Repsholdt v. United States

• Decision Date: 08 September 1953
• Docket Number: No. 10861,10862.,10861
• Citation: 205 F.2d 852
• Parties: REPSHOLDT v. UNITED STATES (two cases).
• Court: U.S. Court of Appeals — Seventh Circuit

205 F.2d 852 (1953)

REPSHOLDT v. UNITED STATES (two cases).

Nos. 10861, 10862.

United States Court of Appeals Seventh Circuit.

July 17, 1953.

As Amended on Denial of Rehearing September 8, 1953.

Robert F. Doyle and Marion Hannigan, Chicago, Ill., for Repsholdt.

Stuart B. Bradley, Chicago, Ill., Tom L. Yates, Otto Kerner, Jr., U. S. Atty., Chicago, Ill., Seago, Pipin, Bradley & Vetter, Chicago, Ill., for the United States.

Before FINNEGAN, LINDLEY and SWAIM, Circuit Judges.

FINNEGAN, Circuit Judge.

This is a libel in person and in admiralty, wherein libelant seeks to recover damages under the Suits in Admiralty Act, 46 U.S.C.A. § 742, for injuries alleged to have been received by him aboard ship as a result of respondent's negligence and, in addition, to have allowed him wages, maintenance and care as provided in the Jones Act, 46 U.S.C.A. § 688.

In count one of his libel he alleges "That on or about March 6, 1948 * * *, while a storm was in progress, libelant, in the performance of his duties, proceeded to secure the gear which was under his supervision, while going to the galley to secure the gear therein as aforesaid, libelant was forced to and did walk through water that had accumulated in libelant's quarters and in the passageway between libelant's quarters and the galley, and in so doing libelant's shoes and trousers became wet. While going up the stairs leading to the galley, libelant, by reason of his wet apparel and the wet galley steps, slipped and fell on the galley steps, causing an injury to his legs and knees; libelant pulled himself up and proceeded to the galley where he again slipped and fell because of the wet condition of his wearing apparel and the galley floor, again injuring his legs and knees."

He charges respondent with negligence in: (1) allowing hatches and portholes to remain open; (2) failing to notify him in advance that the vessel was heading into a storm; (3) failing to provide adequate intercommunication facilities aboard ship to notify him that a storm was coming up; (4) failing to maintain and provide a seaworthy vessel in that it did not contain adequate forecasting equipment and adequate radio facilities to foretell weather conditions and notify him of an approaching storm; (5) failing to maintain adequate medical personnel and equipment to care for his injury; (6) failing to maintain a seaworthy vessel; (7) failing to provide a seaworthy vessel in that the quarters provided libelant did not contain adequate and proper drainage facilities; and (8) failing to maintain and provide a seaworthy vessel in that the drainage facilities provided in libelant's quarters were not properly maintained so as to allow water to drain off the floor of libelant's quarters.

On March 4, 1953, the trial court entered a decree wherein it awarded the sum of One Thousand Dollars damages for injury, pain and suffering, loss of earnings and all other items of loss or expenses recoverable under the Jones Act, and the sum of Six Hundred Dollars for maintenance and cure under maritime law. Libelant appeals from that decree and respondent cross-appeals. Libelant insists that he is entitled to $135,360 and respondent says he did not fall on the vessel and injure himself and that he is entitled to no recovery.

Libelant, a seaman, off and on, since 1912, was the chief cook on T. 2 Tanker Fort Stephenson, being employed in such capacity in February 1948. In that year, while he was a member of the crew, the ship made a coastwise voyage, from Port Amboy, New York, to Port Arthur, Texas, and return to Providence, Rhode Island. The day before reaching port at Providence, the alleged injury, about which he complains, occurred. He occupied an outside two-bunk cabin by himself. It was about six by nine feet in dimensions, and had a porthole equipped with a heavy glass cover about 2½ inches in thickness. The porthole cover could be opened or closed and fastened with clamps to keep out sea water in rough weather. About eight o'clock on the evening of March 4th, 1948, there was a rough northeasterly sea with heavy swells. The sea water was shipping over the main deck of the ship fore and aft. By midnight the sea had moderated somewhat, but there was still rather a heavy northeasterly sea and swells.

About eleven o'clock that night, libelant was in the messroom having coffee and watching a card game. He then visited with the night cook in the latter's quarters for about a half hour, where he was told that his cabin deck was flooded. He then went to his cabin and found the floor covered with about six inches of water. Aided by a fellow crew member, named Sloane, he picked up his gear.

The porthole cover was open, according to Sloane's evidence and it was unfastened, according to that of the libelant, thus allowing sea water to enter the cabin.

Libelant testified that while picking up his gear he fell forward on his right knee in his cabin; that he sat on his bunk and then went to bed; that he got up later to go to the galley and while on his way to the galley he fell on the same knee on the stairway in the companionway. He said his knee caused him pain. "I imagine I hurt myself a little. I slipped there in the water, my shoes were wet."

He further stated that he reported the injury to the master of the ship and also to the first mate the next morning. These officers said no such injury was reported by libelant; that he was a member of the crew and served aboard ship until the end of the voyage on March 6, 1948; that they saw him, the day following the alleged falls, walk through the payoff line and his appearance and manner of walking were the same as at all previous times during the voyage, although at the trial, libelant testified that his knee was swollen to ten inches in diameter.

When he left the ship at Providence, Rhode Island, he took a train to New York where he stayed over night and he then went by train to his home at Oshkosh, Wisconsin.

He did not ask for a hospital ticket before leaving the ship, nor did he seek any medical attention at Providence, New York, Chicago or Milwaukee in train stop-overs at those places, although marine hospital service was available to him in all those cities, which libelant admitted he knew. He said he telephoned to the Marine Hospital Clinic in New York, on Sunday, but no one answered. He knew that hospital was open twenty-four hours every day.

Libelant remained in Oshkosh from March 8 to April 19, 1948.

Libelant further testified that on April 19, 1948, his knee gave way while he was descending the back steps of his home in Oshkosh. He was then taken to Veterans Administration Hospital, at Wood, Wisconsin. At that time he was not employed by respondent.

In February, 1951, long after his service on the Fort Stephenson, libelant slipped and fell on an icy sidewalk while employed as a civil service janitor at the Veterans Administration Hospital, at Wood, Wisconsin, injuring his knee. He made application for compensation for an accidental injury and has been receiving United States Employees Compensation in the sum of $119 per month since that accident.

The District Court found that: "the evidence is insufficient to show any causal connection between the fall and injury which occurred aboard the tanker, Fort Stephenson, and the fall which occurred on April 19, 1948, or the fall which occurred in February, 1951."

We think the record warrants that finding. We shall, therefore, confine our discussion to the claimed injury on the ship in March of 1948, and the question of maintenance and cure.

When libelant entered his cabin knowing of the water on the floor, he said he fell forward and landed on his right knee, and while bailing out the water, he fell again. He also testified that between the first and second falls he started to the galley, slipped on the steps "and I bruised my knee the third time — the second time." It developed that on discovery examination, he had testified that he fell on his right knee three times going up the steps and on the right knee twice in his cabin. The version of this incident which libelant told to the...