Robinson v. Pocahontas, Inc., 71-1256.

• Decision Date: 04 May 1973
• Docket Number: No. 71-1256.,71-1256.
• Citation: 477 F.2d 1048
• Parties: Earl E. ROBINSON, Plaintiff, Appellee, v. POCAHONTAS, INC., et al., Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

477 F.2d 1048 (1973)

Earl E. ROBINSON, Plaintiff, Appellee, v. POCAHONTAS, INC., et al., Defendants, Appellants.

No. 71-1256.

United States Court of Appeals, First Circuit.

Heard March 8, 1973.

Decided May 4, 1973.

Frank H. Handy, Jr., Boston, Mass., with whom Viola B. Kneeland, Richard B. Kydd, and Kneeland, Splane & Kydd, Boston, Mass., were on brief, for appellants.

Albert P. Zabin, Boston, Mass., with whom Schneider & Reilly, Inc., Boston, Mass., were on brief, for appellee.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

McENTEE, Circuit Judge.

This is a diversity suit in which plaintiff, Earl E. Robinson, a seaman, seeks recovery from the defendant, Sea Coast IV, Inc., the charterer of the vessel on which he was injured, for negligence under the Jones Act, 46 U.S.C. § 688 (1970), and for unseaworthiness and maintenance and cure under the general maritime law. The jury awarded the plaintiff verdicts of $45,000.00 on the Jones Act and unseaworthiness counts and $21,366.06 on the maintenance and cure claim, of which amount $10,000.00 was designated as punitive damages. On entering judgment the trial court added pre-judgment interest in the amount of $9,589.90, bringing plaintiff's total recovery to $75,955.56. Arguing that the trial court erred in a number of respects in instructing the jury and that it abused its discretion in awarding pre-judgment interest, Sea Coast appeals.

The pertinent background facts are as follows. On April 20, 1967, Robinson, while a crewman on the M/V Arthur J. Minners engaged in fishing operations in the Gulf of Mexico, slipped on some fish slime and fell, injuring his back. After receiving preliminary treatment at a small Mississippi port, Robinson was hospitalized under the care of Dr. Alleman, a company physician, in Abbeville, Louisiana. Following testing, Dr. Alleman informed the Minners' captain that he suspected plaintiff of malingering and also that he had syphilis. The captain then discharged Robinson who departed for his home in Virginia.

When Robinson arrived in Richmond on May 16, 1967, his back condition had become critical and he required immediate medical attention. After receiving this care, he was admitted to the United States Public Health Service Hospital in Baltimore where physical therapy was administered and a myelogram taken. Although this test proved to be negative, indicating no serious back injury, plaintiff's condition showed little improvement. After leaving the hospital on June 15, 1967, he placed himself under the care of a private physician in spite of Sea Coast's order that he receive all treatment through the free Public Health Service Hospital. Thereafter, his condition was diagnosed as a herniated disc and in early 1968 corrective surgery was performed at a private medical facility. While this operation and the post-operative therapy which he received alleviated his symptoms to some extent, he still did not achieve a full recovery.

In the meantime Sea Coast was demonstrating a marked reluctance to honor its obligation to pay maintenance to the plaintiff. Initially payments were withheld on the pretext that Robinson, having contracted venereal disease, had been fired for cause. When this charge was not substantiated, however, payments were made, but on an irregular basis. In late 1967, in spite of the fact that defendant was informed that Robinson would lose his home if he was not paid his back wages, defendant refused to authorize this expenditure and Robinson's mortgage was foreclosed. Finally, in 1968, when plaintiff refused to accept a settlement offer which was characterized by his counsel as "totally inadequate," all payments were terminated.

In December 1969 Robinson moved from Virginia to Baltimore and again received treatment at the Public Health Service Hospital. When his condition showed no further improvement, he returned to his private doctors and, following another myelogram, a second ruptured disc was discovered. Plaintiff's experts testified that surgical intervention would again be necessary to correct this condition.

On this background, Sea Coast first takes issue with the trial court's instruction that the jury might award plaintiff the private medical expenses he incurred if it found that he acted reasonably in seeking aid at facilities other than those of the United States Public Health Service. Specifically, Sea Coast argues that the evidence was insufficient to justify submitting this issue to the jury in view of the general rule that, absent unusual or emergency circumstances, a seaman who is ordered to receive treatment at a public marine hospital may not consult private physicians or incur additional medical expenses and expect to pass on these costs to his employer. Our review of the record, however, convinces us that this instruction was justified.¹ During plaintiff's initial stay in the marine hospital in 1967 a myelogram was taken and was reported to be negative. Thereafter, in spite of the fact that he showed little improvement, plaintiff received no treatment except physical therapy and no further diagnostic tests were made. His experience in 1969 was substantially the same. Again he was placed on a physical therapy program which did little to improve his condition and, since no myelogram was taken, his second ruptured disc was not discovered. Given these facts, it is clear that each time plaintiff entered the marine hospital his condition was incorrectly diagnosed. On this basis it is fair to infer that on both of these occasions the treatment he needed was either not tendered or would not have been forthcoming. Cf. Nunes v. Farrell Lines, Inc., 129 F.Supp. 147 (D.Mass.), modified, 227 F.2d 619 (1st Cir. 1955). Under these circumstances, we hold that the trial court's submission of this issue to the jury was clearly appropriate.²

Sea Coast next argues, in light of the absence of a specific demand for unearned wages in the maintenance and cure count of the complaint, that the trial court erred in instructing the jury that this item could be included in its award on this claim. This argument is not persuasive for at least two reasons. In the first place, at least since The Osceola, 189 U.S. 158, 175, 23 S.Ct. 483, 47 L.Ed. 760 (1903), it has been settled that the right to recover wages through the end of the voyage or, as in this case, through the end of the fishing season, see Vitco v. Joncich, 130 F.Supp. 945, 949-950 (S.D.Cal.1955), aff'd, 234 F.2d 161 (9th Cir. 1956), is a recognized element of a disabled seaman's claim for maintenance and cure. See, e. g., Bartholomew v. Universe Tankships, Inc., 279 F.2d 911, 913-915 (2d Cir. 1960); Manard v. St. Lawrence Carriers, Inc., 266 F.Supp. 500, 501 (D.Del.1967); Vitco v. Joncich, supra, 130 F.Supp. at 949 and cases cited; Gilmore and Black, The Law of Admiralty, § 6-12 (1957). In view of the unequivocal acceptance of this rule, although the better practice would be to spell out a claim for unearned wages in the pleadings, a demand for these wages would seem to be implicit in Robinson's complaint. In addition, however, in the instant case Sea Coast never made its position clear that such an award would be beyond the scope of the pleadings until after the court had instructed the jury. During trial no objection was raised to Robinson's testimony concerning his rate of compensation or the fact that these wages had not been paid. Indeed, Sea Coast rigorously cross-examined plaintiff on these issues. Under these circumstances, especially since the complaint could have been amended if this issue had been seasonably raised, Sea Coast may not now challenge the propriety of this award.

Sea Coast's further contention that the trial court's instruction permitting an award of punitive damages was erroneous as a matter of law is also without merit. Support for such an award is found in Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962), where the Supreme Court held that a seaman could recover attorneys' fees as damages where a shipowner was callous, willful, or recalcitrant in withholding these payments. Mr. Justice Stewart, dissenting primarily on the question of the extent of a seaman's recovery for maintenance and cure but seemingly in agreement with the majority's fundamental premise, stated:

"If the shipowner\'s refusal to pay maintenance stemmed from a wanton and intentional disregard of the legal rights of the seaman, the latter would be entitled to exemplary damages in accord with traditional concepts of the law of damages. McCormick, Damages, § 79. While the amount so awarded would be in the discretion of the fact finder, and would not necessarily be measured by the amount of counsel fees, indirect compensation for such expenditures might thus be made." Id. at 540, 82 S.Ct. at 1004.

Such awards or the right thereto have been upheld in the progeny of Vaughan. See, e. g., Solet v. M/V Capt. H. V. Dufrene, 303 F.Supp. 980, 989 (E.D.La. 1969); Roberson v. S/S American Builder, 265 F.Supp. 794, 800 (E.D.Va. 1967); Stewart v. S.S. Richmond, 214 F.Supp. 135, 136-137 (E.D.La.1963). The answer to Sea Coast's further argument that the right to maintenance is essentially a contractual right and that generally punitive damages are not awarded for the breach of such rights is also found in Vaughan, supra 369 U.S. at 532-533, 82 S.Ct. at 1000-1001, where the Court stated:

"Maintenance and cure differs from rights normally classified as contractual. As Mr. Justice Cardozo said in Cortes v. Baltimore Insular Line, supra, 371 of 287 U.S. 367, 174 of 53 S.Ct. 173, 77 L.Ed. 368, the duty to provide maintenance and cure `is imposed by the law itself as one annexed to the employment. . . . Contractual it is in the sense that it has its source in a relation which is contractual in origin, but given the relation, no agreement is competent to abrogate the incident.\' Footnote

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