Petition for Writ of Certiorari — Mullen v. Fitz Simons & Connell Dredge & Dock Co.

Supreme Court brief1953

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IN THE SUPREME COURT OF TRE UNITED STATES

: OCTOBER TERM, 1952

CHARLES MULLEN,

Petitioner,

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FITZ SIMONS & CONNELL

DREDGE & DOCK CO., a

Corporation,

Respondent,

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS FOR THE

SEVENTH CIRCUIT, AND BRIEF IN

SUPPORT THEREOF.

IRVING BREAKSTONE

Attorney for Petitioner

140 North Dearborn Street

Chicago 2, Iliinois

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Petition

Statement of the Matter Involved

Jurisdictional Statement

Questions Presented

Reasons Relied on for Allowanee of Writ

Brief

Opinion of the Gourt Below

Jurisdiction

Statement of the Case

Bpecification of Errors

Summary of Argument

Argument:

I. Plaintiff-petitioner ia entitled to judgment

under all the fects and cireumetances of this

Gase for medical cure and maintenance, which

right arises out of the Meritime employer-

employee relationshiv, irrespective of negli-

gence or feult on the nart of the Defendant-

respondent, and in the absenoe of willful mis-

behaviour, viciloue sonduct, or willful disse

obedience of orders by the Flaintiff-petitioner.

Il. On Appeal in Admiralty to the Court of Appeels,

the Appellant is entitled to a trial de novo,

Ili. There is no evidence of willful disobedience

or culpable fatlure on the part of the sea-

man, LLEX, to justify the findings of the

Court to the eontrary and upon which it denied

him relief for maintenance ani cure.

IV. Plaintiff-petitioner ie entitled to judgment

cor $1,606. 3 ~ interest at 7% from Sep-

tember 29, 1

V. A seaman's right under the Maritime Law to be

cured at the expense of the ship cannot be

taken away from him by requir him to enver

Marine Hospitals of the Public Heelth Service.

Conelusion

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TABLE OF CASES CITED,

Page

Aguilar vy. Standard 011 Co., 318 U.8. 724 17-18-19

Barlow v. Pan Atlantic 8,5. Corp. 101 F. (24) 697 18

Drowne v. Great Lakes Transit Corp. 5 Fed. (24) 58 15

Gilehrist v. Chicago Ins.Go, 104 ¥. 566 (7%h CCA) 15

Hagerman v. Moren (1896 75 F. 97 (CCA 9th) 22

Holt v. Cummings, 102 Pa. 212, 48. 23

Mullen v. Fitz Simons & Connell Dredge & Dock Co, 191

F. (24) 959 20

Matton 011 Transformer Cor. v. The Dynamic 125 ¥. (24) 999 15

North. Pac, Goast R. Co. v. Hall, 200 U.S. 619 15

The Lyfia 1 °F. (24) 18 15

The S5everanee, 152 F. (2a) 916 15

The Glenochil (1904) 128 F, 963 (D.Da1.) 22

The Gladiator (1898) 223 7, 381 22

The Axby (1897) 83 F. 720 (CCA 4th) 22

Todd Erie-Bbasin Dry Dock v. Penelope, 148 F. (24a) 884 23

Warren v. United States, 340 U.8, 523 (Feb. 1951) 18

48 Am.Jur. Shipping Per. 175 23

Am. Rep. 199 23

Anno. 4 A.LLR. (N.S.) 77 23

7 Ann, Cas. 209

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IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 19§2

no. Y//

CHARLES MULLEN,

Pet it Loner,

FITZ SIMONS & CONNELL

DREDGE & DOCK CO., a

corporation,

Respondent.

Pp ON FOR T OF

T Cou Fr F

CrRcurr.

TO THE HONORABLE FRED M. VINSON, CHIEF JUSTICE OF THE UNITED

STATES, AND THE ASSOCIATE JUSTICES OF THE SUPREME COURT

OF THE UNITED STATES:

The Petitioner, CHARLES MULLER, respectfully petitions

this Honorable Court for a Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit.

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This action was brought under the special rule for seamen to

gue without surety and prepayment of fees to recover damages for personal

injuries sustained while in the employ of the defendant-respondent, for

maintenance and cure and damages for failure to provide expenses of

maintenance while incapacitated.

The defendant-respondent made a motion fer a directed verdict

at the close of all the evidence in the case, and the court reserved

its ruling thereen. The jury rendered a verdict on April 6, 1950,

for the plaintiff-petitioner in the sum of FORTY-FIVE HUNDRED DOLLARS

($4500.00) damages. The court on October 17, 1950, entered an order

sustaining the motion of the defendant-respondent for a directed ver-

diet, and diamissing the plaintiff-petitioner's cause and assessed

costs against him from which an appeal was taken to the United States

Court of Appeals.

This case has been before this court before on the legal

sufficiency of the pleadings, 172 F. (24) 601, Case No. 9$91; cert.den.

U.S. Supreme Court, June 27, 1949; 337 U.8. 959.

SON ROY A EONS ERT RPC

The United States Court of Appeals for the Seventh Cireuit

affirmed the judgment as to Count I of the Complaint, and reversed

and remanded the judgment of the District Court as to Counts II and

III of the Complaint, and remanded the eause for further proceedings

under said Counts II and III of the Compleint.

POEL IAI IROL CP KOO YO PATOL

The opinion of the United States Court of Appeals of the

Seventh Circuit is reported in 191 F. (24) 959, and contains a complete

statement of the facts. Petition for Certiorari to the Supreme Court

of the United States was denied.

On remand in the United States District Court, Findings of

Fact and Conelusions of Law in Admiralty were made ani order entered,

that Counts II and III of the Complaint, sounding in Admiralty, for

Cure and Maintenance, be dismissed on the merite and all questions

of costs reserved until the further order of the eourt.

REGS GE OE AP REI GPP RENAL LTS OO LI I EIS EAE FEI ELE OF IIE IIE LE &

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An Appeal was taken to the United States Court of Appeals

of the Seventh Cireuit and on October 7, 1952 that court affirmed the

Decree of the District Court. A Stay of Mandate wae granted, pending

the proseoution of certiorari herein.

The decision of the Court of Appeals in effect holds that

a seaman forfeits his right to medical cure and maintenance, where the

injuries are caused solely by the seaman's own willful disobedience

of orders and culpable failure to perform his known duty in service

of the ship, and is further deprived of his right to expenses of medical

Gare and cure because he is required te avoid such expense by use of

the free services of the Marine Hospitals of the United States Public

Health Service, and that the availability of this service prevents his

recovery for maintenance as well as cure, all contrary to the applicable

€eeisions of the United States Supreme Court.

THIS COURT HAS JURISDICTION

This Petition is authorized by Title 28, United States

Code, Seetion 1254 (2) whereby this Court has explicit authority te

review by certiorari cases in the Court of Appeals "before or after

rendition of judgment or decree. *

The deeision of the Court of Appeals has decided Federal

questions “in a way probably in sonflict with applicable decisions of

thie Court® and “has so far 4eperted from the accepted and usual course

of “judicial proceedings * * * as to call for an exercise of this

Court's power of supervieion. ®

QUESTIONS PRESENTED

1. Whether the plaintiff forfeited his right to medical

cure and maintenance et the expense of the defendant-appellee by reason

of evidence in the case substantiating thet the injuries to the Plaintifr-

appellant were “caused solely by the seaman's own willful disobedience

of orders and culpable failure to perform his known duty in the service

MORE OLD BRAN ET PIPL. TR NEN TEM HIE UH

of the ship.*

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2. Whether an injured seaman is deprived of his right te

expenses of medical care and cure because he is required to apeid

such expense by use of the free services of the Marine Hospitals

of the United States Public Health Service, and that the availability

of this service prevents his recovery for maintenance as well as

cure.

3. Whether or not there is evidence in the record euffi-

Cient to enable the court to fix the amounts due the Plaintifr-

appellant for maintenance and cure,

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1. The deeision of the Court of Appeals in effect holds that the

plaintiff seaman forfeited his right to maintenmee and cure because of

alleged willful 4isobedienee of orders ani Gulpable failure to perforsn

his known duty in the service of the ship, despite the facet that there

is mo evidence in the recoré to support any charge of “wiliful® ais~

obedience or “eulpable® failure on the part ef the seaman Plaintirr,

There are no facts in evidence in the Gage at ber to warrant the appl ica~

tion of that prineiple,

Marren vy, U.S,, 340 U.S, §23-528

ig in favor of the reeovery on the part of the plaintiff in the case at

bar, end the facts in the instant case with reference to the eonduet of

the plaintiff are conclusive that there was no willful disobedience of

orders or culpable failure to perform his known duty. He simply emitted

to close a door in a galley when the ship wes in rough weather, which

brought about his injury.

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2. The Court of Appeals in its deeision to the effect that the

Plaintiff should be denied expenses Of @are because the defendant tendered

him admission to the Maritins Hospital, ie in error and Contrary to the

decisions and established authority,

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e deep (N.8.) 97

3. The Court of Appeals erred in failing to give the plaintire ;

Judgment de nove in Admiralty for $1,606.21 with interest at 7% fron

Beptember 29, 1947,

WHEREFORE, Petitioner respectfully prays that Writ of Cer~

tierari issue to the Court of Appeals for the Seventh Cireuit to the ena

that the record in the appeal styled CHARLES MULLEN, Appellant <-vg-

PIT. SIMONS & CONNELL DREDGE & DOCK CO., a sorporation, Appellee,

No. 10322 on the docket of enid Court of Appeals may be brought before

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thie Court for review, ani the judgment of said Court of Appeals

reversed, and the cause remanded with directions to reverse the

judgment of the District Court in toto and to enter judgment in

the amount of $1,606.21 in favor of the plaintiff-petitioner,

CHARLES MULLEN.

RESPECTFULLY SUBMITTED,

TRVING BREAKSTONE

Attorney for Petitioner

140 North Dearborn Street

Chieage 2, Illinois

State 2/2922

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IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1952

NO.

CHARLES MULLEN,

Petitioner,

«YG

FITZ SIMONS & CONNELL

DREDGE & DOCK CO., a

corporation,

Respondent,

BRIEF IN SUPPORT OF PETITION

FOR WRIT OF CERTIORARI

ee ee ee

QPINION OF THE COURT BELOW

The opinion of the Court of Appeale for the Seventh Cir-

cuit is reported in: 198 F. (24) Advance Sheets - Volume 5-

end appears in full in the certified copy of the record in that

REPORT Oe

Court.

STAR Re MADR

TURISDICTION

The jurisdiction of this Court is invoked under Title 28,

United States Code, Seetion 1254 (2). The Court of Appeals hac de-

cided important federal questions of federal law “in a way probably

in ebaflict with applicable decisions of this Court," and in a way

in @eaflict with the decisions of the Court of Appeale for other

Circuits and "has so far departed from the accepted and usual course

of judicial proceedings, or has so far sanctioned such a departure

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by a lower court, as to call for an exercise of this Court's power

of supervision.” (Supreme Court Rule 38 (5) (b).)

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The opinion of the Court of Appeals was filed on

October 7, 1952.

STATEMENT OF THE CASE

This action was brought under the special rule for seamen to

sue without surety and prepayment of fees to recover damages for

Personal injuries sustained while in the employ of the defendant-

Pespondent, for maintenance and cure and damages for failure to

provide expenses of maintenance while incapacitated.

The def endant-respondent made @ motion for a directed verdict

at the close of all the evidenee in the Gase, and the Court reserved

ite ruling thereon. The jury reniered a verdict on April 6, 1950,

for the plaintiff-petitioner in the sum of FORTY-FIVE HUNDRED DOLLARS

($4500.00) damages. The Court on October 17, 1950, entered an order

suataining the motion of the defendant-respondent for a direeted ver-

dict, and dismissing the Plaintiff-petitioner's cause and assessed

Coste againet him from which judgment an appeal was taken to the

United States Court of Appeals.

The United States Court of Appeals for the Seventh Cireuit

affirmed the Judgment as to Count I of the Complaint, and as to

Counts IZ and III reversed and remanded the judgment with directions

to proceed further in a manner consistent with the Court's opinion.

Petitioner is Cognizant of the directive stated in this

Court's Rule 36, (2) that a supporting brief on certiorari must be

direct and concise. Asecordingly, Petitioner prays this Court's

indulgence to set forth the facts in the cause at some length. The

full foree of the objections to the decision of the United States

Court of Appeals cannot be presented otherwise. A further consideration

prayed for is that the Petitioner is filing, simul taneously, his Peti-

tion te prosecute certiorari on typewritten papers, and that said pro-

Ceedings may be had upon the certified transcript of the proceedings

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hed in the court below. A more complete statement of the facts

herein pertaining to the cause of action will greatly facilitate

an understanding of the issues presented.

This case has been before this Court before on the legal suf-

ficiency of the pleadings. 337 U.8. 959 denying certiorari to 172

¥ (24) 601, and again on the matter of the diemissal of plaintiff's

Claim for damages under the Jones Act with certiorari denied by this

Court.

CHARLES MULLEN, the Petitioner, a single man, fifty-two (52)

years of age, was employed ase a deckhand and linesman by the defendant-

respondent, FITZ SIMONS CONNELL DREDGE & DOCK CO., aboard ite tug,

the Roche, at Indiana Harbor on September 29, 1947, Hie rate of

pay was $12.20 per day. Tr, 25-27.

The erew on the Roche on the day in question consisted of the

Captain, two firemen, MULLEN, the linesman, and an engineer. An

agent and employee, of the defeniant-responient, together with a

scowman were also sboari. At about ten minutes to 7:00 A.M., pun

guant to orders, MULLEN let go his lines, and the tug set out to

heave a look at the westher in the lake. ‘Tr. 26=29.

The Tug Roche is about 76 feet in keel length, has about a

20 foot beam, and 12 feet 6 inches in depth. It has an overall

length of 83 or 84 feet. On the day in question, she was about 14

inches of her depth above the water line. The tug has a deskhouse

and pilot house. The pilot house is in the forvari part of the ves-

sel, and in rear of the pilot house is the deothouse to which there

are doors for ingrese and egress. Tr. 152-154,

In the rear of the deokhouse is a Salley. A door led down

into the same. This door was around $ feet high, and about 3% feet

wide. There was a combing about the door. The door was not flush

with the deck. This door was made of steel and suspended in the

Casement on hinges. In closing the door swung aft. This door was

kept open by a kind of hook against the eteel deckhouse. This drop

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hook was fastened to the steel deckhouse and slipped over the entire

top of the door in order to hold the same open.

The Captain headed the tug through Indiana Harbor in an

easterly direction towards Lake Michigan. The water in the Harbor

near the dock was choppy.

In Indiana Harbor there are breakwaters facing the Lake. One

rune east and another has a red blinker light @alled the inside light.

The main breakwater has a Green light thereon. There is a gap in the

breakwaters through which the tug proceeded. The waves were very

high on the breakwater, and the spray from the waves cane up over the

Catwalk which is around 40 or 50 feet high. The waves were coming up

over the top part of the catwalk ani breakwater. The Tug Roche pro-

ceeded through the gap, and Past the white light into the lake proper.

MULLEN was engaged in unloading ashes at the time from the fire hele

of the vessel and dumping the same overboard. MULLEN aid not know

when they started out that the tug was going out into the lake proper.

When he saw they were Going out into the lake, and had already arrived

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there and a large wave was about to strike the vessel, he dropped the

ash bueket and ran back 10 or 15 feet to the galley steps in order

to avoid being washed overboard. The deck was awash with the waves

hitting the Roche, MULLEN S@mped into the Companionway and landed

on the first or second step, the waves following him in. When he

jumped into the companionway, he grabbed hold of a 8111 of the

door in orier to steady himself ani prevent himself from felling.

His @ingers slipped into the jamb of the door, and the vessel was

rolling. The hook failed to hold the door which slammed upon his

fingers and hand, pinching them between the efge of the door ant the

sill. Tr. 31-37,

The tug was turned around into the lake and headed for the

dock in the harbor. A tourniquet was applied to MULLEN's arm. First

aid was given him at the Infirmary at the dock. He was then taken to

the Indiana Harbor Clinic; thereafter to St. Catherine's Hospital

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where he remained for a period of about eight or nine days. MULLEN

suffered severe and steady pain all the time he was in the hospital

and for months thereafter. After leaving the hospital, MULLEN was

required to make tri-weekly visits to the clinic at Indians Harbor

for medical treatment. He was finally discharged by the clinic on

December 26, 1947. ‘These tripe eost him $5.01 for » roum trip,

MULLEN was laia up and unable to work unti} May 17, 1948. at the

time of the trial in April of 1950, MULLEN, the Plaintiff-petitioner,

was now able to close his hand. He was unable to hold a ban which

interfered with his work ae a linesman or fireman, ‘Tr, 36-86.

It cost MULLEN $5.00 a day for fooa and maintenance and

no part of this maintenance wae paid to him by the defendant-respondent,

FITZ GIMONS CONNELL DREDGE & DOCK CO., nor 444 they reimburse hin for

the amount due him in getting medical attention at the Indians Harbor

Clinie to which he made his tri-weekly periodical Visits from the

City of Chieage. MULLEN Sustained an approximate forty per cent (40%)

functional lose in the use of his right hand. Tr, 95, 96.

The purpose of taking the tug out to look at the weather was

to ascertain how much sea wae running, and to determine whether or

not conditions were such as to permit work under the weather con-

ditions in question. The tug was run out about a 1/4 mile inte the

lake beyond the furthest breakwater and light. Tr, 158, 159.

The Plaintiff recoveres @ verdict of FOR@E-FIVE HUNDRED

DOLLARS ($4500.00) defore a Jury in the Distriet Court ana the Court

subsequently thereto having reserved ite ruling on a motion for a

directed verdict Sustained said motion and entered a judgement for the

Defendant. On appeal to the United States Court of Appeals, 191 F (2a)

959, certiorari denied in the Unitea States Supreme Court, the Court

of Appeals affirned the judgment of the District Court, diemiseing

Plaintiff's Complaint for Damages under the Jones Act and reversing

and remanding the Judgment with reference to Counts IZ ana ITZ of the

Complaint for maintenance and cure with directions, Thereafter, the

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siete abate inattina aetna ena eniianiainaiadininaiii dealin ietncetneianie alll.

ee a nciais wis Bea ricci:

United States District Court made ite findings and conclusions of

law in Admiralty, dismissing Plaintiff's Complaint for ma intenance

and cure which Decree was affirmed by the United States Court of

Appeals.

EC T Fr 5 TO

The Court of Appeals erred:

1. In failing to award Judgment for the Plaintiff in the

sum of $165.33 for medical expense and cure; $1,160.00 for maintenance

and $280.88 for Costs, or a total of $1,606.21, together with interest

at the rate of 7% per annum from September 29, 1947,

2. In denying the Plaintirr recovery for maintenance and

cure under all the facts and cireumstances in this case.

3. In holding that the Plaintiff forfeited his right

to maintenance and cure by reason of alleged wiliful disobedience of

orders, and eulpable failure to perform hie known duty in the service

of the ship.

4, In holding that the Defendant diecharged its liability

for expense of eure by tendering Plaintirr « tioket of admission

to the Marine Hospital of the United States Publie Health Service.

5. In failing to award Plaintirr Judgment de novo in

Admiralty.

6. In holding that findings 9-14 inclusive are supported

by substantial evidence whereas it should have found the contrary

thereof,

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PETITIONER Is ENTITLED TO JUDGMENT UNDER ALI THE FACTS AND CIRCUMSTANCES

OF THIS CASE FOR MEDICAL CURE AND MAINTENANCE, WHICH RIGHT ARISES OUT OF

THE MARITIME EMPLOYER-EMPLOYEE RELATIONSHIP, IRRESPECTIVE OF NEGLIGENCE

OR FAULT ON THE PART OF THE RESPONDENT, AND IN THE ABSENCE OF WILLFUL

MISBEHAVIOUR, VICIOUS CONDUCT, OR WILLFUL DISOBEDIENCE oF ORDERS BY THE

PETITIONER.

(2) On an Appeal in Admiralty to the Court of Appeals

Petitioner is entitled to a trial ae _nevo,

BP RC H 200 U.8. 619

104 F, $66 (7th cca)

Fraps t—Orgat Lakes Tranait Corp, 5 Fea, (2a) 58

;

(b) Findings and @onelusions adopted practically en tote

as submitted by Proctore are not entitled to the same

weight and dignity as Findingo and Conclusions repre-

senting the unfettered and independent judgment of the

trial judge.

[

2 Tt C D

The Severance 152 F, (24) 916, cert.den, 328 U.8. 853 |

(e) Petitioner is entitled to maintenance and cure irre-

spective of any negligence on his part,

Mullep rayFits Sigone & Connell Dredge & Desk do,

Aguilar v, Standard 01] Co. 318 U.8. 72%

(4) Petitioner was not guilty of any vicious misconduct,

Culpable negleet of duty, willful disobedienee of

orders such as to deny him his right to maintenance

and cure.

U - %0U.8. $2

SORT COW ET CE 1817. (2a) 697

(e) Petitioner is entitiea to interest on this Appeal.

M (1896) 75 F. 7 (CCA 9th)

128 FP, 963 (D. Dei.)

1898) 223 F. 381

) 83 F. 720 (cOA btn)

(f) A disabled seaman ie not obliged to accept an offer of

treatment in the Public Service and Marine Hospital but

may require the vessel to fulfill its obligation in ref-

erence to care and medical attention.

48 - shinpdng - Par. 175

- 102 Pa. 212, 48

- L.A.R, (N.8.) 77

209

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(g) The Court of Appeals may allow the Petitioner his costs

in the District Court as well ae Appellate costs.

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PLAINTIPF-PETITIONER IS ENTITLED TO JUDGMENT UNDER ALL THE FACTS AND

CIRCUMSTANCES OF THIS CASE FOR MEDICAL CURE AND MAINTENANCE, WHICH

RIGHT ARISES OUT OF THE MARITIME EMPLOYER-EMPLOYEE RELATIONSHIP,

IRRESPECTIVE OF NEGLIGENCE OR FAULT ON THE PART OF THE DEFENDANT~

RESPONDENT, AND IN THE ABSENCE OF WILLFUL MISBEHAVIOUR, VICIOUS CONDUCT,

OR WILLFUL DISOBEDIENCE OF ORDERS BY THE PLAINTIFF-PETITIONER.

: ome

The District Court and the Court of Appeals adopted in toto

the findings of fact and conclusions of law submitted by the Defendant-

Respondent herein, and entered its final decres thereon, thereby en-

bodying Defendant's theory of the case that the Plaintiff herein was not

entitled to maintenance and cure, because (1) Plaintiff forfeited this

right by alleged wiliful disobedience of orders and Sulpable failure to

perform his known duty in the service of the ship, {2) that the Pleintire

was required to go to the Marine Foepital of the U.8. Public Health

Service and accept its services and thereby avoid the expense of cure

and maintenance on the part of the Defendant employer, and (3) there is

no proof in the record of any amount owing Pleintiff for oure and main-

tenance.

On am appeal in Admiralty to the Court of Appeals, the

Appellant is entitled to a trial de nove, North Pac, Coast R.Co, v.

Hall, 200 U.8. 619; Gilehrist v, Chicago Ine, Co, 104 F. 566 (7th Oca);

Prowe vy, Great Lakes Transit Corp, 5 Fed. (24) 58; The Lydia 1 F (2a) 18.

Although the District Court is privileged to seek such aid, as

it thinks desirable, findinge and conclusions adopted practically in

toto as submitted by Proetors ere not entitled to the same weight and

dignity as findings and conclusions representing the unfettered and

independent judgment of the trial judge.

Matton 011, Srapetormer Corp, v. The Dynamic

The_Sevarance 152 F.. (24) 916, cert. den.

328 U.8. 853

A seaman's contract contemplates the applieation of the

General Maritime Law, and the lew confers the right to maintenance

and cure in case of injury incurred irrespective of negligence, while

h@ is in the ship's service; the seaman's Admiralty rights to main-

tenance and cure have a scocpe at broed es his employment.

The United States District Court in connection with the former

Appeal in this case made a memorandua decision on the trial, and insefar

ae it relates to the proposition of maintenance and eure, said:

"Plaintiff offers a third objection to the

motion for iirected verdict. He contends

that Plaintiff was entitled te verdiet for

medical cure and care and maintenanee which

Fight arises out of the maritine employer-

employee relationship irrespective of negii-

gence or fault on the part of the Defendant.

"However, Plaintiff has disqualified himself

from ell rights to maintenance ani cure. He

disebeyed his oriers, disregarded the duty

Placed upon him ae a deckhand to his ship, his

shipmates and to himself. He euffered injury

as @ result; he cannot throw the consequences of ‘

his own dereliction his employer. An in- ‘

jured seaman is entitled to his expenses of :

Maintenance and cure, if any, arising out of

maritime injury, irrespective of n ligenee or

fault of the ship-owner so long as also is

free of conduct which renders the placing of

the responsibility upén the ship-owner contrary

to the purposes for which the concept of main-

tenance and cure was designed, that is, so long

as he is free of misconduct or indiseretion

or of disebedience of ordere and aisregard of

his seaman'a duties ............... eeeasensenass

"Plaintiff has disqualified himself from all rights

to maintenance a cure are a consequence of his

own misconduct, ®

Before the United States Court of Appeals, with referenee to :

this preposition of the denial of Plaintiff's right to recovery for

maintenance and cure, the Plaintiff argued in his Brief, as follows:

"Count III of the Complaint demanded Five

Thousand Dollars ( 5,000.00) damages for

expense of Piaintiff's maintenance during

the time he was recovering from his injuries,

and for failure to pay same to hin.

"Nowhere ie there any defense offered to this

Gemnt of the Complaint by way of evidence....

"U.8.C.A, 7th in 172 F. (24) 601, in thie very

Gase, held that the Plaintiff had a right to inolude a

octane es oe an ene ery

7 oo -—— iets

= S35 18 3DVd Nuva

4OOS8 NI TvolLasa GQNNOg 39vd SIHL

en ne EN INI Se

Gount for his maintenance and for cure along

with the Count for his eause of action under

the Jones Act, irrespective of diversity of

citizenship. The Court further held that

Plaintiff's right to maintenance ‘is not a

matter of election; the seaman has it in any

event regariless of proof of negligenee or of

unseaworthiness.' The Court held that care and

maintenance could be obtained in the same action

for indemnity under the Jones Act,

"The right of a seamen to maintenance and cure

arises irrespective of any negligence or fault

on the part of the shi er. n

(1942), 318 U.s, » the

ourt he a shipowner's liability for

maintenance and cure extends to a seaman who

departing or returning from shore leave (th

without any duty to perform for the ship while

On leave) is injured while proceeding without

misconduct across a dock or other property which

was the only available route between the vessel

ani the public atreet. Liability in such oage

does not depend upon whether the shipowner was

negligent. In this ense one sailor fell into a

diteh while leaving the dock and another while

croseing the dock wae struck by an automobile

driven by a stranger, and in his suit he asked

for 310,009. for maintenance ani cure from the

shipowner. The United States Supreme Court re-

versed a decision of the District Court and the

C.C.A, diemissing this cause of action,

ee 4

Oe aed

"JUDGE RUTLEDGE in speaking of m=intenenee ant cure

at Page 730, eeys:

Ce i ee at ae ieee ee

a Se <

‘Created thus with the contract of employment,

the liebility unlike that for indemnity or

that later oreated by the Jones Act in no

sense is predieated on the fault or negligence

of the shipowner. Whether vy treditionel atend-

ards he ie or is not responsible for the injury

or sicknese, he is lirblo for the exnense for

curing it ap an incident to the Marine Employer-

employee relationship, 80 broad ie the ship-

owner’ e obligation that negligence or acts short

of culpebdls miseoniuet on the feamnan'as gk will

not relieve him of the re naibility. eterson

& (ft) 645 (D.C.) See sites

F. 92 (D.C.); & 1

23. » 3 Fed, Case, 129 VU.), onceptions

of contributory negligence, the fellow servant

Goetrine end aseummtior of risk have no place

in the lisbility or defense against it. Only

some willful misbehaviour or deliberate aet of

indiscretion suffices to deprive the seaman of

hie protection. The Ben F The tra-

ditional instances are veneres] disease, and

injuries received as a result of intoxicetion,

though on occcasion the latter hae been qual if led

in reeognition of the known predisposition of

sailors ashore. (See the i C

840 (D.C.). Other recent Ccasee disclose a tene

‘dency to exnand there exceptions, !

a Rare Sa

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"The Court here saye that MULLEN, the Plaintiff, dis-

obeyed orders ...... The Court overlooked the law es

ret forth in the aaess hereinbefore cited to the effect

that contributory negligence 4oes not bar a recovery in

aotions uniter the Jones Act. There in no evidence of any

‘misconduct or indiscretion or of disobedience of orders,

end Aleregard of hia seaman's duties’ on the part of the

Plaintiff, MULLEN .........

"Any end #11 nets on the bert of MULLEN at the time of the

accident in question could not, in any way, be bro t :

within the rule that hie acts were of such a wilifu and

nalicious nature, so ne to intleate elnost moral turpitudg

in bringing about the injuries to himself, go as to de-

prive himesif of the right to maintenance, He 114 noth- |

ing to bring about his injuries, which would fall within |

the rule of any of the Cas@en Cited by Defendant for thie

proposition.

;

"Judge Sullivan in holding that Flaintiff-Appellant, MULLEN

wae Alaqualified from 011 hie tights to maintenance and i

cure *# 2 consequence of his own misconduct cites no au-

thority for thie ruling. (?r. 267-268), There is a line '

of cases thet deal vith the willful misconduct of seamen .

in bringing about their own injuries, but none of these

Onsen are applicable to the factual situation in the case —

at bar.

"MULLEN wae not drunk. MULLEN was not Giseased, MULLEN

was fuilty of no willful mi econduct contributing to his i

injuries in the nature of the type of eonduet which would —

seve the employer harmlese for maintenance, '

“ P S.5. ¢ 101 F. (24) 697, the |

seaman fell down a er while drunk. of course, in the

Case of such willful misconduct, there is no responsibil’

on the employer to vroviie the seaman with Maintenance and

Cure. Contributory neglizenee is no Jefense under the

Jones Act, nor joss contributory negligence on the part

of the seaman absolve the employer from hie odligation te

proviie mnintenanes ani eure,

“Gross misconduct or negligence on the svaman's part may

defeat hin reeovery, but thet decree ia seldom found by

the Courts. ‘By the Maritime Lay, the mere orii

negligence of the seaman though thet be the sole Gause of

the aceident, sakes no difference in his right to be cured

at the ship's exnense, ond to his wages to the end of the

voyage.' ¥ -ven the ine

ured seeman’s own alcoho ic esturation is sometimes over-

cooked in recognition as Justice Rutledge says, ‘of «

Classic predisposition of sailore ashore. !

, 316 U.S. 72h,

In Warren ve. United Staten, 30 U.S. 523 (Feb. 1951) the Peti-

tioner, a messman on a ship owned by the United States went on ashore on

leave while the vessel wes et Naples. He and two other members of the

Grew did some sightseeing, crank a bottle of wine together, and then apent

one end one half (1-1/2) hours at a tance hall. A room adjoining the

dance hall and overlooking the sea hat French doors opening onto an un-

protected ledge. Petitioner stepped onto the ledge, grasped an iron rod

EaRERARIEnenennemeeneeceniindaiammnataiaieies aucieademmceimamtaeats aeeamamaeaehenanmeaaiadineadiaiaedbaanmmeimatiiamatameasaamne |

NYHL Aaa 7g 39Vd Muva

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—.

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4OOS NI TvolLasa GQNNOs 3°9vd SIHL

which seemed to be attached to the building and leaned forward te

take a look. The iron rod broke off and Petitioner lost his balance,

fell and broke his leg. The Supreme Court held that the Petitioner

was entitled to recover expenses of maintenanee and cure from the

United States and that his injury was not due to a Willful act, de-

fault or misbehaviour, and that recovery was not barred thereby.

The United States District Court had awarded maintenance and cure to

him. 75 F. Supp. 210, 76 F. Supp. 735. The Court of Appeals dis-

allowed it, 179 F. (24) 919 ana on certiorari to the United States

Supreme Court the deeision of the Court of Appeals was reversed, 340

U.S, 806.

At Page 528, Mr. Justice Douglas said:

"The standard rescribed is not negligence but

willful misbehaviour. In the Maritime Law it

has long been held that while fault of the

seaman will forfeit the right to maintenance

and oure, it must be ‘some positively vicious con-

ae such ae gross negligence or willful disobedience

or orders,

;

1) Sumn. 195, 206.

“tre AE ta Standard 011 do, 318 U.S. 724, 731, we

sta rule as fol lows:

‘Conceptions of contributory negligence, the

fellow servant doctrine, and assumption of

riek have no place in the liability or de-

fense against it. Only some willful misbe-

haviour or deliberate act of indiseretion

suffices to deprive the seaman of his pro-

tection. :

“* * * The Petitioner was Plainly negligent. Yet we would

have te strain to find the element of Willfulness or its

In the case at bar, this Court hae found that MULLEN failed

to prove any negligence on the part of the Defendant, and no evidence

of unseaworthiness, and that he failed to sustain his burden of proer

on his claim of negligence. The Court further found that his injury

was Caused solely by his failure to perform his known duty as a

. ww Oe eee ee

oer ees

- 19 «

——— ~~

7 Sew eee- <es ene

> cup oe

OME IVSILYEYSA GNNOG 39vd SIHt

deokhand; that he did not shut the galley door when he saw thet

the tug was going out into the lake in a heavy sea and that his own

negligence was the proximate cause of his injury. This Court has not

found that he was guilty of any “willful disebedience of orders and

culpable failure to perform his known duty in the service of the

ship® as set forth by the District Judge in his memorandua opinion as

the basis for his findings ani the entry of the Decree against the

Plaintiff.

There is no evidenee in the recor to support any charge

of “willful® disobedience or “eulpable*® failure on the part of MULLEN.

This Court in its decision 191 F. (24) 85 appeared to have

adopted this view of the law as to Plaintifr's right to maintenanee and

cure as contended for by the Plaintiff.

The Defendant-respondent on the former Appeal, 191 F. (24) 85

argued that the Plaintiff-petitioner wae not entitled to maintenance and

cure beeause on the evidence, he was guilty of misconduct of the degree

and kind deseribed in the opinion of the United States Supreme Court

in Warren vs. U.S. 340, U.8. $23 and that hie right to maintenance and

cure was forfeited because his conduct came within the exception to the

general rule which entitled him to maintenance and cure. The Court of

Appeals 4id not adopt thet view of the evidenee, but held that he was

entitled to his maintenance ani cure provided he produced evidence show-

ing the amount due him therefor.

We have no quarrel with the statement of the law as set

forth in the opinion of the Court of Appeals, but our position is that

there are no facts in evidence in the case at bar to warrant the appl iea-

tion of that prineiple.

The Plaintiff-respondent ealle the Court's attention te the

following evidense from the record upon which he bases his elaim te

Findings of Fact and Conclusions at Law in his faver on this issue and

Contrary to the Findings and Conclusions of the Court below:

PRR. “EMD ss Maiden

ee as

PS, Se ha Yad OH

i ~~ re

enn |

—sSewrwwa aaa i aaa

The Plaintiff, after his injury, wae treated at Saint

Catherine's Hospital at East Chieago, Indiana and was aiecharged

therefrom on “out-patient” treatments, Octoder 8, 1947. Hospitalisa- —

tion and the physician who treated Plaintiff were furnished ani paid

for by the Defendant. At page 21 and 22 of the record, Plaintirr

testified as follows:

"After taking the etitehes out, I took heat treat-

ment, what they call heat, some machine there or

something. They told me to bathe it in hot water,

at home. After I left the hospital on October 8th,

I went back four or five times later upon the lith

or 12th, the first time; then I had to go out every

other day. The last day I went out there wae the

day after Christmas, December 26th, when I got a re-

lease from Dr. Cole. He wanted me to go to work be-

fore that, so I asked hin, ‘Well, you have got "a give '

me a release of some kind, so I ean go.' 80 he 4

on the 26th, the day after Christmas. }

"I made about three tripe a week, so that would be about !

twelve a month. It cost $5.01 for a complete round trip |

from Chicago to Indiana Harbor, street car fare and all.

After the accident, I tried to go to work the following

April for Great Lakes Dredge & Doek Compeny as a fire-

man. Well, the first —- there was no engineer there,

and I 414 not do any work. I just got paid for it, but

there wae no firing on the firet day. 80, I don't know

what happened. But the second day I came out and tried

to Work, and could not make it. My hand hurt. I could

not pick up a shovel, could not pick up the slide bar,

the hose and stuff we use to clean fires.

RE REO OTE PL I AOC IE BE

Page 24 - "The first time I 7 oa to work, to continue to

work steady was May 17, 1 °

Page 30 "In 1947 and 1948 it cost me $5.00 per day for food and

maintenance or support. No pert of that support or main-

tenance has been paii to me by Fitr Simons Connell Dredge :

& Dock Comprny. '

Page 56 "I 414 not work in the winter of 1947-48 because there was

no Gall for me, and I was not able to. ®

The Defendant offered no evidence to refute these facts

testified to by the Plaintirr.

The record Conelusively shows that the Plaintirr made three

(3) trips per week from the City of Chicago to Indiana Harber te

December 26, 1947, a total of thirty-three (33) trips at $5

trip for a total of $165.33.

-01 per

This is hie expense for oure or care.

Bec uct agmmgepes ts as nen RR RRNA RE: eR

NaHtl G33 78 39va Muva

4OOS8 NI TvolLasa GNNOg 39vd SIHL

re ee | .

; The evidence conclusively shows that he was injured on |

September 29, 1947 and was able to work for the first tise on

May 17, 1948 and wae disabled and required to maintain himself fer

a period of 232 daye at $5.00 per day for maintenance, for a total of

$1,160.00.

The Court of Appeals should have made findings of fact

awarding the Plaintiff a recovery for maintenance and cure and pro=

viding by Decree the recovery of interest at 7% upon the same. Inter-

est is commonly allowed on appeal.

Hagerman ve. Moren (1896) 75 F. 97 (CCA 9th)

The Glenoehi}) (1904) 128 F. 963 (D.Dei.)

The Gladiator (1898) 223 F. 381

The Axby (1897) 83 F. 720 (CCA 4th)

The law ae it exists in the United States apart from

treaties and statutes may be described as follows:

It is a general rule of Maritime Law

that a seaman falling sick or injured

while im the service of the ship is

entitled to maintenance and cure te be

supplied by the Ship Owner and Master.

The negligence of the seaman does not

deprive him of this right; nor does he

lose it by a violation of his shipping

Articles which would justify his dis-

charge.

The Court of Appeals takes the position that in reference to

maintenance and cure, “expenses that would have been avoided by use of

the free services of the Maritime Hospitals of the U.8. Public Health

Service cannot be recovered as maintenance and cure. *

We respectfully aubmit that it is in error.

"Statutes establishing Public Health and

Marine Hospitals maintained by the Federal

Government do not repeal or teke away the

seaman's right under the Maritime Law to be

cured at the expense of the ship, but are

auxiliary thereto. The right is incident to

his contract of employment. Aecordingly, a

disabled seaman is not obliged to accept an

7 - 22 «

ei lk

ee ~~.

: eee. = ee as

4HOOEG NI “IWOLLYBA GNNOg 390vd SIHL

an i i

offer of treatment in « Public Service and

Marine Hospital, but may require the vessel

to fulfill ite opligation in respect to care

and medical attention. *

48 Am, Jur, - Shipping - Par. 175

Holt ve, Cummings - 102 Pa. 212, 48

Am. Rep. 199

Anno, 4 - L.A.R. (N.5.) 77

2Ann, Cag, 209

This Court may allow the successful party in the Appeal,

costs in the District Court ag well as Appellate costs.

Tt - B D P

On the basis of the undisputed Affidavit as to said costs

appearing in the record herein, Plaintiff-netitioner is entitled te

total costs in the sum of $280.88 for costs heretofora accrued and

due exelusive of the instant Appeal.

HC.

The evidence in thie Case, clearly establishes all the

allegations of Counte II and III of the Complaint, imposing liability

upon the Defendant-responient for breach of the duties as set forth

therein, all of which requires that the Judgment below should be re-

versed ana judgment ordered in behalf of the Plaintiff-petitioner

in the oun of $165.33 for medical expense and cure; $1,160.00 for

maintenance and $280.°5 for costes ex@lusive of the instant Appeal, or

® total of $1,606.21, together with interest at the rate of 7% per

annus from September 29, 1947 to the date hereof.

The case should be remanded to the Jourt of Appeals with

directions to enter Judgment as aforesaid.

RESPECTFULLY SUBMITTED,

SRA ONLY FONTS

: IRVING BREAKSTONE

: Attorney for Plaintiff-petitioner

ee nC ect? NO

riIyep

es NY

rE >

IN THE

apreme. Court of the United States

Ocroser Term, 1952

* a io ee Ee coe on OR

/ ft x Suprenm> Court, U,

No. 411

CHARLES MULLEN,

Petitioner,

vs.

4 ITZ SIMONS & CONNELL DREDGE & DOCK COo.,

of a corporation,

es Nana

ON_PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

iti Linh ag ais

| __ BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

EDWARD B. HAYES,

135 S. La Salle Street,

Chicago, Illinois,

Attorney for Respondent.

The Scheffer Press, Inc.—ANdover 3-6850

SOA he

7 D i

Val?

——_ Sage RO ae nS INES CER TET ONS

INDEX

PAGE

GNI cicicsicniceiessdslpbiaictcaniagiibahilt cate eect Sot Rac i

ION ORO siscoscncstsnsicrisiinnicinttinseapcamessidiisbanispiendiniis nssiaas 1

BI I RD ERT RN A OTE 4

AIDIIIOINN: :ssnassisictineaniiicihdibiaa ete oN oe 24

Crrations.

CASES:

Alabama Power Co. vy. Ickes, 302 US. 464, 474

CUIINP B.'aiahensnssesnciabninssbaishatecblnntceanasbstanigsueste niece cc 9,12

Bailey v. City of New York, 153 F. 2d 427 (CA 2,

BOD Sniacecca ase en ee 21

Barlow v. Pan Atlantic S.S. Corp., 101 F. 2d 697,

GSIPUE - :denibaabsicapnedcbicebnelabieimbse babi linia lta aac aC 10, 17

The Ben Flint, 3 Fed. Cas. 183, 195 (D.C. Wis.).... 17

Calmar S. S. Corp. vy. Taylor, 303 U.S 525, 531

SURIUND ; . acibscecististaipaianbdiinldaeaildaaiiniiestiasiatant dala a al 9, 21

The Carib-Prince, 170 U.S. 655, 658 (1898)....0....... 9

Chandler vy. The Annie Buckman, 5 Fed. Case No.

SE Sats. Wee ec iitteasaistadasenttbietsehentantdeacencs 17

The Lroquots, 194 U.S, 240, 247-248 (1904)... 12

Just v. Chambers, 312 U.S. 383, 384 (1941)... 9, 12

Marshall v. Lnternational Mercantile Co., 39 F. 2d

ee CE Oe Be iicitatsinenssinieinicanetotietinion 21

The Mexican, 78 F. 2d 819 (1935).........ccccccccsssosesesees 17

Mullen v. Fitz Simons & Connell Dredge & Dock

Co., 199 F. 2d 557, 5G0-5G61 (1952)........ccccccossccess 15, 21

Mullen vy. Fitz Simons & Connell Dredge & Dock

Co., 191 F. 2d 82 (CA 7, 1951); cert. denied 342

ie ee eae eae 2

Tawada y. U. S., 162 F. 2d 615 (CA 9, 1937).......... 17

PAGE

Towson v. Moore, 173 U.S. 17, 24 ES 13

U. S. v. Loyola, 161 F. 2d 126, 127-128 (CA 9,

1947)

Warren v. United States, 340 US. 523, 528

(1951) 10, 17

Ruts:

Supreme Court Rules, Rule 38(2) 9

IN THE

Supreme Court of the United States

Octroser Term, 1952

No. 411

CHARLES MULLEN,

Petitioner,

vs.

FITZ SIMONS & CONNELL DREDGE & DOCK CO.,,

a corporation,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

OPINION BELOW.

The opinion of the court below is reported in 199 F. 2d

557 (1952). The opinion of the district court is not reported

but is set out at page 9 of the transcript prepared for the

appeal below.

A previous appeal followed trial of the cause and judg-

ment for respondent by directed verdict on all counts of

petitioner’s complaint, including the counts for maintenance

and cure at issue here. The Court of Appeals sustained the

directed verdict for respondent on petitioner’s claim for

rio:

Ray Bite ey,

- fn

oe sad Bak

ee iNT Ely

hi ald DPA ah Pen

ase

Beh eS

Jones Act indemnity, holding that injury was caused, no

by negligence of respondent, but by his own failure to per

form his known duty as deckhand. Mullen v. Fitz Simon

€ Connell Dredge & Dock Co., 191 F. 2d 82 (CA 7, 1951)

cert. den. 342 U.S. 888 (1951).

On the second and third counts, for maintenance (sub

sistence during disability) and cure (medical care an

attention), the Court of Appeals stated that “no proof ap

pears of any amount owing plaintiff for eure and main

tenance” but it remanded these counts to the trial cour

for the making of findings of fact and conclusions of law o1

the admiralty side, where alone there was jurisdiction 0

these admiralty counts in the absence of diversity of citi

zenship between the parties.? This Court denied certiorar

to the present petitioner. (342 U. S. $88 (1951)

On remand after argument and submission of briefs

the trial court again, this time as an admiralty tribunal

1 The Court of Appeals held:

“We believe that the trial court properly directed a verdict o1

count one of the complaint, because viewing the evidence in the ligh

most favorable to plaintiff, together with all reasonable inference:

and deductions which may be drawn therefrom, Giliberto v. Yellov

Cab Co., 7 Cir., 177 F. 2d 237; Reno Sales Co. Inc. v. Pritchar

Industries, Inc., 7 Cir., 177 F. 2d 279, it appears that his injury wa

caused solely by his failure to perform his known duty as a deck

hand. He did not shut the galley door, when he saw that the tus

was going out into the lake in a heavy sea. The evidence convincing]

shows that his own negligence was the proximate cause of hi

i ‘a

Final judgment has now been entered on Count I for Jones Act indem

nity and petitioner has submitted thereto; no question involving tha

count was raised in this second appeal, and none is raised by the presen

petition.

2 By its direction of a verdict in defendant’s favor on Counts 2 and 3

the trial court had found that on all the evidence most favorable ti

plaintiff there was no basis for recovery of maintenance and cure. Ih

remanding, the Court of Appeals did not express disapproval (indee

it stated that no proof of any amount owing for cure and maintenance

was presented) but merely found that the court, sitting as an admiralty)

tribunal, should enter whatever finding the evidence might warrant

giving petitioner the pe gpm to offer further evidence, and re

manded in order that that procedure could be carried out. Petitione:

offered no further evidence. [Finding No. 14]

ORCI ee

LEO BERLE PIE

—_—

: ae =

held that no right to maintenance and cure had been made

out. This second decision adverse to petitioner’s allegations

of claim for maintenance and cure was made upon the same

record as before since petitioner did not offer any further

evidence. No additional evidence was offered nor did peti-

tioner point to any new evidence, although as the findings

show (Finding No. 14) he was challenged to do so.

On the de novo appeal below, the Court of Appeals con-

curred in the admiralty findings and decision of the ad-

miralty trier, and it is upon those concurrent findings of

fact of the courts below that petitioner seeks certiorari here

to review the rejection of the admiralty claim to main-

tenance and cure.

eT ee ee

ye ae

wpreeaes

$i 1

iia ites si Ata tba Wid ah omatcata nad siee 5 1c

ARGUMENT.

The matter involved here is an admiralty claim for

maintenance (subsistence during disability) and cure (med-

ical care and attention). N othing else was asserted before

the Court of Appeals upon the last appeal, upon which

this petition for certiorari is predicated. Nothing else is

asserted here.

The total amount claimed by petitioner to be in issue,

aside from interest and costs, is $1,325.33. (Petition, p.

13).

The legal reasons why his claim was denied below are:

1. Maintenance and cure is not awarded when the in-

jury in question is caused solely by the seaman’s own

wilful disobedience of orders and culpable failure to per-

form his known duty in the service of the ship.

2. Petitioner’s hospital and medical bills were paid

for him, and no proof appeared of any amount owing

petitioner for maintenance and cure.

The concurrent findings of the courts below read as fol-

lows (Tr. 15 et seq.):

‘Plaintiff is a seaman with thirty-three years ex-

perience on the Great Lakes. On September 22, 1947,

he was employed as an extra by defendant, working

as a deckhand on the tug boat John J. Roche, which

was engaged in towing loaded seows from Indiana

Harbor into Lake Michigan for dumping. The tug

was about 84 feet long overall, 20 feet wide, 1214 feet

in depth, of which 14 inches was above the water line.

Above the deck’s level was a deck house and forward

ao 5 —

a pilot house. The deck house had several doors

which, when closed, kept out the lake water. Among

his duties, the deckhand was supposed to close these

doors in rough weather. In the middle of the deck

house, on the starboard side, was a fire hole door,

in addition to the door to the pilot house. Next, astern,

was an engine room door, and farthest back, at the

end of the deck house, was a galley door. Inside this

door, steps led down to the galley below the deck, a

hand rail was provided for use on these steps. The

galley door was about three feet wide and five feet

high. It was made of steel and swung outward, with

hinges on the side toward the front of the tug. A

hook attached to the deck house wall could be hooked

over the top of this door to keep it open.

‘2. A captain, engineer, two firemen, and deck-

hand, as required by the steamboat inspectors, made

up the crew. Plaintiff was the deckhand. The boat

was regularly inspected by the United States Steam-

boat inspectors, as required by law.

‘*3. Handling mooring lines, helping the fireman in

dumping ashes from the boiler room, and closing

hatches, when necessary to keep the tug from taking

water in rough weather, were among the duties of the

plaintiff as deckhand.

‘*4. The tug was docked in Indiana Harbor, an

artificial harbor, formed by breakwaters facing the

lake with a gap, through which vessels pass; near the

center of the Harbor. At the gap of this inner break-

water, a green light is fixed. A second breakwater

projects directly into the lake proper at the end of

which is fixed a white light. Going toward the lake,

after passing the gap in the inner breakwater, marked

with the green light, a ship is in the lake proper.

Passing beyond the breakwater with the white light,

puts the vessel farther out into the lake.

“5. After arriving for work at the Indiana Harbor

dock on the morning of September 29, 1947, plaintiff

saw that the lake was heavy and rough. From the

ae ye

dock, plaintiff could see the water spray striking

top of the catwalk astride the breakwater enclos

the harbor. Within the harbor the water was chop

The number of scows that can be towed on a gi

day depends on the weather. The condition of

weather can best be determined from an examinat

out in the lake itself. This is called ‘‘going out

look at the weather”. Plaintiff had gone out to |

at the weather on tug boats many times before.

‘6. A civil engineer employed by defendant, ¢

a scowman, who rode loaded scows, accompanied —

crew of the Roche when the captain gave the order

go out and look at the weather. When the whis

signal was given, plaintiff cast off his mooring lin

one of the firemen cast off the other line, and the t

proceeded toward the breakwater gap which afford

access to the lake. A standing order aboard the Roc

required the deckhand to close up the tug in hea

weather. Plaintiff was told about the standing ord

and also testified it was his job as deckhand to

that. He further testified that the tug should ha

been closed up in weather such as he could see fre

the dock before he started out into the lake. T

captain testified that he told plaintiff personally th

standing orders required him to close up in hea’

weather. There was no contradiction to the testimo:

given by the captain as to the standing order.

“7, After passing the gap in the breakwater, t!

Roche entered the lake and ran into a heavy sea, whi

impeded its speed. The decks of the Roche we

awash from waves of water, At times, the waves h

the breakwater causing a spray of water forty to fif

feet high. Plaintiff could see that the tug was goir

beyond the end of the breakwater projecting into tl

lake. As the tug proceeded, plaintiff said he ws

dumping ashes into the lake and when it became tc

rough to remain on deck he headed inside by way «

the galley door, that being the last door astern o

the starboard side. A wave of water followed him i

—_ = =.

pax, Sole

as he stood on the first or second step leading down-

ward to the galley, with his hand between the- door

jamb and the hinged side of the galley door. While

in this position the door closed, pinching his right

hand. No one on board witnessed the accident. A

hand rail was provided for holding on, located on the

steps directly in front of plaintiff as he stood there

facing forward. Plaintiff said he never used the hand

rail and he did not use it on this occasion. Plaintiff

said the accident happened as the tug was turning

around, stating that he jumped into the galley stair-

way before the tug began to turn.

“8. Viewing the evidence in the light most

favorable to plaintiff, together with all reasonable

inferences and deductions that may be drawn there-

from, it appears that his injury was caused solely by

his failure to perform his known duty as a deckhand.

He did not shut the galley door when he saw the tug

was going out into the lake in a heavy sea.

; ‘“*9. Besides the uncontradicted standing order,

5 the captain told Mullen on the very occasion to close

4 up the tug.

‘10. While Mullen said he was dumping ashes, the

two firemen, one of whom had no connection with

defendant at the time of trial or for some years there-

tofore, who would have known if ashes were being

dumped, and with one of whom Mullen claimed he

was working, testified that no ashes were dumped

that day. It does not appear from the weight of sub-

q stantial, credible evidence what Mullen was doing

; out on deck. The ashes were in the fire hole, which

i had its own door.

**11. When plaintiff was employed he did not live

on the tug, but at home. He was an extra worker and

} 1 All of the findings set forth were made by the courts below sitting

in ae Those which precede this footnote were made by the

| admiralty trier and the Court of Appeals on uncontradicted evidence

(and had been made in another connection in disposing of the Jones Act

_ indemnity claim, which is no longer before the Court, not having been

' involved in the appeal from whose result this petition for certiorari

arises.)

Pret

twas) ose

PELL RAE NE RSS EDS INNS ANG the aA ai) id ee nah eb tipbon ek

his employment was uncertain. On the day of the

aecident, September 29, 1947, the tug Roche was

working out of Indiana Harbor and plaintiff was hos-

pitalized there. Tug work is seasonal. The plaintiff

testified, referring to the work season, that this was

late, that the job could end at any time, and if it did

he would probably be out of work for quite a while,

Ife left the hospital, he says, on or about October 8,

1947, returning to his home in Chicago, Illinois,

where the services of the Marine Hospital of the

United States Public Health Service were available

to him for cure and maintenance without charge, as a

seaman. After leaving the hospital plaintiff volun-

tarily elected to visit Indiana Harbor, Indiana, from

time to time for treatment, consisting of the applica-

tion of heat, instead of availing himself of the Chicago

Marine Hospital, whose facilities were mentioned to

him by defendant in writing for anything he might

require as cure and maintenance. It does not appear

that the heat treatments would have prevented plain-

tiff’s employment, if there had been any employment

for him.

“12. Plaintiff says that at some time before De-

cember 26, 1947, his doctor wanted him to go back to

work because it would be good for his hand, but plain-

tiff refused to do so, insisting on some kind of a re-

lease which his doctor gave him on December 26, 1947.

Plaintiff did not work during this off-season, there

being no ‘‘call” for him. He did work as a deckhand

throughout the next season, and the season following,

at increased wages, but again he did not work in the

following off-season, there being no call for him.

“13. Plaintiff’s hospital and medical bills have

been paid for him, and no proof appears of any

amount owing plaintiff for maintenance and cure.

“14. Since the mandate plaintiff has been asked

to state his position and has been challenged by de-

fendant on brief to indicate any new evidence he might

desire to offer, or any new evidence not merely cumu-

_——

ve ren

lative or not available by proper diligence at the trial.

Plaintiff has not specified any new evidence.”

The ‘‘questions specifically brought forward by the pe-

tition for writ of certiorari’’* are three in number.

Two of the three are met by the rule of this Court in

admiralty and equity that it will not overhaul concurrent

factual determinations of the courts below. Just v. Cham-

bers, 312 U. S. 383, 384 (1941); Alabama Power Co. v.

Uckes, 302 U. S. 464, 474 (1937); The Carib-Prince, 170

U.S. 655, 658 (1898). The third is settled by a great body

of authority in the federal courts and by the decisions of

this Court (Calmar S. S. Corp. vy. Taylor, 303 U. S. 523,

531 (1938), no authority whatever to the contrary in this

Court or any lower federal court being cited by petitioner.

The questions brought forward are:

1. Petitioner asks:

‘‘Whether the ‘Plaintiff forfeited his right to med-

ical cure and maintenance at the expense of the De-

fendant-appellee by reason of evidence in the ease

substantiating that the injuries to the Plaintiff-appel-

lant were ‘caused solely by the seaman’s own willful

disobedience of orders and culpable failure to perform

his known duty in the service of the ship.’ ’’ (Petition,

p. 4)

In the supporting brief petitioner makes it plain that

he is not challenging the rule of law involved in the

question. On the contrary he says flatly that he agrees

with the rule applied by the courts below:

‘“We have no quarrel with the statement of the

law as set forth in the opinion of the Court of Ap-

peals, but our position is that there are no facts

2“Only questions specifically brought forward by the petition for

writ of certiorari will be considered”. Supreme Court Rules, Rule 38(2).

At WS RO: > Bah RT Masi

MRR SAR PERO ne

— po

in evidence in the case at bar to warrant the appli-

cation of that principle.” (Br. 20).°

The correctness of the legal rule (Warren v. United

States, 340 U.S. 523, 528 (1951); Barlow v. Pan Atlantic

S. 8. Corp., 101 F. 2d 697, 698 (CA 2, 1939)) is accord-

ingly not here in question. It is purely a question whether

there was some substantial evidence to show wilful dis-

obedience of orders and culpable failure to perform known

duty to ship. Both courts below found that the proof on

that point was plain—even on the undisputed evidence. We

have quoted heretofore in full the findings in which the

courts below concurred. Among others, concurrent find-

ings addressed to this point are:

“5, After arriving for work at the Indiana Harbor

dock on the morning of September 29, 1947, plaintiff

saw that the lake was heavy and rough. From the

dock, plaintiff could see the water spray striking the

top of the catwalk astride the breakwater enclosing

the harbor. Within the harbor the water was choppy.

The number of scows that can be towed on a given

day depends on the weather. The condition of the

weather can best be determined from an examination

out in the lake itself. This is called ‘going out to

look at the weather”. Plaintiff had gone out to look

at the weather on tug boats many times before.

“6. A civil engineer employed by defendant, and

a scowman, who rode loaded scows, accompanied the

crew of the Roche when the captain gave the order

to go out and look at the weather. When the whistle

signal was given, plaintiff cast off his mooring lines,

one of the firemen cast off the other line, and the

tug proceeded toward the breakwater gap which af-

3 Before the Court of Appeals the petitioner took the same position.

He stated:

“We have no quarrel with the statement of law as set forth in

the opinion of the District Judge (see Appendix) but our position

is that there are not facts in evidence in the case at bar to warrant

the application of that principle.”

PERIL ON ne I TOR Aa Se MMA NE I SET A NT

—]] —

forded access to the lake. A standing order aboard

the Roche required the deckhand to close up the tug

in heavy weather. Plaintiff was told about the stand.

ing order, and also testified it was his job as deck-

hand to do that. He further testified that the tug

should have been closed up in weather such as he

could see from the dock before he started out into

the lake. The captain testified that he told waintiff

personally that standing orders required him to close

up in heavy weather. There was no contradiction to

the testimony given by the captain as to the standing

order.

‘“*7, After passing the gap in the breakwater, the

Roche entered the lake and ran into a heavy sea,

which impeded its speed. The decks of the Roche

were awash from waves of water. At times, the waves

hit the breakwater causing a spray of water forty

to fifty feet high. Plaintiff could see that the tug

was going beyond the end of the breakwater pro-

jecting into the lake. As the tug proceeded, plaintiff

said he was dumping ashes into the lake and when

it became too rough to remain on deck he headed in-

side by way of the galley door, that being then the

last door astern on the starboard side. A wave of

water followed him in as he stood on the first or

second step leading downward to the galley, with

his hand between the door jamb and the hinged side

of the galley door. While in this position the door

closed, pinching his right hand. No one on board wit-

nessed the accident. A hand rail was provided for

holding on, located on the steps directly in front

of plaintiff as he stood there facing forward. Plain-

tiff said he never used the hand rail and he did not

use it on this occasion. Plaintiff said the accident

happened as the tug was turning around, stating that

he jumped into the galley stairway before the tug

began to turn.

‘**8. Viewing the evidence in the light most favor-

able to plaintiff, together with all reasonable infer-

— =

ences and deductions that may be drawn therefrom, it

appears that his injury was caused solely by his

failure to perform his known duty as a deckhand. He

did not shut the galley door when he saw the tug was

going out into the lake in a heavy sea.

‘**9. Besides the uncontradicted standing order, the

captain told Mullen on the very occasion to close up

the tug.’’

We do not understand that this Court will overhaul

the concurrent determinations of fact by the District Court

and Court of Appeals below. The authorities in this

Court are numerous and familiar:

‘*As the decision of the District Court was unani-

mously affirmed by the Cireuit Court of Appeals, we

do not think there is any such preponderance of evi-

dence as would justify us in disturbing their con-

clusions.”’

The Iroquois, 194 U. S. 240, 247-248 (1904).

‘*These findings were made, after hearing, by the

district judge upon undisputed or conflicting evidence.

The findings were not questioned by the court below;

and since they are not without substantial support

in the evidence, we accept them here as unassailable.’

Alabama Power Co. vy. Ickes, 302 U. 8. 464, 474

(1937) (An equity matter).

“Tn support of the judgment of the Cireuit Court

of Appeals, respondent asks us to review the evidence

with respect to the cause of claimant's injuries and

the breach of duty by the shipowner, contending that

the evidence was insufficient to support the findings.

Applying the well-established rule we accept the con-

current findings of the courts below us on these mat-

ters (citing auth.) and we confine our attention to

the question of the survival of the causes of action.”

Just v. Chambers, 312 U. S. 383, 384 (1941) (An

admiralty matter).

This Court’s doctrine as to the foree of coneurrent

findings of fact below, originating in admiralty and later

———— ee a eee ue, ge er ee Be

extended to equity (Towson vy. Moore, 173 U. 8. 17, 24

(1899) ), is particularly applicable to admiralty situations,

where it is often remarked that the subject matter makes

it peculiarly difficult for a reviewing court to substitute

itself on matters of fact for an experienced district judge

who heard and saw the witnesses.

If the question whether the facts support wilful dis-

obedience and culpable misconduct were one on which

this Court’s function were that of a trier of fact, we

should argue as we did by brief below, where our posi-

tion was sustained:

‘The trial court found that plaintiff was guilty of

‘wilful disobedience of orders and culpable failure

to perform his known duty in the service of the ship.’

That, he held, under the applicable rules of law, dis-

qualified Mullen from recovering maintenance and

cure—quite apart from the facts, also found, that

Mullen had failed to prove any amount due him for

maintenance and cure. The trial judge said:

“*Tt is my conclusion that maintenance and

eure, allowed to seamen injured in the service of

the ship regardless of the employer's negligence

or their own want of ordinary care, is not

awarded when the injury in question is caused

solely by the seaman’s own wilful disobedience

of orders and culpable failure to perform his

known duty in the service of the ship.’ (Tr. 13)

Plaintiff concedes, as indeed the authorities he cites

compel him to do, that this statement of law by the

trial judge is correct. (Br. 10) ‘But,’ he states, ‘our

position is that there are not facts in evidence in the

ease at bar to warrant the application of that prin-

ciple.’ (Br. 10) ‘There is no evidence in the record,’

he says, ‘to support any charge of “wilful” disohe-

dience or ‘‘eulpable” failure on the part of Mullen.’

‘Plaintiff closes his eves to the detailed recital

of the evidence contained in this Court’s opinion and

mandate on the earlier appeal in which this Court

held that plaintiff’s ‘injury was caused solely by his

failure to perform his known duty as a deckhand.’

That recital of the evidence spelled out in detail, on

uncontradicted evidence (and allowing Mullen every

reasonable inference), that Mullen was guilty of eulp-

able misconduct, indiseretion, wilful disobedience of

orders, and disregard of his seaman’s duties. The

Court of Appeals’ dispassionate statement is erystal

clear. Contrary to his orders and his known duty,

plaintiff let this small tug with only 14 inches above

the water line, go out with a deckhouse door wide

open into a ‘heavy sea’ that was throwing the spray

40 feet in the air at the breakwater, seeing the situa-

tion, knowing, as he testified, that the tug should have

been closed up, knowing it was his duty to shut the

deckhouse door, and let it continue with that door

wide open in that sea, that slowed the vessel down,

with her deck awash, all in violation of his standing

orders, until he was driven in by a wave that ‘filled

the door.’ What plaintiff did would shock any mind,

to say nothing of a seaman of thirty-three years ex-

perience who admits he knew better. Plaintiff saw

the situation, he said the door should have been shut

in such weather as he could see before he left the

dock, he knew his duty was to shut the door, he

knew his orders required him to do that, he knew

that if he did not shut the door the heavy sea that

was dashing spray 40 feet over the breakwater would

come into the vessel with its low, 14-inch freeboard—

his injury was caused solely by his failure to per-

form his known duty as a deckhand. He did not shut

the galley door, when he saw the tug was going out

into the lake in a heavy sea.’ (Our emphasis) (Mullen

v. Fitz Simons & Connell Dredge & Dock Co., supra,

84.)”

— 15 —

The decision of the court below upon the question of

fact presented was clear and direct:

“‘The plaintiff-appellant, in the case now under

consideration, was not entitled to maintenance and

eure from the defendant-appellee because the court

found that his injury resulted from ‘his’ wilful dis-

obedience of orders and eulpable failure to perform

his known duty in the service of the ship. (Auth. cit.)

* . *

**All the findings of fact made by the admiralty

court are supported by substantial evidence.”

Mullen ¥. Fitz Simons & Connell Dredge & Dock

Co., 199 F. 2d 557, 560 (1952).

The question petitioner raises here is whether these

faets present any substantial evidence at all. That is the

only quesiion on that point argued by the supporting

brief. (Brief, p. 20).

The trouble with the argument is that it overlooks

the two court rule, to say nothing of the mass of evidence

in the record.

Both courts below said Mullen knew the vessel ought

to be closed up in heavy weather like that he could see

from the dock and that it was his duty to do so. Both

courts pointed out that Mullen himself so testified.

Both courts found there was a standing order on the

vessel requiring the deckhand to close up in heavy

* For exam Tr.

mg. Is that a good idea to have waves coming in tugboats? What

is your view of that as a seaman?

A. It is a bad idea.

. By fasteni Qa - down. That is the deckhand’s job.

And y in weather like you could ra 7 were going

Q. Whose job is that?

a, * into before A ou ever started out from the

—16—

; weather. The captain so testified (Tr. 154) and no one

denied it.

Both courts found that a specific order to close up had

been given on the very occasion. The captain so testified

on cross-examination (Tr. 165) and Mullen denied it (Tr.

182).° The advantage of the trier passing upon such con-

; flicts in admiralty matters is frequently commented upon.

Both courts found that petitioner did not close the

; deckhouse door—neither before the vessel started out into

‘ the lake nor at any time while the vessel pressed for-

ward in the heavy waves, with her decks awash, for a

distance of a quarter of a mile past the last breakwater

protection.

Disregard of known duty (reinforced here by standing

orders) under circumstances recognized as calling for its

performance, is nearly the height of wilful misconduct.

‘‘He further testified that the tug should have been

closed up in weather such as he could see from the dock

before he started out into the lake * * * (191 F. (2d)

on 84). To close it up was his “known duty” (191 F,

(2d) on 84). To fail to do one’s known duty in cireum-

stances actually recognized as calling for its perform.

ance, with the consequence that the water was bound to

come into the low lying vessel in the heavy sea was a

reckless disregard of the safety of himself, his vessel,

and his shipmates. That it was in direct violation of

standing orders underscores the fact. A man who, in vio-

lation of his orders and known duty, acts in such disre-

gard of the safety of his vessel, is guilty of something

more than mere want of ‘‘ordinary eare”. This is not

the ordinary negligence in the course of faithful service

® References are to the record on the earlier appeal, which has been

incorporated in toto in the present record,

oe 17 a

to the ship, that admiralty will overlook. It is the con-

duct ‘‘prejudicial to the ship’s service” that the admir-

alty will not condone, and which, when it results in the

seaman’s injury, forfeits maintenance and cure. (The

Ben Flint, 3 Fed. Cas. 183, 195 (D.C. Wis.); Barlow y.

Pan Atlantic S. 8. Corp., 101 F. 2d 697, 698 (CA 2, 1939) ;

Warren v United States, 340 U. 8. 52: , 928 (1951)).

Petitioner would have it that to be disqualifying from

maintenance and cure, the seaman’s conduct must be sug-

gestive of ‘‘moral turpitude”. No court ever said so.

On the contrary, it is not the moral sanction, but the

‘prejudice of the ship’s service and discipline’ that

raises the disqualification. The Ben Flint, 3 Fed. Cas.

183, 195 (D.C. Wis.). It prevents recovery by a drunken

seaman who promotes fights with shipmates aboard ship

as in The Mexican, 78 F. (2d) 819 (1935), or by a seaman

whose incapacity from venereal disease leaves a ship

shorthanded, as in Chandler vy. The Annie Buckman, 5

Fed. Case No. 2591A (D.C.); or by a seaman who holds

himself out as fit when he has a disability disease, as

in Tawada vy. U. S., 162 F. (2d) 615 (CA 9, 1937). Sea-

men have heen said to be more prone to some types of

culpable misconduct; violation of their known duty is

not their common failing. But violation of orders and

known duty certainly is culpable misconduct, and culp-

able misconduct affecting the ship’s service is the test,

not moral turpitude. Barlow v. Pan Atlantic 8. 8. Co.,

101 F. (2d) 697, 698, and cas. cit.; Warren y. United

States, 340 U.S. 528, 528 (1951).

The courts below found on these matters upon un-

contradicted evidence that Mullen’s job was to close up the

vessel; that he saw from the dock that she should be

closed up in such weather; that the orders were to close

. as

a ee

— 18 —

up in such weather; and that he ignored his known duty

to his vessel, his shipmates and himself, and disobeyed

his orders, which was the sole cause of the accident.

Petitioner makes no attempt to contradict these matters

now, as, indeed, he could not.

Once such facts are found, as they were found by the

two courts below, in admiralty, there is an end to any

pretense that petitioner is entitled to eure and main-

tenance at the expense of the employer whom he has

disobeyed, to the jeopardy of himself, his shipmates and

his vessel.

The concurrent findings of the courts below spell out

disobedience of orders and disregard of duty in the

presence of circumstances seen by petitioner to call for

performance of those orders and of that known duty,

as the sole cause of the accident, leaving the low-lying

vessel wide open when she was going out into a high,

rolling sea that threw the spray 40 feet in the air, so that

waves could **fill the door” and come into the vessel.

That is culpable, wilful, gross miseonduet, or nothing is.

Disobedience by seamen of reasonable shipboard orders

is highly culpable; disobedience of this order, so necessary

to the safety of the vessel, especially in the face of these

conditions of weather, was gross misconduct. Such dis-

regard of orders and of ‘‘known duty” when, as he him-

self says, plaintiff saw the conditions and knew they

called for performance of the duty and the order, was

wilful disobedience. No admiralty court ever yet re-

warded such wilful disobedience with maintenance and

cure. Petitioner has not cited and cannot find any case

allowing cure and maintenance under such cireumstances

of culpable misbehavior. Under the rule that the seaman

cannot recover maintenance and cure when his injury

——

= a

due solely to his own culpable misconduct, there could

possibly be any such case,

\ll these facts were spelled out by the Court of Ap-

Is on the first appeal on the uncontradicted evidence

the purpose of passing on the common law count

lich is no longer in dispute, and was not involved on

present appeal or in the present petition) ; they were

nd by the district court sitting in admiralty on the

‘itime claim for maintenance and cure—on the un-

Tadicted evidence. In addition the district court as

: of fact in admiralty and the Court of Appeals on the

cove appeal concurred in the further finding that not

Was there a standing order (as the uncontradicted

ence showed) but also that the captain told petitioner

he very occasion to close up the vessel. (Finding No.

ith such testimony indelibly upon the record, peti-

‘r’s argument that there is no Support for the con-

ent findings must fail. And upon such findings, the

is clear—as petitioner concedes—that the guilty sea-

is not entitled to recover maintenance and cure.’

The second alleged ‘question presented” mentioned

e petiton is:

‘Whether an injured seaman is deprived of his

ight to expenses of medical care and cure because

e is required to avoid such expense by use of the

ree services of the Marine Hospitals of the United

‘tates Public Health Service, and that the availability

pondent has nevertheless borne the costs of Mullen’s medical

id hospital expenses. Mullen testified these cost him nothing. (Tr.

eo.

— 20—

of this service prevents his recovery for maintenan

as well as cure.’’* (Petition, p. 5)

The ‘‘expenses of medical care and cure” to which pet

tioner refers are travel expenses of $165.33 for trips to

¢clinie at Indiana Harbor, Indiana, from petitioner’s hon

in Chieago.

The concurrent courts he@y found:

“Il * * * Lie left the hospital, he Says, On

about October 8, 1947, returning to his home in Ch

cago, Illinois, where the services of the Marine Hos

pital of the United States Publie Health Service wer

available to him for cure and maintenance withov

charge, as a seaman. After leaving the hospital plain

tiff voluntarily elected to visit Indiana Harbor, In

diana, from time to time for treatment, consisting 0

the application of heat, instead of availing himsel

of the Chicago Marine Hospital, whose facilities wer

mentioned to him by defendant in writing for any

thing he might require as cure and maintenance, |

does not appear that the heat treatments would hav

prevented plaintiffs ciployment, if there had beer

any employment for him.” (Finding No. 11, supra)

* * *

13. Plaintiff’s hospital and medical bills hav

been paid for hii, and no proof appears of any

amount owing plaintiff for maintenance and cure.”

(Finding No. 13, supra)

‘Under the section “Reasons Relied on for the Allowance of the

Writ,” petitioner rephrases the oint. He says:

“2. The Court of Appeals in its decision to the effect that the

Plaintiff should be denied expenses of cure because the Defendant

tendered him admission to the Maritime Hospital, is in error and

contrary to the decisions and established authority.

As thus stated, the question is moot. Petitioner himself testified that he

paid nothing for the medical or hospitial expenses arising from his acci-

dent (Tr. 80) as the concurrent courts below also found:

“Plaintiff’s hospital and medical bills have been paid for him,

and no proof appears of any amount owing plaintiff for main-

tenance and cure.”

(Finding No. 13, supra)

aa Te

The Court of Appeals concluded below:

* * * Since the recofd discloses that medical and

hospital charges for treatinent were actually fur-

nished him, and since he could have had any addi-

tional treatment required without costs through the

facilities of Public Health Service, we are constrained

to hold that the trial court sitting as a tribunal in

admiralty properly dismissed his action for mainte-

nance and cure.’’

Mullen v. Fitz Simons & Connell Dredge & Dock

Co., 199 F. 2d 557, 560-561 (1952).

This point has been ruled on many times by the lower

federal courts: e.g. United States v. Loyola, 161 F. 2d 126,

127-128 (CA 9, 1947); Bailey v. City of New York, 153 F.

2d 427 (CA 2, 1946); Marshall v. International Mercantile

Marine Co., 39 F. 2d 551 (CA 2, 1930). And it was put

to rest in accordance with the doctrine so held for many

years in many federal district courts and Courts of Ap-

peal by the decision of the Court in Calmar S. S. Corp. v.

Taylor, 303 U.S. 525 (1938) :

s@ * * Moreover, courts take cognizance of the

marine hospital service where seamen may be treated

at minimum expense, in some cases without expense,

and they limit recovery to the expense of such main-

tenance and cure as is not at the disposal of the sea-

man through recourse to that service. (Cit. cases).

* * #99

Petitioner cites no conflicting federal authority to the

contrary.®

8 The holding of the Court of Appeals against petitioner was alterna-

tive. Even had the lower court been willing to disregard the holding of

this Court and the other federal courts, and allow petitioner to prevail

on this point, his wilful disobedience of orders and culpable failure to

perform his duty as found by the concurrent courts and his failure of

proof would have defeated him.

Since petitioner lived in Chicago, Illinois, where free medical service

was available to him, his attempt to charge respondent with traveling

expenses to another state (Finding No. 11, supra) might be thought to

be peculiarly subject to the principle that a man cannot recover as dam-

ages expenses that he might have avoided.

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—_—

3. Petitioner’s third alleged “Question Presented”

is:

“Whether or not there is evidence in the record

sufficient to enable the Court to fix the amounts due

the Plaintiff-appeliant for iaintenance and cure,”

(Petition, p. 4)

Both courts below found the record lacked proof to

show what, if anything, was due the petitioner for mainte-

nance after the payments made ex gratia by the respond.

ent.

The coneurrent finding was:

“T3. Plaintiff's hespital and medical bills have

heen paid for him, and no proof appears of any

amount owing plaintiff for maintenance and cure.”

Additional findings further spell out specifically the

inadequacy of the proof.

In view of the authorities in this Court that concur-

rent findings below will not he overhauled here (supra,

p. 12), petitioner’s argument here would have to be that

these facts present no substantial evidence to support the

findings.

But petitioner himself made the record and it is his

own uncontradicted testimony which spells out the fail-

ure of proof and provides the basis for each finding made

by the concurrent courts below.

It was petitioner’s own testimony that all his hospital

and medical expenses were paid for him (Tr, 80: Finding

No. 13).

It was petitioner’s own testimony that tug work was

seasonal and that this was a late season job which could

end at any time; he was forced to admit that during this

off-season, (1947-1948) although lic was on call, there was

no call for ini and again during the next oil-season (1948-

1949) he received no call for any employment. Petitioner’s

arguinentative statement on brief that after his injury

on September 29, 1947, ‘the was able to work for the first

time on May 17, 1948, and was disabled and required to

maintain hinuself for a period of 252 days at $5.00 per day

** * while it avoids saying so specifically, is meant to

be understood as meaning that he was required to main-

tain himself because he was disabled during that time,

but that was not what his testimony said.

Again, it was petitioner’s own testimony that following

his discharge from the hospital (where with the medical

eare provided hint by respondent, he also received. liis

maintenance) his doctor wanted him to go back to work

sometime (his proof does not show when) before his out-

patient treatment was completed, beeause it would he good

for his hand. Rights to maintenance and cure, if any,

cease when a seaman is pronounced fit for duty.

Mor aueht that appears, plaintiff would have heen ac-

tually benefited from work as svon as his in-patient treat-

ment, that he might have had free in the Chicago Marine

Hospital, would have ended.

Given an opportunity to supplement the record which

had led the Court of Appeals on the previous appeal to

say ‘tno proof appears of any amount owing the plaintiff

for cure and imaintenance’’, petitioner was not able, or did

not choose, to offer anything.

He cannot reeover maintenance when he was not work-

ing, contrary to his doctor’s advice that he should work,

end when what the hand needed was work, as he admits

his treating physician (whom he did not eall) told him.

He could not recover maintenance while he was not work-

‘

*§

peine at

nae a

ing for the reason that there was no work for him during

the off-season.

The record is devoid of any proof of any amount owing

petitioner for maintenance or cure. That is what. the

concurrent courts found below, on petitioner’s own un-

contradicted testimony:

‘“Plaintiff’s hospital and medical bills have been

paid for him, and no proof appears of any amount

owing plaintiff for maintenance and cure.” (Finding

No. 13, supra)

The findings then, which the petitioner would have the

Court overhaul, despite its often expressed rule, are con-

current findings of the courts below based upon uncon-

tradicted testimony of the petitioner himself, which he

could not or did not choose to augment when given the

opportunity and challenged to do so.

CONCLUSION.

Two of the questions brought forward seek reexamina-

tion of concurrent findings of fact of the two courts be-

low and a third seeks review of a legal principle on which

decisions are not in conflict. No basis for issuance of the

writ of certiorari is presented. The petition should, there-

fore, be denied.

Respectfully submitted,

Epwarp B. Hayes,

Attorney for Respondent.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.