Smith v. Jugosalvenska Linijska Plovidea

• Decision Date: 18 April 1960
• Docket Number: No. 8042.,8042.
• Citation: 278 F.2d 176
• Parties: James SMITH, Libellant, Appellant and Cross-Appellee, v. JUGOSALVENSKA LINIJSKA PLOVIDEA, Respondent, Appellee and Cross-Appellant, v. HAMPTON ROADS STEVEDORING CORPORATION, Impleaded-Respondent, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

278 F.2d 176 (1960)

James SMITH, Libellant, Appellant and Cross-Appellee, v. JUGOSALVENSKA LINIJSKA PLOVIDEA, Respondent, Appellee and Cross-Appellant, v. HAMPTON ROADS STEVEDORING CORPORATION, Impleaded-Respondent, Appellee.

No. 8042.

United States Court of Appeals Fourth Circuit.

Argued March 14, 1960.

Decided April 18, 1960.

Sidney H. Kelsey, Norfolk, Va., for appellant and cross-appellee.

Hugh S. Meredith and Walter B. Martin, Jr., Norfolk, Va. (Vandeventer, Black, Meredith & Martin, Norfolk, Va., on brief), for appellee and cross-appellant.

John W. Winston, Norfolk, Va. (Seawell, McCoy, Winston & Dalton, Norfolk, Va., on brief), for appellee.

Before SOBELOFF, Chief Judge, and HAYNSWORTH and BOREMAN, Circuit Judges.

BOREMAN, Circuit Judge.

James Smith instituted a libel in admiralty in the United States District Court for the Eastern District of Virginia, Norfolk Division, against the motor vessel SRBIJA, a Yugoslavian vessel, and her owner, Jugosalvenska Linijska Plovidea, to recover damages for personal injuries sustained during the performance of his duties as a longshoreman on said vessel. The vessel and her owner, hereinafter called "Vessel", seeking indemnification, impleaded Smith's employer, Hampton Roads Stevedoring Corporation, hereinafter sometimes called "Stevedores", under General Admiralty Rule 56, 28 U.S.C.A. Unseaworthiness of the vessel was established and admitted and the District Court, after finding that the Vessel had no justifiable claim over against Stevedores, concluded that the only issue was the question of damages. A decree was entered awarding Smith $5,750 against the Vessel. This appeal by Smith and cross-appeal by Vessel followed.

Smith, a male negro twenty-eight years of age, married, with four children, worked as a longshoreman during 1957 and 1958. It is generally agreed among the doctors who testified that although Smith worked successfully as a long-shoreman during this period, he should not have been so employed because of his health, which is later discussed. On June 20, 1958, he was sent on board the SRBIJA for work in the number 4 hold, access to which was provided by a vertical steel ladder. The top of the ladder was supposedly attached to the hatch coaming and the bottom was secured to the 'tween deck. Three longshoremen, members of his same crew, preceded Smith down the ladder without incident. Smith stepped onto the ladder and while he was descending, it swung away from the hatch coaming to an angle of about 45° with the 'tween deck and Smith was jerked or thrown to the 'tween deck below where he struck his head. The bolts which ordinarily secured the ladder to the coaming were not in place but the evidence fails to disclose who removed them. Unconscious, Smith was taken to the Norfolk General Hospital and when he regained consciousness he was in a raging and maniacal condition.

The evidence indicates that Stevedores' safety man, Robert E. Spellman, preceded the working crew on board and noticed that the ladder in question was not secured by bolts although it was a bolt type ladder. It was his job to inspect ship's equipment before the same is used by longshoremen. He testified that he only looked at the ladder, did not put his hand on it, and without further investigation decided that it was welded in place.

The primary question as to Smith's right of recovery is whether or not he suffered from epilepsy prior to the shipboard accident and, if so, whether the accident aggravated the pre-existing condition. On this appeal Vessel contends that Smith sought to work a fraud on the court by failing to disclose his prior epileptic seizures or personality disorder, by failing to disclose his hospitalization for these conditions and by concealing his first army service in 1946 from which he was given a medical discharge. During the trial the District Judge noted these failures to make disclosures, but concluded that his decision would not be affected thereby if he found aggravation of a pre-existing condition since persons so afflicted are naturally reluctant to disclose such affliction. We accept the court's approach and conclusion with respect to this phase of the case.

The District Court considered the testimony of five doctors and had before it records of the several diagnoses made by the army and its medical reviewing boards relative to Smith's condition. From this evidence, along with the testimony of Smith's wife and employer, the court determined that Smith had been subject to convulsive seizures since age six; that these seizures have continued with some degree of regularity; that he had no convulsive seizures for about two years prior to the accident; that he suffered a seizure while in the hospital about twelve days after the accident; and that his raging and maniacal condition prior to the seizure while he was in the hospital indicates that Smith not only suffers from occasional attacks of epilepsy, but also from some personality disorder which affects his activity. The court, relying primarily upon the testimony of Dr. Frederick G. Woodson, an expert witness described as "specialty board certified" in neurology and psychiatry, concluded that while the injury to the head did not aggravate the epilepsy grand mal¹ condition, there was some aggravation of the personality disorder which accompanied the epileptic condition. Therefore, the court allowed Smith the equivalent of six months' salary for the temporary aggravation based upon his proven earning capacity over the eighteen months preceding the injury, plus an allowance for medical expenses, pain and suffering.

Smith contends that the award is grossly inadequate since Drs. Sawyer, Maddock and Thrasher testified that the injury did aggravate the epileptic condition, if one existed, and that he was permanently disabled. Based upon his earning capacity as shown by the eighteen months preceding the injury and his life expectancy of 42.53 years, Smith claims that the award should have been in excess of $120,000.

The problem confronting the doctors in this case is the inconsistency in the medical records of the army and its medical reviewing boards. Summarizing briefly, these records show that Smith enlisted in the Army Air Force on January 31, 1946. He remained in the service until December 17, 1946, at which time he was given an honorable medical discharge, the assigned reason being "epilepsy, grand mal, psychomotor". He was given a 100% disability pension. After being discharged from the army, Smith was placed in the Veterans' Hospital at Kecoughtan, Virginia, for further care. Upon his release from the hospital, Smith took G. I. training as a brick mason for nine months. He had difficulty learning the trade so he quit and worked at various laboring jobs for about four months, at which time he returned to the hospital. Later he resumed training as a brick mason, suffered a convulsive attack and was again hospitalized. Sometime during this period his disability pension was reduced to 50% of the original amount. Upon being again released from the hospital, he worked intermittently as a laborer until redrafted through Selective Service in 1952. On February 4, 1953, the Army Medical Board reviewed Smith's medical history and concluded that the earlier diagnosis of epilepsy grand mal in 1946 could not be sustained; that the diagnosis of epilepsy was made primarily on history and that "the negative EEG² findings with this type of history is strongly suggestive of hysteroid phenomena under frustration and in a `temper tantrum' rather than psychomotor epilepsy". With this diagnosis Smith lost his disability pension and remained in the army until June 1954. Thirteen months of this tour of duty were spent in Korea.

Upon discharge in June 1954, Smith resumed laborers' work until February 1956 when he entered the Veterans' Hospital at Kecoughtan. Once again Smith's medical records were reviewed and on May 14, 1956, it was decided that the 1953 diagnosis of passive-agressive personality, aggressive type was clearly and unmistakenly in error; that the one sole diagnosis was epilepsy grand mal and severe psychomotor attacks. With this diagnosis Smith was given a 40% disability pension which he still receives. It may be noted...