Sonnesen v. Panama Transp. Co.

• Decision Date: 24 November 1948
• Citation: 82 N.E.2d 569,298 N.Y. 262
• Parties: SONNESEN v. PANAMA TRANSPORT CO.
• Court: New York Court of Appeals Court of Appeals

298 N.Y. 262

82 N.E.2d 569

SONNESEN

v.PANAMA TRANSPORT CO.

Court of Appeals of New York.

Nov. 24, 1948.

Appeal from Supreme Court, Appellate Division, Second Department.

Action under the Jones Act, 46 U.S.C.A. s 688, by Ib Chr Sonnesen against Panama Transport Company for alleged negligent failure to furnish plaintiff prompt and proper medical attention and for maintenance and cure. From a judgment of the Appellate Division of the Supreme Court, 272 App.Div. 948, 72 N.Y.S.2d 153, which reversed, on the law and the facts, a judgment of the Supreme Court rendered at Trial Term, McCooey, J., in favor of plaintiff and dismissing complaint, on the law, without prejudice to later suit by plaintiff to recover expenses of such maintenance and cure as might be necessary, and disaffirming findings of fact implicit in the verdict as to the first cause of action, the plaintiff appeals.

Judgment reversed and new trial granted. Jacob Rassner and Robert Klonsky, both of New York City, for appellant.

Walter X. Connor and Vernon Sims Jones, both of New York City, for respondent.

DESMOND, Judge.

In October, 1943, plaintiff, a young Danish seaman, then in apparent good health, signed articles at New York City for a voyage of not more than twelve months' duration in ‘worldwide trade’ and ‘back to a final port of discharge in the United States,’ on one of defendant's vessels. Defendant is a Panamanian corporation and its ships are registered under the laws of the Republic of Panama. On the outbound trip, which was through the Panama Canal and across the Pacific, plaintiff, according to some of the testimony, made repeated complaints to the ship's officers that he was ill. He was, however, kept at his duties. When the ship docked at the United States Neval base at Funafuti in the Ellice Islands in the South Pacific, an officer of the ship took plaintiff on board a United States Naval ship there stationed, to consult a Navy physician. That physician gave plaintiff such examination as the facilities of the place made possible, found some indication of, or suspected, tuberculosis, and recommended to the officer that plaintiff be hospitalized at the nearest port. The ship's officers, according to plaintiff's testimony at this trial, did not, even then, relieve him from deck duty, but kept him at work for some two weeks after leaving Funafuti. He was then ordered to bed aboard ship, and, when the ship reached the Panama Canal Zone, bound back to the Atlantic, was sent to a hospital, and has ever since been confined to hospitals, suffering from ruberculosis. Medical opinion testimony offered by plaintiff was to the effect that the ship's officers had been guilty of bad practice toward plaintiff, which had aggravated his illness.

The complaint in the present suit, in which the above was testified to and apparently accepted by the jury, contained two alleged causes of action. The first count charged a negligent failure to furnish plaintiff prompt and proper medical attention, and sought recovery under the Jones Act, U.S.Code, tit. 46, s 688, 46 .s.c.a./ s 688. The second count was for maintenance and cure. The verdict gave plaintiff damages on each count. The Appellate Division, as to the first cause of action, found it unnecessary to decide whether or not the Jones Act applied, the court stating that, whether that statute applied or not, a similar cause of action was available under the general maritime law, citing Cortes v. Baltimore Insular Line, 287 U.S. 367, 53 S.Ct. 173, 77 L.Ed. 368, and that it was to be assumed that the laws of Panama are the same as ours in this respect. The Appellate Division, however, refused to allow a recovery on that first cause of action, but, reversing on the facts and the law, dismissed it on the law for failure of proof, holding that there had been proven, at most, no more than an error in judgment, but no negligence under the Jones Act and no breach of general maritime law. The second, or maintenance and cure, cause of action, also, was dismissed by the Appellate Division (likewise a reversal on the law and the facts, with a dismissal on the law), the court ruling that plaintiff had shown no present need for maintenance or cure beyond what he was now receiving without cost (in a marine hospital) and that there was no showing that he would need any other maintenance or cure in the immediate future, for any definitely ascertainable time. This dismissal was without prejudice to the later institution of another suit for maintenance and cure, if necessary.

We now take up those two causes of action separately.

We think the jury was justified, on the evidence, in finding that defendant's conduct toward plaintiff was wrongful and tortious (see Scarff v. Metcalf, 107 N.Y. 211, 13 N.E. 796,1 Am.St.Rep. 807;Cortes v. Baltimore Insular Line, supra, 287 U.S. at pages 372, 376, 53 S.Ct. 173, 77 L.Ed. 368), but we find no basis for applying the Jones Act to that wrong. That statute, setting up a right of action for seamen against their shipowners for negligence,...