the hospital from which he was discharged on April 13 at his own request, with the notation "N.F.H.N." and an entry indicating that his asthmatic condition was unchanged. He then went back home and remained there for about a month. Thereafter, in the hope of benefiting from a change of climate he and his wife went south, joined a travelling road show and obtained a concession from it to conduct various games of chance as a means of support. This employment lasted until November 1937. After that he went to Jacksonville and spent several months there and in February 1938 came to New York and attended Bellevue Hospital as an outpatient, where he was examined and treated for asthma. In the spring of 1938 he went with another road show but in the fall came back to New York where he went on relief and continued on relief until about November 1942. During this period of about four years he was from time to time treated for asthmatic trouble for short periods at Bellevue and also at the Flower and Post Graduate Hospitals. About November 1942 his wife secured a job in a defense plant at Oneonta, New York. They both went there to live during the winter and for 27 days he was employed in driving army trucks to Syracuse. As the cold weather in the north proved bad for his asthma he moved with his wife to Phoenix, Arizona, in the spring of 1943, where they have since lived. He was employed there for three weeks and a day in a butcher's shop and for two weeks on a government housing project. The amounts of money he received during the various periods when he was employed and the amounts received while on relief were not stated in the record.

During the periods we have mentioned his asthma continued, greatly interfered with his ability to earn a living and at best only permitted him to do light work and that only at intervals. He testified that he spent $100 per year for medicines which he took for his asthma and about $15 per year for treatment by physicians. In the records of one of the hospitals it was stated that he had been a subject of asthma for 20 years but he denied this and testified that before joining the S. S. Transoil he had but one attack some eighteen years before and was in good health up to the time that he became ill with asthma about five days before leaving the ship.

Prior to April 13, 1937, when he left the Marine Hospital at his own request he had been at home and unemployed since leaving the Ulysses for periods aggregating 72 days. The treatment he received in the Marine Hospital and the hospitals he subsequently attended was given free. Under the court's charge the plaintiff was entitled to recover maintenance for a reasonable time after he left the ship as well as expenditures for medicine and doctors' bills, but from such "reasonable time" was to be deducted periods when he was employed and also periods when he was on relief. Because of the provisions of Section 104 of the New York Social Welfare Law, Consol. Laws, c. 55, he doubtless was not obliged to deduct the period while he was on relief, but the plaintiff who alone could complain of the charge in this respect while urging the point has not appealed.

The complaint alleged that the plaintiff, while aboard the steamship, became sick, that a preexisting illness was aggravated and made more serious and that by reason thereof he became disabled in the service of said steamship. The plaintiff was the only witness testifying at the trial and on his testimony the jury rendered a verdict of $1800 for maintenance and cure on which a judgment was entered in his favor for $1,848.50 from which the defendant has appealed.

The...