Murphy v. American Barge Line Co.

• Decision Date: 02 August 1948
• Docket Number: No. 9599.,9599.
• Citation: Murphy v. American Barge Line Co., 169 F.2d 61, 1949 AMC 158 (3rd Cir. 1948)
• Parties: MURPHY v. AMERICAN BARGE LINE CO.
• Court: U.S. Court of Appeals — Third Circuit

169 F.2d 61 (1948)

MURPHY v.AMERICAN BARGE LINE CO.

No. 9599.

Circuit Court of Appeals, Third Circuit.

Argued June 11, 1948.

Decided August 2, 1948.

Writ of Certiorari Denied November 8, 1948.

Lucian Y. Ray, of Cleveland, Ohio (Alter, Wright & Barron, of Pittsburgh, Pa., and Leckie, McCreary, Schlitz & Hinslea, of Cleveland, Ohio, on the brief), for appellant.

Hymen Schlesinger, of Pittsburgh, Pa. (Schlesinger & Schlesinger, of Pittsburgh, Pa., on the brief), for appellee.

Before Biggs, Goodrich, and Kalodner, Circuit Judges.

Writ of Certiorari Denied November 8, 1948.See69 S.Ct. 133.

GOODRICH, Circuit Judge.

The libellant, Otto J. Murphy, recovered judgment for maintenance and cure in an action brought in admiralty in the District Court for the Western District of Pennsylvania.The respondent, Murphy's former employer, attacks the correctness of the judgment on two grounds.One raises the question of the sufficiency of the evidence to establish the fact of the accident and injury; the second presents a question of law.

We find no difficulty with the fact question.The respondent does not seriously contest the fact that Murphy had a fall upon the deck of one of the barges being towed by it on the night of December 1, 1946.The mate who testified for the respondent said he did not see Murphy fall, but did see him get up.Respondent presses the point that the evidence is insufficient to support a finding that Murphy suffered the back injuries he claimed to have sustained.There is some conflict in the testimony, as is usual in such cases.But both the libellant's story and the medical testimony are entirely sufficient to establish the case for the libellant and the Trial Judge found in his favor.Respondent has made an appeal to common knowledge with regard to what happens to people who suffer back injuries of the type claimed here.We do not agree with the generalization made but, in any event, we think that it would be foolish of us to substitute any notions we have on this subject for the medical testimony which is in the case.That testimony need not be recited.It is credible, it convinced the Trial Judge, and we are satisfied with the conclusion reached.

The legal point is exceedingly interesting and some phases of it are novel.Murphy was discharged from the ship's service shortly after the accident.At the time of his discharge he was given a slip, or ticket, by the ship's officer which entitled him to receive medical treatment at a Marine Hospital.He went to the United States Public Health Service Relief Station at Gallipolis, Ohio, four miles from his home at Henderson, West Virginia.The first visit was the day after his discharge, but no one was there to give him service.When he returned nine days later the physician in charge made an external examination, but took no X-ray pictures.He strapped Murphy's back with adhesive tape.Murphy went back again for further consultation and on this occasion the physician advised him to go to the United States Marine Hospital at Pittsburgh, Pennsylvania, telling Murphy that he had done all that he could do for him at Gallipolis.The doctor gave to Murphy at that time a written ticket, or order, which the physician assured Murphy would entitle him to admission to this hospital.Murphy objected to the trip because he said that the pain in his back was too great.He came back at another time to the same physician at Gallipolis and was given the same advice and made the same reply.It appears that there is a Marine Ward in the hospital at Gallipolis, where the doctor's office was situated, but it does not appear why Murphy was not offered treatment in this hospital.

The respondent says that Murphy is not entitled to any award for maintenance due to his failure to go from Gallipolis to the Marine Hospital in Pittsburgh.It says that this failure amounted to a refusal of treatment and that a seaman who refuses treatment is not entitled to an allowance for maintenance and cure.

Decisions hold that an offer of hospital services is a fulfilment of the shipowner's obligation to furnish maintenance and cure to an injured seaman.The Bouker No. 2, 2 Cir., 1917, 241 F. 831;United States v. Loyola, 9 Cir., 1947, 161 F.2d 126;June v. Pan-American Petroleum & Transport Co., 5 Cir., 1928, 25 F.2d 457, 458.

For the purpose of the discussion here we accept the rule of law there announced and applied.It is a logical application of the principles controlling the claim litigated here.When we speak of maintenance and cure in the admiralty law we really mean maintenance and care because, of course, the employer is not held at his peril to effect a cure.Loverich v. Warner Co., 3 Cir., 1941, 118 F.2d 690, certiorari denied 1941, 313 U.S. 577, 61 S. Ct. 1104, 85 L.Ed. 1535;Calmor S. S. Corp. v. Taylor, 1938, 303 U.S. 525, 58 S.Ct. 651, 82 L.Ed. 993.Hospitalization affords both maintenance and medical care and, therefore, while receiving it, the seaman is having the relief he is entitled to furnished in kind instead of being paid for its cost.We suppose that it would be the same thing if the shipowner maintained an establishment for the benefit of seamen where they could receive maintenance and such care as they needed without having to pay out their own funds therefor.¹Furthermore, we think that there is no burden on the shipowner to show that such hospitalization would have cured the injury which the seaman suffered in the service of the ship.As pointed out, the duty of maintenance and...