Muise v. Abbott

• Decision Date: 09 April 1947
• Docket Number: No. 4190.,4190.
• Citation: 160 F.2d 590
• Parties: MUISE v. ABBOTT.
• Court: U.S. Court of Appeals — First Circuit

160 F.2d 590 (1947)

MUISE v. ABBOTT.

No. 4190.

Circuit Court of Appeals, First Circuit.

April 9, 1947.

A. L. Kaplan, of Boston, Mass., for appellant.

Sumner H. Babcock, of Boston, Mass. (Seymour P. Edgerton, Austin S. Ashley, and Bingham, Dana & Gould, all of Boston, Mass., of counsel), for appellee.

Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.

WOODBURY, Circuit Judge.

This is an appeal from a decree in a cause civil and maritime brought by a seaman for maintenance care and cure.¹ The question presented is whether the appellant has already been paid the amounts he here seeks to recover, either in full or in part, by the payment to him of $5,500 in settlement of an action at law which he brought against a third party to recover damages for the same personal injuries alleged to have given rise to the liability asserted in this libel. The facts necessary for our decision can be very briefly stated.

The libellant-appellant, a fisherman and member of the crew of the fishing schooner American of which the respondent-appellee was the managing owner, was seriously injured in a fall into an unguarded hole of some sort in a wharf to which the American was tied up while discharging a cargo of fish. At the time of this accident the appellant was returning to his ship for the night after an authorized evening ashore. He subsequently brought an action at law sounding in tort against the owner of the wharf, and this action was settled in advance of trial by the payment of $5,500 to the plaintiff therein, the appellant here, and the execution by him of a general release discharging the wharf owner in sweeping terms from all claims and demands of every nature, present and prospective, known and unknown, arising out of the accident. A judgment for the plaintiff in conformity with the agreement of the parties was then entered in that action, and thereupon the appellant brought the instant libel for maintenance and care.

The appellant contends that his injury gave rise to two separate and distinct causes of action; a right as an ordinary individual to proceed at law against the owner of the wharf for the latter's negligence, and a right as a seaman to proceed in admiralty against his employer for maintenance and care, with the result that his recovery in his action at law can have no effect whatever upon his right to recover here. Therefore he says that in this libel he is entitled to recover the cost of his medical and hospital care which he says amounted to $1,039.78, plus the fair value of his maintenance during the period of his convalescence after his discharge from the hospital, which it is stipulated amounted to $910, or $1,949.78, without any diminution at all on account of his previous recovery against the wharf owner. The respondent on the other hand takes the position that since the cost of the appellant's maintenance and care was a proper element of damage in his action at law against the owner of the wharf, and not only could have been but also in fact was included in the amount paid him in settlement of that action, the appellant has already been fully compensated for his entire loss and therefore can recover nothing in this libel against his former employer.²

The court below did not adopt either of these contentions. It held that the release and judgment in the appellant's action at law against the wharf owner did not prevent him from maintaining the instant libel, but that as libellant herein he could recover only to the extent that he had not already been compensated in that action at law. That is to say, the court below held that the appellant was entitled to be fully compensated once, but only once, for his injuries, and that whether or not he had obtained full compensation from the tort-feasor whose negligence caused his injury was a question of fact. Then it found that in fact the entire cost of the appellant's care amounting to $1,039.78 had been included in the $5,500 paid in settlement of the action at law, and that $408.16 of his stipulated maintenance of $910 had also been included therein. The basis for these findings was a certain letter written by appellant's counsel to counsel for the wharf owner proposing settlement of the action at law in which the appellant's medical and hospital expenses were specifically set out as $1,039.78, his earnings for the year preceding the accident as $2640 plus approximately $300 for food consumed, and his earnings lost by reason of his injury as approximately $4,000. The court below arrived at $408.16 as the amount of the appellant's maintenance included in the $5,500 paid in settlement of his action at law by determining the percentage of the appellant's gross wages for the year preceding the accident which had been paid in food (10.204%) and then taking the same percentage of the gross wages alleged to have been lost by reason of the accident — the court's assumption being that the ratio of wages paid in food to wages paid in money would remain constant. Therefore it gave the appellant judgment in the amount of the difference between $910 and...