Socony-Vacuum Oil Co. Inc. v. Aderhold

• Decision Date: 14 March 1951
• Docket Number: SOCONY-VACUUM,No. A-2790,A-2790
• Citation: 150 Tex. 292,240 S.W.2d 751
• Parties: OIL CO., Inc. v. ADERHOLD.
• Court: Texas Supreme Court

Page 751

240 S.W.2d 751

150 Tex. 292

SOCONY-VACUUM OIL CO., Inc. v. ADERHOLD.

No. A-2790.

Supreme Court of Texas.

March 14, 1951.

Rehearing Denied June 20, 1951.

Royston & Rayzor and Robert Eikel, all of Houston, for petitioner.

Mandell & Wright, Houston, for respondent.

WILSON, Justice.

The parties will be referred to according to their position in the trial court.

Plaintiff, formerly a seaman on defendant's tanker, the SS SOCONA, filed two causes of action in this suit: first, for maintenance and cure; and, second, for damages caused by a fall from a shelf on the shelter deck. He contends that the shelf was an unsafe place to work; that it was negligence to send him upon this shelf with the ship rolling; that it was negligence to have loose fittings stored on the shelf, and that it was negligence to allow a 'gob of grease' upon which he slipped to remain on the shelf. The jury found negligence under the Jones Act, Title 46, Section 688, U.S.C.A., and awarded $35,907.00 for a back injury diagnosed by plaintiff's doctor as an herniated disc.

The trial court entered a judgment reflecting the jury's findings, which has been affirmed by the Court of Civil Appeals, 230 S.W.2d 834.

In response to his action for maintenance and cure, the jury found that plaintiff was injured while employed on defendant's vessel; that $4.00 a day was a reasonable compensation for maintenance and cure; and that plaintiff would reach his maximum recovery on January 15, 1950 beyond which his condition could not be improved by ordinary treatment known to medical science. The trial judge determined that plaintiff was entitled to 1098 days of maintenance and cure at $4.00 a day, or a total of $4396 in addition to the damages for negligence.

Defendant contends that during a portion of the period for which maintenance and cure were allowed plaintiff was employed by others and supporting himself; that during another portion of this period plaintiff lived with his mother to whom he was not obligated to pay board and room; and that during another portion of this period plaintiff attended a mortuary school and drew veteran's subsistence payments from the Federal Government. Defendant attacks the entire sum on the ground that plaintiff did not offer positive proof that the sums he expended were reasonable. Defendant asks for a reduction of the sum to $2500 on the grounds that plaintiff plead maintenance and cure in the amount of $2500 and recovered $4396.

Maintenance and cure is an ancient remedy peculiar to Admiralty Law arising out of contract and not negligence. It is an obligation a vessel owes an injured or sick seaman. It was a forerunner of the modern Workmen's Compensation Law.

Plaintiff was discharged, fit for duty, by a government marine hospital soon after his fall. He sailed one voyage on the SS Cannon Beach. He testified that he was not able to do the work and has made no further attempt to work as a seaman. The trial court properly deducted from the computation of time for maintenance and cure the period plaintiff was in the marine hospital (at government expense) and the period of the voyage on the SS Cannon Beath. The Balsa, 3 Cir., 10 F.2d 408.

Within the period for which the trial court allowed maintenance and cure, plaintiff was employed by two different undertakers (one paid wages of $15.00 and the other $35.00 a week) as a part of and during his nine-month course at a mortuary school. Defendant contends that it is under no obligation for maintenance and cure while plaintiff worked for someone else. Plaintiff contends that maintenance and cure is a matured contractual obligation not affected by shore employment. When a seaman signs out on a subsequebnt voyage his maintenance and cure arising out of a former voyage is suspended during the subsequent voyage, for feeding and caring for him is the obligation of the second vessel, as the trial court correctly held in this case. The mere fact that an injured seaman attempts shore employment should not of itself deprive him of his maintenance and cure. It may raise a question of fact as to whether or not his injury during that time prevented him from supporting himself in whole or in part. The question to be determined is the extent to which the plaintiff's injuries prevented him from fully supporting himself by shore employment. In discussing maintenance and cure in Calmar Steamship Corp. v. Taylor, 303 U.S. 525, 58 S.Ct. 651, 654, 82 L.Ed. 993, the court said: 'The duty does not extend beyond the seaman's need.' In The City of Avalon, 9 Cir., 156 F.2d 500, the court said: 'The purpose of the historic implied contract to maintain an injured seaman arises from his helplessness during his injury, a right 'every court should watch with jealousy' to maintain. Story, J., in Harden v. Gordon, 11 Fed.Cas. (page) 480, No. 6047.' In Loverich v. Warner Co., 3 Cir., 118 F.2d 690, the court specifically excluded periods of shore employment. To hold that shore employment as a matter of law barred recovery for maintenance and cure, as defendant urges, would discourage an injured seaman from attempting to support himself. On the other hand, to hold that sickness or injury arising during a voyage creates an obligation for maintenance and cure irrespective of shore employment, as plaintiff urges, would impose an unreasonable burden upon the vessel. This is a fact question which should be defined in the court's charge and submitted in appropriate special issues.

The specific facts which the jury should find in this type of case are:

(a) the time when maintenance and cure should begin;

(b) the time when maintenance and cure should terminate;

(c) the per diem allowance for maintenance and the expenses of cure (d) the total amount of money which plaintiff has earned at the time of trial by his shore employment within the bracket of time defined in (a) and (b) above; and

(e) the total amount of expected future earnings from shore employment between the time of trial and the termination of maintenance and cure.

This will allow the trial court in entering judgment to deduct the amount of money earned by shore employment from such sum as may be allowed for maintenance. Of course, the trial court will exclude, as a matter of law, periods when a plaintiff is on other ships or in government hospitals.

Neither plaintiff nor defendant requested additions to the charge or special issues upon this testimony or objected to the court's failure to charge upon this subject. Since issues concerning the amount of shore employment are actually part of the defense, they are issues raising an independent ground of defense and the burden rests upon the defense to request them. Not having requested issues in this case, the defense waived this independent defense. Rule 279, Texas Rules of Civil Procedure.

Defendant's contention that it is relieved from the payment of maintenance and cure during the period when plaintiff was living with his mother is without merit. In Cortes v. Baltimore Insular Line, 287 U.S. 367, 53 S.Ct. 173, 175, 77 L.Ed. 368, the court said, 'If the seaman has been able to procure his maintenance and cure out of his own or his friends' money, his remedy is for the outlay'. In Brinkman v. Oil Transfer Corp., 300 N.Y. 48, 88 N.E.2d 817, 819, 13 A.L.R.2d 623, the court said, 'It would, we think, badly serve the interests of these 'wards of the courts' to hold that an owner may escape his burden by standing aside while parents or relatives succor the ailing seaman.'

Defendant's contention that it is relieved from the payment of maintenance and cure during the period when the plaintiff was receiving veteran's subsistence payments from the Federal Government is without merit. Plaintiff's rights under what is signs out on a subsequent voyage his not arise from his employment contract with defendant, were personal to him, and had no connection with his injury or with defendant's obligation by reason of that injury. This is a completely different situation from that in which plaintiff seeks other employment because other employment demonstrates his ability to work, thus going to the nature and extent of his disability.

Defendant's contention that plaintiff failed to offer proof that the amounts he expended for food and lodging were reasonable is without merit in view of the jury's finding of $4.00 a day. Plaintiff contended for $6.00 a day. In admiralty, if a defendant believes that amounts actually expended for maintenance and cure are unreasonable, he may offer rebuttal proof. The common law rule placing the burden upon plaintiff of producing independent proof of the reasonableness of expenditures for food, lodging, medicine, hospital expense, doctor's charges, etc., would place an undue burden upon seamen who may incur expense for maintenance and cure in seaports all over the world.

Defendant's contention that plaintiff is limited by his pleadings to a total of $2500 for maintenance and cure is correct. It is true that plaintiff pleads maintenance in the amount of $6.00 a day but this is not a liquidated demand because the pleading does not allege a definite number of days. The pleadings establish the boundary of a lawsuit. That boundary should be marked with corner posts 'for all the world to see'.

Plaintiff contends that since this involves a maritime law the special position of a seaman as a ward of the admiralty court entitles him to special consideration in construing his petition. Hopson v. Gulf Oil Co., Tex.Sup., 237 S.W.2d 352, resolves this question against plaintiff and we here reaffirm that holding. In admiralty there is no jury. Since in admiralty a trained judicial mind finds the facts and fixes the damage, the practice has always been informal.

In an action brought for personal injuries when the Jones Act was new, a seaman sought to gain damages on the law side of the court under the Jones Act and collect them in admiralty through in rem proceeding against...