Mroz v. Dravo Corporation

• Citation: 293 F. Supp. 499
• Decision Date: 15 November 1968
• Docket Number: No. 65-43.,Civ. A. No. 65-716,65-43.
• Parties: Edna MROZ, Plaintiff, v. DRAVO CORPORATION, Defendant. Edna MROZ, Libellant, v. DRAVO CORPORATION, Respondent.
• Court: U.S. District Court — Eastern District of Pennsylvania

293 F. Supp. 499

Edna MROZ, Plaintiff, v. DRAVO CORPORATION, Defendant.

Edna MROZ, Libellant, v. DRAVO CORPORATION, Respondent.

Civ. A. No. 65-716; No. 65-43.

United States District Court W. D. Pennsylvania.

November 15, 1968.

COPYRIGHT MATERIAL OMITTED

Hymen Schlesinger, Pittsburgh, Pa., for plaintiff-libellant.

Bruce R. Martin, Pittsburgh, Pa., for defendant-respondent.

OPINION AND ORDER

MARSH, District Judge.

Edna Mroz, the plaintiff, filed a complaint at Civil Action No. 65-716, setting forth three counts for damages under the Jones Act and maritime law. At No. 65-43 in Admiralty, she filed a libel and complaint for maintenance and cure for the illness and injuries set forth in the three counts at the civil action. At a hearing in the admiralty action held on May 31, 1966, by an associate Judge, on motion of the defendant, and over the objection of the plaintiff, the civil action and admiralty action were consolidated for trial.¹

With respect to the third count of the complaint, it was determined by court and counsel that a preliminary trial was required to determine whether the plaintiff-seaman on May 26, 1965, was a member of the crew of the Motor Vessel Freedom² and whether that motor vessel was in navigation on that date.³

Preliminary Trial

At the preliminary trial the plaintiff, who had been employed by defendant for many years, contended that on May 26, 1965, the defendant's motor vessel Freedom was a vessel in navigation and that plaintiff was a member of its crew. It appeared that the Freedom was tied to defendant's landing dock in the Ohio River because of a strike by the masters, mates, pilots and engineers, or their respective Unions. This strike started on March 31, 1965, and ended in the middle of June, 1965. In May, the defendant called back to work certain seamen, including the plaintiff, members of the National Maritime Union, who were not on strike. Certain seamen were painting the kitchen of the Freedom; they ate their meals on board and some slept on board. The plaintiff cooked and performed maid service; she worked for 17 days (T., p. 17). On May 26, 1965, she was hurt on board in an accident for which she claims damages in the third count of the complaint and for maintenance and cure in the admiralty action.

At the conclusion of the plaintiff's evidence, the defendant moved for a directed verdict which was denied. As in cases where the facts pertaining to negligence or contributory negligence are undisputed, it was our opinion that the evidence in this trial was susceptible of inconsistent inferences. Therefore, the case was submitted to the jury. The jury found that on May 26, 1965, the Freedom was a vessel in navigation and that the plaintiff was a member of its crew. We think the findings were justified; the defendant thinks otherwise.

The defendant timely filed a motion for judgment n.o.v. which was denied. As we view the problem, it is only in a very clear case in which the evidence is such that there is no room for fair and reasonable men to reach different conclusions on the issues presented, that the court takes questions of fact from the jury. This was not such a case. It appears that each case of this type has been decided on its own peculiar facts, and ordinarily no one feature pertaining to the status of the vessel is determinative. The evidence pertaining to whether the defendant's vessel was in navigation and whether the plaintiff-seaman was a member of its crew contained factual elements such as to make them ones for the jury to consider under appropriate instructions as to the various relevant factors under the law. No objections were made to the instructions by either party.

Where, as here, the evidence is susceptible of inconsistent inferences, jury questions are presented.⁴ It was the function of the jury to resolve the inconsistencies, which was done. In our opinion, the plaintiff was entitled to a trial on the merits on the third count of the complaint and for maintenance and cure, for she has been totally incapacitated since the accident of May 26, 1965.

The Trial

At the trial on the merits, plaintiff proved that she had developed emphysema while employed by defendant long prior to July 6, 1962. Her claim on the first count was limited to damages for aggravation of this disease caused within the three years prior to filing her complaint on July 6, 1965 (T., p. 6; charge, T., pp. 358-360). Her damages for diminution of earning power were limited to the period following her injuries sustained in a fall on May 26, 1965, involved in the third count, from which injuries she had not recovered at time of trial (charge, T., p. 381). The jury was instructed that she was not entitled to maintenance and cure prior to May 26, 1965⁵ (charge, T., p. 387).

The jury returned verdicts in favor of the plaintiff in the amount of $18,000⁶ in the civil action and $7,200 in the admiralty action. On March 1, 1968, judgments were entered in favor of plaintiff and against the defendant in those amounts together with costs.

At the trial, after argument (T., pp. 226-237), the defendant's motion for a directed verdict on the second count of the complaint, which alleged an accident occurring in March, 1961, was granted (T., p. 237).

On March 11, 1968, the plaintiff timely filed and served a motion for a new trial. On the same day, the defendant timely filed a motion for judgment in accordance with the motion for directed verdict on the remaining counts (counts 1 and 3) in Civil Action No. 65-716. In our opinion these motions should be denied.

The defendant also filed a separate motion for a new trial in Admiralty No. 65-43, and a separate motion for a new trial as to the remaining counts in Civil Action No. 65-716. The plaintiff moved to strike the defendant's post-trial motions because untimely served. We think plaintiff's motion to strike the defendant's motions for new trials should be granted. Rule 59(b), Fed.R.Civ.P.

Defendant's Motion for Judgment N.O.V. on Counts 1 and 3.

At the conclusion of plaintiff's evidence at the trial on the merits, the defendant moved for a directed verdict on all counts. The court granted the motion as to Count 2. The defendant rested without calling any witnesses. The defendant moved for judgment n.o.v. on the remaining counts.

In determining whether this motion should be granted, the court is bound to accept the evidence and all reasonable inferences therefrom in the light most favorable to the plaintiff, Tennant v. Peoria & P. U. R. Co., 321 U.S. 29, 35, 64 S.Ct. 409, 88 L.Ed. 520 (1944), and draw all reasonable inferences against the defendant, Makowsky v. Povlick, 262 F.2d 13 (3d Cir.1959). In our opinion, the evidence justified the verdict in favor of the plaintiff in the civil action.

At the trial it appeared that Mrs. Mroz, a long-time maid and cook in the employ of the defendant aboard its river towboats, developed emphysema prior to 1962. Suffering from shortness of breath, dyspnea, and weakness, orthopnea and paroxysmal coughing, and pain in the mid and low back. On February 13, 1962, she was admitted to the United States Public Health Hospital in Baltimore, where she was treated for pulmonary emphysema. Improved, she was discharged on March 8, 1962 as fit for duty, with a discharge diagnosis, inter alia, of pulmonary emphysema. Plaintiff gave the fit for duty slip to Dr. Marshall, the defendant's medical examiner in charge of its medical department, who examined her (T., pp. 47-48). Notwithstanding his knowledge of her emphysema, he certified plaintiff back to work as a cook and maid on board defendant's diesel motor vessels. In these capacities, she continued to work on these vessels until the spring of 1965. Throughout this period she was on medication and for portions thereof was an out-patient of the United States Public Health Service in Pittsburgh.

The jury could have found that it was negligence on the part of the defendant's medical examiner to permit her to work on defendant's diesel motor vessels where she was continually forced to breathe noxious fumes and smoke which permeated those boats at times during the night and day (T., pp. 23, 49, 51-52, 135-136, 141-145, 160-161, 170, 176-179, 202). The vessels, including the bedrooms of the cook and maid were frequently filled with diesel fumes and smoke, and on some of the boats leaks had developed in the exhaust pipes which increased the fumes and smoke inside (T., pp. 176-179, 202). In addition, it was undisputed that the captains and the crew of the diesel vessels knew of plaintiff's emphysema and were aware that she was frequently short of breath and in a weakened condition (T., pp. 48-49, 182, 200); that at times she could not do her work and her fellow seamen had to help her do the work (T., pp. 49, 180-181, 201). The jury could have found that it was negligence on the part of the captains to permit her to work on their vessels in her emphysematous and weakened condition. Unquestionably, a master has paternal responsibilities to the members of his crew. The defendant, through its captains and doctor, occupies a position of guardianship to seamen as the wards of the admiralty. Spellman v. American Barge Line Co., 176 F.2d 716, 719 (3d Cir. 1949).

From the evidence the jury could reasonably have found that the irritating gases to which she was regularly exposed from March, 1962, to the spring of 1965, and the occasional damp and cold weather in the boats, aggravated her condition. There was undisputed medical testimony that the fumes and smoke had a continuous traumatic effect on plaintiff's diseased lungs (T., pp. 135-136, 141, 145); that they were dangerous to her health (T., p. 145); that they aggravated her emphysematous condition (T., pp. 23, 135-136); and that the disease could have been arrested if she had not been so exposed (T., p. 168). The jury could have concluded that defendant had assigned her duties which were beyond her capacity, and that...