284 F. 360 | S.D. Fla. | 1922
Demurrer to the first, second, third, and fourth counts is sustained. The demurrer to the fifth and sixth counts is overruled, and defendant shall plead as it may be advised to the fifth and sixth counts on or before the rule day in June next.
In the above case it seems that upon authority of the adjudicated cases it is clear that the plaintiff was a seaman, and his right to recover must he gauged by the maritime, rather than the common, law. Under the maritime law a seaman injured is entitled to recover his wages, his maintenance and cure; that he is entitled to recover indemnity for injuries caused by the unseaworthiness of the vessel.
The first three counts recognize this principle and attempt to base the claim on unseaworthiness, but the facts alleged do not constitute unseaworthiness of the vessel.
The fourth count alleges negligence of the surgeon performing the operation without allegations bringing home to the defendant knowledge that the surgeon was unskilled.
The fifth count does this. The sixth count is predicated upon the neglect and refusal of the defendant to provide maintenance and cure. The demurrer to the fifth and sixth counts will be overruled and sustained to the first, second, third, and fourth counts.
