Socony-Vacuum Oil Co. v. Premeaux

• Decision Date: 15 March 1945
• Docket Number: No. 4281.,4281.
• Parties: SOCONY-VACUUM OIL CO., Inc., v. PREMEAUX et al.
• Court: Texas Court of Appeals

187 S.W.2d 690

SOCONY-VACUUM OIL CO., Inc., v. PREMEAUX et al.

No. 4281.

Court of Civil Appeals of Texas.

March 15, 1945.

Rehearing Denied April 18, 1945.

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Appeal from District Court, Jefferson County; W. S. Nichols, Judge.

Action by S. Premeaux and others against Socony-Vacuum Oil Company, Inc., for alleged negligence of defendant in failing to provide medical advice and treatment for plaintiff's son, a seaman on board defendant's ship. The action was originally brought by the seaman himself, and present plaintiffs were substituted on the seaman's death. From a judgment for plaintiffs, defendant named appeals.

Reversed and rendered.

Lipscomb & Lipscomb, of Beaumont, for appellant.

Marcus & Carrington, of Beaumont, for appellees.

WALKER, Justice.

This is an action based on the Jones Act, 46 U.S.C.A. § 688. On trial appellees were plaintiffs and appellant was defendant, and throughout this opinion the parties will be referred to as they were below. Plaintiffs alleged, in substance, that their son, Karis Premeaux, was employed by defendant as a messman on board defendant's ship Stanvac Calcutta; that by reason of various negligent acts and omissions on defendant's part, the seaman contracted tuberculosis during the voyage of his ship; that defendant was likewise negligent in divers respects in failing to provide medical advice and treatment during the voyage and thereafter; and that by reason of each and all of the various matters so plead, the seaman's illness resulted in his death. Plaintiffs sought recovery for damages for pain and suffering occasioned the seaman. It is unnecessary to summarize allegations respecting negotiations of settlement between defendant and the seaman nor to summarize allegations respecting plaintiff's pecuniary loss "occasioned by the death of the said Karis Premeaux."

The action was brought originally by the seaman against the defendant as his employer, as well as against other defendants; but the present plaintiffs were substituted on the seaman's death, and prior to the trial all defendants other than appellant were dismissed. No question arises on the record as to the capacity of plaintiffs to maintain this suit.

It appears that the seaman was employed by the defendant during the early part of 1942 to serve as a messman aboard the ship Stanvac Calcutta, a tanker operated by defendant, and registered under the flag of Panama. He was then about 26 years of age. He went aboard his ship and entered upon the performance of his duties, and during the course of the voyage (which extended to ports of the Caribbean Sea) became ill. When the vessel arrived at the port of Aruba, N. W. I., he left her and entered a hospital there. This occurred on the 5th or 6th of May, 1942. While in this hospital he was examined by a physician and his illness was diagnosed a pulmonary tuberculosis, moderately advanced. He remained in the hospital until the 20th or 21st of May, 1942, when he left it and went aboard the ship Peter Hurll; and by that ship he was repatriated to the United States. He landed in New York June 4, 1942. It appears that examination and treatment at Aruba and repatriation to the United States were at the instance of defendant. On landing in New York, he proceeded immediately to certain offices of the defendant where he consummated a transaction with defendant's claims investigator Ramsey, resulting in the payment to him by defendant of the sum of $525. Defendant contends that this was a conscious and deliberate settlement and discharge of the cause of action sued upon herein. Plaintiffs allege, in substance, that it was no more than the payment to and collection by the seaman from the defendant of certain wage and bonus moneys accruing to him under his contract of employment. It is established that the seaman at this time executed and delivered to defendant a formal release, and a cash voucher bearing on its face words of release, each of which amounted to a specific release and discharge of the causes of action alleged herein. Plaintiffs' pleadings attacked these releases on various grounds.

A few hours after the completion of this transaction, the seaman went aboard a Greyhound bus in New York and proceeded to his home, which was situated in Nederland, in Jefferson County, Texas. The dates and times of his movements subsequent to June 4th and prior to October 26, 1942, cannot be fixed with precision. However the testimony shows that the seaman remained at this home until sometime later, apparently in June, 1942, when he made a voyage extending over about six days aboard the ship W. W. Mills. Immediately or shortly thereafter, it appears that he entered the marine hospital at Galveston and remained there for a week or ten days; that he was examined by and was directed by the authorities at this hospital to proceed to a marine hospital at Chicago, apparently because tubercular patients were not cared for in the Galveston hospital; and that he complied with these instructions and entered the Chicago hospital. The evidence shows that he remained in the Chicago hospital for an indeterminate time, to-wit, a week or longer. He left that hospital for reasons not apparent and not covered by the testimony, and at some date not clearly shown returned to Nederland. Subsequently, on October 26, 1942, he entered the Jefferson County Tuberculosis Hospital and remained there until his death on April 14, 1943. The parties have stipulated that the Stanvac Calcutta was lost at sea with all hands on some date after May 5, 1942, and before September 1, 1942.

The foregoing disagrees materially with plaintiffs' brief as to the seaman's movements after he left New York. Plaintiffs say that the seaman first applied to the Galveston marine hospital and then to the Chicago marine hospital and was refused admittance in each instance because he had no certificate of discharge from his ship; that he then made his voyage aboard the W. W. Mills to obtain such a discharge, and that on his return from this voyage he entered the Jefferson County Tuberculosis Hospital (which incidentally is not shown to be a marine hospital). We are satisfied however that the statement made by us is correct.

Trial was to a jury. Only one ground of negligence was submitted. The jury found that defendant failed to furnish the seaman "with proper hospitalization and medical treatment after May 20, 1942," which "aggravated or accelerated his tubercular condition," this resulting in "personal injury" to the seaman. The jury also found that the failure to furnish hospitalization and treatment was negligent, and that this negligence was a proximate cause of the seaman's injury. The jury found a verdict for $3,000 damages for physical and mental pain and suffering resulting to the seaman from the aforesaid aggravation or acceleration of his disease, and further found that $1,050 "would have been the fair and reasonable cost of hospitalization and medical treatment of Karis Premeaux between May 20, 1942, and the date of his death on April 14, 1943."

Issues covering certain aspects of the negotiations between the seaman and defendant's agent Ramsey on June 4, 1942, were submitted. The jury found that the seaman did not understand "that the document signed by him in New York was in full and complete settlement of any and all claims," and that he did not advise "the defendant's agents that he wanted to make a money settlement with the defendant company and return to Texas for hospitalization." However, they also found "that the release offered in evidence was executed freely without deception or coercion," and further, that the seaman "before reaching New York was advised that he had pulmonary tuberculosis, moderately advanced." It is unnecessary to refer to any other special issue.

Judgment was rendered in behalf of plaintiffs on this verdict, except that pursuant to stipulation a $500 credit was allowed on the $1,050 referred to. We infer that this was based on the $525 payment made to the seaman on June 4th.

We first note that while the seaman sailed aboard a ship under Panamanian registry, the parties have stipulated "that the plaintiff (an obvious reference to the seaman) was an employee of Socony-Vacuum Oil Company and as such was entitled to prosecute a suit under the Jones Act to the same extent as if he had been aboard an American flag vessel." This stipulation operates in favor of the present plaintiffs, removes from the record any question as to whether the law of Panama is applicable, and requires that the law of this country he applied.

The merits of this appeal will be determined by our conclusions respecting negligence and proximate cause, and we have found it unnecessary to determine any issues arising on defendant's plea of release.

(1) The basic duty involved in this case, the duty owed the seaman by his employer on which any finding of negligence depends, is the duty established by the ancient law of the sea requiring the employer to furnish maintenance and cure to a seaman who becomes ill or is injured while in the service of his ship. Maintenance refers to food and lodging, and cure refers to care and includes medical care and treatment. This duty is imposed by law as an incident of the relation of employer and seaman, irrespective of the fault of the employer, and for wrongful breach thereof resulting in physical harm, the seaman himself had a cause of action for damages under the general maritime law. We refer generally to Cortes v. Baltimore Insular Line, 287 U.S. 367, 53 S.Ct. 173, 77 L.Ed. 368; Calmar Steamship Corp. v. Taylor, 303 U.S. 525, 58 S.Ct. 651, 82 L.Ed. 993; and Garrett v. Moore-McCormack Co., 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239, 244. The Jones Act, 46 U.S.C.A., § 688, vested the seaman with a right of action for personal injuries, sustained in the course of his employment and caused by his employer's negligence; and under ...