Neville v. American Barge Line Company, 13012.

• Decision Date: 03 February 1960
• Docket Number: No. 13012.,13012.
• Citation: 276 F.2d 117
• Parties: Beulah L. NEVILLE, Amended to Beulah L. Neville Garlinger, Appellee, v. AMERICAN BARGE LINE COMPANY, Amended to American Commercial Barge Line Company, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

276 F.2d 117 (1960)

Beulah L. NEVILLE, Amended to Beulah L. Neville Garlinger, Appellee, v. AMERICAN BARGE LINE COMPANY, Amended to American Commercial Barge Line Company, Appellant.

No. 13012.

United States Court of Appeals Third Circuit.

Argued December 11, 1959.

Decided February 3, 1960.

Rehearing Denied April 12, 1960.

Clyde A. Armstrong, Pittsburgh, Pa. (Thorp, Reed & Armstrong, Pittsburgh, Pa., on the brief), for appellant.

Hymen Schlesinger, Pittsburgh, Pa., for appellee.

Before KALODNER, STALEY and HASTIE, Circuit Judges.

HASTIE, Circuit Judge.

Pleading diversity of citizenship, appellee, a member of a ship's crew, has sued the shipowner on the civil side of the district court for money allegedly due for maintenance and cure over a period of years since a disabling shipboard injury. In addition, the complaint asserts that appellee is entitled to consequential damages said to have resulted from the failure of appellant to provide maintenance and cure after notice and demand for such assistance.

In 1950, while serving as a laundress on a river boat, appellee so severely injured two fingers of her left hand that they had to be amputated. Atrophy of muscles of the left arm and shoulder followed. A suit founded on this injury resulted in an award of maintenance and cure until December 4, 1951, the date the trial was concluded. Neville v. American Barge Line Co., D.C.W.D.Pa.1952, 105 F.Supp. 408. There was also a trial finding that "up to the date of the conclusion of the trial, December 4, 1951, the libellant had not reached the point in her recovery where care and further treatment would not benefit her". 105 F.Supp. at page 411.

After the award in the first action no money was paid the injured woman for maintenance and cure owed after December 4, 1951. Accordingly, she filed the present suit. At the trial in November 1958 a jury awarded appellee $15,336. for maintenance and cure at an agreed rate of $6. per day from December 4, 1951 until the time of trial and $10,000. for consequential damage suffered as a result of the wrongful withholding of money owed for maintenance and cure. A motion for judgment notwithstanding the verdict or for a new trial was denied. This appeal followed.

We first consider the allowance of $15,336. for maintenance and cure for the entire period between the two trials. The principal question on this phase of the case is whether there was competent evidence justifying a conclusion that at the time of the 1958 trial appellee still had not achieved as complete a recovery as indicated treatment would provide.

Appellant relies upon medical evidence, including hospital records, indicating that at the conclusion of a period of hospitalization at a United States Public Health Service facility at Cleveland, Ohio, late in 1952, a maximum feasible cure had been accomplished. There is also evidence of subsequent hospitalization at the Baltimore Marine Hospital in 1953 with terminal records indicating that further treatment would not improve the patient's condition. On the other hand, there is evidence of helpful treatment in 1957 and 1958. Physicians who examined appellee recently for the purpose of this litigation testified that part of her trouble was and had been "conversion hysteria", a neurosis directed toward the inability to use her left arm and hand, which could be treated successfully and required psychiatric care and rehabilitation over a period estimated at two years.

We have carefully considered all the medical testimony and the various questions raised concerning the competency of particular items. We are satisfied that there was sufficient competent testimony to go to the jury on the question when, if at all, appellee had reached a point of maximum cure. The court's instructions on this were clear and eminently fair.

Separately, appellant argues that it was error to allow maintenance and cure for a period from 1951 to 1954 when plaintiff was living with her husband who was regularly employed. But there was evidence that plaintiff had to borrow or otherwise obtain money for food and medicines from sources other than her husband. Moreover, on this point the court charged, with the consent of both parties, that "plaintiff may not recover for maintenance and cure without proof of reasonable expenses incurred or obligation created for such maintenance * * *." We find no error prejudicial to the defense in the court's handling of this question. On the entire record the allowance of the full sum of $15,336. for maintenance and cure must stand.

Different questions are raised by the award of $10,000. for damages said to have resulted from the wrongful withholding of money due appellee for maintenance and cure. At the trial the theory of this claim was stated to the court by counsel for appellee as follows:

"Dr. Zuck said that she should have been given psychotherapy at the time she was discharged from the Baltimore Marine Hospital in March or April of 1954, and had she been given such treatment, in his opinion she would have made recovery and been able to go back to work within two years, and that if she is given it now she will be able to return to gainful, useful work within two years from the present time; therefore, I am claiming for the period, loss of wages represented by the time she would have recovered, namely March or April of 1956 until the time when she may recover if treatment is instituted presently, which will be two years from now, November of 1960."

Counsel also indicated that the claim included pain and suffering during whatever postponement of recovery had resulted from appellant's failure to provide maintenance and cure. The court submitted this theory of consequential damage to the jury, saying:

"If you find that the defendant failed in its obligation to give the plaintiff maintenance and cure, and as a consequence of her not having the money to which she was entitled that her injury was prolonged, then we come to what I call the second cause of action. That is, in those instances the defendant must pay the damages consequent upon the prolongation of that illness or injury."

This court has held that such consequential damages are recoverable. Sims v. United States of America War Shipping Administration, 3 Cir., 1951, 186 F.2d 972. Accord, Murphy v. Light, 5 Cir., 1958, 257 F.2d 323....