Runyan v. Great Lakes Dredge & Dock Co., 9598.
| Decision Date | 20 March 1944 |
| Docket Number | No. 9598.,9598. |
| Parties | RUNYAN v. GREAT LAKES DREDGE & DOCK CO. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Bernsteen & Bernsteen and Charles Auerbach, both of Cleveland, Ohio, for appellant.
Duncan, Leckie, McCreary, Schlitz & Hinslea and J. Harold Traverse, all of Cleveland, Ohio, for appellee.
Before ALLEN, HAMILTON, and McALLISTER, Circuit Judges.
Appellant was a seaman employed by appellee aboard its harbor tug, James H. Cassidy, which was a vessel licensed for coasting trade and engaged in the business of commerce and navigation on the Great Lakes.
On June 14, 1938, in the course of his work, appellant sustained an injury to his hand and on November 14, 1938, instituted an action under Section 33 of the Merchant Marine Act, 46 U.S.C.A. § 688. Trial was had before a jury and appellant was awarded $433.44 which appellee paid. On August 9, 1940, appellant filed this action in admiralty.
The trial court found as a matter of law that this action was barred by the earlier one and dismissed appellant's libel, from which judgment this appeal is prosecuted.
In the first action appellant sought recovery among other items for lost wages, past and prospective, and likewise medical and surgical attention and medicines and the court instructed the jury that if they found for the plaintiff they would include in the award any loss of earnings or any impairment of earning capacity. The court stated in the presence of the jury that there was no evidence as to medical or hospital expense and counsel for plaintiff responded that plaintiff had been confined in St. John's Hospital for which defendant had paid the expense.
In the present action libellant claims he cannot follow any gainful occupation without the complete amputation of his injured fingers and that in order that he might be permanently cured, it will be necessary for him to incur additional expenses for medical treatment and surgery and that such treatment will require his complete cessation from work for a period of three months. Prior to the institution of the former action, libellant paid $85 for medical services which sum was not included in the former action and which he now seeks to recover.
Under the terms of libellant's employment, he worked aboard the James H. Cassidy eight hours a day and lived ashore. He had no sleeping quarters on the boat, received no meals from his employer and was paid $9.80 a day for his services.
It is settled that the right to maintenance, cure and wages of a seaman is a contractual obligation arising out of the nature of the employment and any claim on this account is independent of any right of indemnity under the Merchant Marine Act, 46 U.S.C.A. § 688, and that a recovery in one proceeding of indemnity for injuries is not a bar to a subsequent proceeding for maintenance, cure and wages and for indemnity for injuries occasioned by unseaworthiness. Pacific S.S. Co. v. Peterson, 278 U.S. 130, 138, 49 S.Ct. 75, 73 L.Ed. 220. That a libellant in admiralty may at his election join either as an independent or as alternate, claims under the respective rules of recovery would seem clear. Lindquist v. Dilkes, 3 Cir., 127 F.2d 21; Smith v. Lykes Brothers-Ripley S. S. Co., 5 Cir., 105 F.2d 604.
The general rule as to judgments that a judgment on the merits...
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