The opinion
On Petition foe Beheaeing
( 58 P. (2d) 235 )
BEAN, J.
Besporident has filed a petition for rehearing which raises a question in regard to the instructions of the trial court. In our former opinion we found no reversible error in regard to the first cause of action for negligence. In regard to the second cause of action, for maintenance, we found error in the instructions to the jury, in substance, in stating that it was the shipowner’s duty to provide the seamen with “maintenance or subsistence until a cure has been effected or plaintiff’s ailments have become stationary
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Our attention is now called to other instructions which strictly limit the maintenance to the time the seaman is actually disabled from work and which we think cured the apparent error and plainly submitted the question to the jury. We quote from the instructions given to the jury:
“In the second cause of action stated in the complaint the plaintiff claims $600.00 which he designates as maintenance at the rate of $100.00 per month. I instruct you that maintenance is a sum which, under the law, shipowners are sometimes called upon to pay to seamen who become sick or injured in the service of the ship. But, since this is an allowance made only for the purpose of affording a sailor his keep while He is recovering from an illness or injury,
it is strictly limited to the time he is actually disabled from work,
and is also strictly limited to the reasonable expenditures he makes or incurs for food and lodging during that period. [Italics ours.]
“In this particular case you have heard the testimony of Compton and the doctors as to whether he was disabled at all or not, or whether he was able to go on working, and you have heard the testimony that he was operated on for appendicitis in October and stayed in the hospital some Httle time therefor, and all the other testimony in the case, which I do not attempt to recall or specify, but from all of this you are to decide whether he was disabled from work, and if he was disabled from work, how long a time he was disabled, and how long a time he was put to the necessity of keeping himself as a result of this itch, provided you find he had the itch. If you find that he was, as a result thereof, disabled any time at all, then you must ask yourselves what evidence is there of any charges or expenditures that he made or incurred for his reasonable board and lodging. If he has proved any, then if you think they are reasonable you can allow them. But you cannot allow them beyond what you think is reasonable, nor beyond the actual proof of what he has spent or incurred
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for Ms keep during the period in which you may think he was actually disabled. As I said before, this is a bounty accorded by the law to the seamen, and is not a thing,to be abused.”
There is a correction to be made in the computation of time plaintiff was unable to work on account of the illness, as contained in the judgment. Compton’s voyage ended on August 19,1933. The evidence shows that on account of the ailment he was unable to work until about January 1, 1934, but during that time, on account of a major operation which was performed upon him, he was disabled from work for about six weeks. The jury’s verdict on this was as follows:
“* * *
and on plaintiff’s second cause of action we find' our verdict for the plaintiff in the sum of $500.” We think the testimony supports the verdict and judgment for maintenance in the sum of $300, and no more, wMch is a reasonable amount for plaintiff’s maintenance. The judgment for' the second cause of action will be modified accordingly.
Our former opinion will be reversed and changed and a judgment will'be rendered in favor of plaintiff and against the defendant in the sum of $700 on the first cause of action, for damages, and $300 on the second cause of action, for maintenance.
Neither party will recover costs in this court.
The petition for rehearing will be denied.
Rand, J., dissents.