Smith v. Lykes Brothers-Ripley S. S. Co.
105 F.2d 604
5th Cir.
1939
Check Treatment

*1 BROTHERS-RIPLEY v. LYKES SMITH CO., Inc. S.S. Appeals, Fifth Circuit. Aug. 15,

Rehearing Denied Judge, dissent-

ing. *2 60» judicata were of action of res by appellee. filed in evi- introduced It also following parts of record in dence case; supplemental petition, the former answer, sup- petitions, and amended answers, verdict, plemental and amended judgment. Neither court’s any to the offered, nor charge of is in appeal, having the record cluded clerk because therein praecipe he of directed to do in the appellant’s attorneys. making Without New Montgomery, Jr., of B. Richard stating conclu- Orleans, La., appellant. sions of below sustained Rault, Terriberry, M. Geo. H. Jos. exceptions both libel. and dismissed the Orleans, Yancey, Benjamin La., W. all appeal challenges This the correctness accordingly. decree entered SIBLEY, HUTCHESON, and Before provide HOLMES, Judges. falling cure for a seaman sick or in jured ship his in service of obli is an HOLMES, Judge. gation in wages addition to mere during 1937, the term February 17, an sus- On service, incident to the contract of personal injury tained in the course beyond extend Steamship voy termination employment of the board age, care, nursing, includes and medical Liberty at Bell. He had ordered take tention, upon need, bilge soundings, and, rests seaman’s carrying in out order, culpability not anyone. he fell sustained sacro-iliac sprain. doctrine law is maritime In action at in be- an law the court low, so well established the error in sus alleging that his was due sole- ly exception taining of no of action appellee, to the of the its offi- cers, We, seems clear.1 exception turn employees him furnishing judicata. of res place work, with a he recovered safe compensatory damages in note, decide, stopping We without 7, sum March this question of admiralty pleading,2 ques also a judgment, costs, including duly sat- judicial tion of notice court trial isfied. prior cases,3 records its own both presented which are defense libel admiralty, institut- judicata interposed by res an ex September 22, court, in the same ception to the libel and the introduction parties between the same thereon; of evidence but neither side as same injury, but dif- points, these has raised we shall not raise ferent suit, cause action. the first them, shall defense treat the as if raised the seaman recovered compensatory dam- point, according answer. decisive ages under section 33 of the Ma- sides, arguments to the briefs is both rine Act of 46 U.S.C.A. 688. In entry and effect of the satisfaction case now before sought to re- judgment. the former cover damages, under general law, for him with main- against splitting rule single indivisible causes of action is case, applicable admiralty, appellant alleg- instant this rule does separate require and distinct causes employed as a seaman suit, on said even claimed entitled Exceptions they though arose time and 1 Hollingsworth, Corp. Steamship Taylor, Calmar Dist. v. 72 Irr. Paridy 859, 863, 937; F.2d 96 A.L.R. S.Ct. See, Admiralty Caterpillar Tractor F.2d 26 and Rules 924; Seminole, D.C., F. U.S.C.A. section 723. Jurisprudence, page Atkins, Sec. Freshman v. Am. Divide Creek Likewise, actions; the tort quired together.4 no election was be considered (a), pre- wherein the of remedies of election doctrine appellee the con- arose as incident to cases, this doctrine in maritime vails wages. tract for pany Com- Pacific plurality presupposes a *3 Peterson, supra; Baltimore S. S. principle the. v. remedies, or and rests U,S. 316, equity. Co. v. must do equity that seeks he who ;5 D.C., Whitney, 71 L.Ed. 1069 v. apply and cumu- Olsen not does to consistent 109 F. 80. lative remedies. v. In Pacific splitting of Since was no there Peterson, L. 278 U.S. 49 S.Ct. action, duty an indivisible and no cause of recovery Ed. a that held remedies, to elect between the inconsistent preclude not did maintenance cure appellant right had sue first for the to indemnity the subsequent action under tort, sounding items omitting Act, supra. present Marine Merchant The and demands for main ruling. of that case involves the converse Upon cure, bring tenance to and then must be alleged, which facts as present action, arising out of a breach of causes appeal, on taken as true of action this three wages;6 incident to his contract for he appellant when accrued to right compen did he have to be not by con unsafe injured was reason of the sated age. twice the same elements of dam ship, negligence due to the dition of tort, If had he lost his case in each was The source of action;7, would not be barred in this it, having won former judgment and the having paid, question is whether wages, recover (a) The to paid he has also been his cost of mainte expense of which cure expenses nance reasonable wages, to His was incident contract and cure have payable irrespective negligence unless recovered in indemnity the form of in the brought tne sea- injury was about law, action the evidence in for man’s willful misconduct. mer case is not before we do not right, The to (b) under proven know what items were or award indemnity injury recover caused The charge therein. not unseaworthiness which properly in the record. So the ultimate negligence of was question comes to this: the two cases owner. duplication overlapping or is there right, (c) The under expense resulting elements from same one and the Act, supra, indemnity Marine injury? principle The personal injury suffered in the course really applies pay that is one either of of his estoppel by judgment, ment or both. or of wrong legal prior in the not items of The issue whether primary right an invasion of the seaman’s actually litigat were damage here involved bodily safety, legal wrong in the case. in the former determined pro- action was a breach former case record on necessary cure. vide the maintenance and ex- not show that face does action, (a), (b), and The three causes of recovered, and sued penses were mentioned, (c), arose at the same above expenses main- doubtful whether it is depended upon different time but facts ill What items were. principles law. distinct really submitted damage were (b) (c), required to elect between respondent States, suffered United Baird v. wrongful single pri- of a Starr, invasion Stark v. mary right, namely, bodily safety, prayed whether was due to ease, if libellant several distinct one or acts established, he negligence should not be two or wages, maintenance, a combination of more decree for dis- We cite this them. the acci- court held that tinguish alleg- it. not due dent Atherton v. Cir., Anderson, only 86 F.2d granted re- ed, judgment Held, 521. sought. lief Romich, 7 Lippman 26 F.2d v. the same a second bar negligence, acts of based may con- proven seeking recovery not evidence fact aliunde double tradictory an issue same record. do. Bal- this he by an- Phillips, supra; timore properly of fact S. Co. Hau- S. v. swer, gen D.C., and, Company, as there not sufficient Oceanic Fisheries record, F.Supp. 572; low- 21 subject .the Hammond Lum- Owens v. D.C., er court made of fact as ber F.Supp. Seely c/f 46%, 28 quired York, by Admiralty Rule 24 F.2d 412. decree section judgment recovery was denying reversed, and the cause the district court right and should be affirmed. I dissent proceedings remanded for further reversal, from opinion. consistent with this *4 Judge (dissent- ing). is, simple one, think, very I disposed simply Plain- and it of. tiff, damages, original set damaged the sum out that he had been $20,000 “Pain and itemized as HOM CARR, ARK v. District Director $1,0,000; past earnings, suffering, loss Immigration. Naturalization and $45.00; $9,955.00.” earnings, loss future original petition de- conclusion Appeals, Ninth Circuit. alleges clared: Petitioner that this action brought pursuant Section 33 of the Marine Act U.S.» petitioner hereby elects to damages maintain this at law by jury, with the of a trial and to take advantage of all statutes of the United States, modifying extending the com- remedy, per- mon law cases of railway employees. sonal petitioner

prayer was that $20,000, in the full amount for all costs disbursements, for all equitable Upon petition relief. drawn, plaintiff was entitled to recover his medical, damages including surgi- full cal, disbursements, and other in other words, cure. jury, to among things said: “An award in punishment inju- ry inflicted, compensation therefor, therewith, and should commensurate with and the facts reference to said treatment, cetera, et are evidence.” plain- returned a verdict

tiff This verdict in law compensation included loss of wages, pain suffering, disbursements treatment, expenses for et cetera. Steamship Baltimore plain, quite that when plaintiff again sues $1,092, and for disbursements expenses, and other for a leath- $52 jacket, treatment, $100 er