241 F. 718 | N.D. Cal. | 1917
On May 23, 1916, libelant, a seaman, was injured by a blow on the bead on board the steam schooner Coaster, because of a defective appliance used in loading lumber thereon. The injury was received at Prescott, Or. Libelant’ shipped on board said schooner at San Francisco for a vpyage to Portland, thence to San Pedro, and thence back to San Francisco. On the arrival of the vessel at San Francisco, he went to the Marine Hospital, where he was treated for some weeks. During this period and in the early part of June he went to the owners’ office and saw Capt. Higgins, the port captain, and asked what he was going to do, because he (libelant) had got hurt.on one of his vessels. Capt. Higgins sent him to the insurance office. He went there, and told the insurance people that be was hurt, and that Capt. Higgins had sent him there to see them, and asked, “What are you going to do about me?” He was told to get a certificate from the marine doctor and come up there and get his compensation money. He got the certificate and returned, and was paid by the insurance company the sum of $12.65. This was June 19th. Before the money was given him he signed a receipt in the following terms:
“Received from M. Thompson & Co., twelve «<¡/ioo dollars, being compensation for injury received on steamer Coaster on May 23, 1916; said compensation being for one week, from June 12, 1916, to June 18, 1916, both inclusive.”
He returned to the insurance company’s office on June 26th and received $12.65 for the week ending June 25th, and gave a receipt in the same form as the above. On July 3d he received $12.65 for the week
' “And in consideration thereof, I hereby release the steamer Coaster and owners from all further liability for said injury.”
When receiving these various payments he was told:
“This is what you get under the compensation law.”
When he signed the final receipt and release, he says that he did not know there was any difference between it and the receipts that he had previously signed; that he did not read them over. After the last payment, however, they told him that that was all, and that he did not have to come back any more. He then went immediately to see Capt. Higgins again, and asked of him:
“What are you going to do with my case? I am not properly fixed, and X have got to have something done to my head, so I will be the same as before; you have got to give me something for the time I was ashore.”
Capt. Higgins said:
“Well, I couldn’t do nothing for you; I got my men insured; it is not in my power.”
And he sent him back to the insurance company, where he was again told that he was finished in that office, and that they had nothing to do with him any more. At no time was he told that he was getting any pay for the sufferings he had endured, but he was several times told, to1 use his own words:
“They just told me I got my compensation, what I was supposed to get by the law.”
There is no claim that any fraud was practiced on him, nor any proof that he did not know what was meant by “compensation money,” or by “this is what you get under the compensation law.” The compensation law referred to is the California Workmen’s Compensation Act, which provides for a comprehensive scheme for the compensation of employés injured in the course of their employment, without regard to any question of negligence on the part of the employer. The amount of such compensation is a certain percentage of the average weekly earnings of the employé, to be paid during the period of disability. The amount received by libelant was correctly estimated for the period covered by the payments in accordance with the provisions of this act, and payments were stopped when he could no longer furnish a certificate of disability from the doctor. The act in question provides that:
“Liability for the compensation provided by this act, in lieu of any other liability whatsoever to any person, shall, without regard to negligence, exist against an employer for any personal injury sustained by his employés arising out of and in the course of the employment. * * * Where such conditions of compensation, exist, the right to recover such compensation pursuant to the provisions of this Act, shall be the exclusive remedy against the employer for the injury.”- St. 1913, p. 283, § 12, as amended by St. 1915, p. 1081, § 2.
The defense to this action is twofold: (1) That libelant, having accepted compensation under the California statute, cannot now claim damages for the same injury in the admiralty court. (2) That for a.
‘■I am not properly fixed, and I have to have something done to my head, so I will he the same as before.”
The evidence shows that he shipped on the steamer Helaine on July 19th and was compelled to leave her on August 2d because he could not stand the work; that when he bent down his head ached and he got dizzy and his nose started to bleed. He then shipped on the Willamette on August 20th, and made one trip on her, and was compelled to leave her for the same reason. He remained ashore about a month, was again treated by the doctor, and then shipped on board the Vanguard, where he worked for about six weeks. He then remained on shore for five or six weeks, because of pains in the head,'and then shipped on the Alcatraz, which he was compelled to leave because, as he testified:
“I had headaches; I could not stand hard work; it affected me too much.”
At the time of the trial on March 12, 1917, he testified :
“I get headaches sometimes if I bend over; If I talk much, like now, I got a headache. I have got a headache right now; funny feelings in my head you know, kind of humming in there; sometimes in the evening I get a pain like somebody shooting a knife right across my right eye.”
I think it is fairly evident that libelant did not receive the full ampjmt of compensation to. which he was entitled, even under the California act, when he accepted the four payments of $12.65, amounting in all to $50.60, even if we add thereto the amount, $15.25, paid by the-
In the present case the libelant for his injuries will be awarded the sum of $1,200, and for wages the sum of $9.16, making a total of $1,-209.16, together with costs of suit. Upon this amount will be credited the suni of $50.60 already received, and judgment will be entered for the sum of $1,158.56 and costs.