*1 n something may 22nd. else March He well have done besides. separately, theory any nor Considered neither the hose together, probability. can well be called a no one is Considered likely so much more to be true than the others as to be called a simply give probability. “prob- relative The record does not satisfactory gas leakage. explanation able” or a situ- Such ation, resting proof plaintiff, with the burden of does jury arbitrarily explanation not entitled the to select an imposes liability. alleged proffered by statement of Mr. Mrs. Wilson
Kerley and her relative-in-law and court excluded trial was relevant and plaintiffs much more favorable to the than the police. admitted ones which Mr. it made earlier But Wilson to the righly excluded. Doubtless no one of circum- the several working against stances admissibility under the res' the rule of gestae, lapse time, apparently, such as the of some four hours n declarant, continuous consciousness of the the fact that the state- reply ment questions, came in the fact that followed apparently earlier subject different statements the same subjects, necessarily conversation on other would exclude application However, taking of the rule. all to- these conditions gether, they clearly outweigh those of Mr. Wilson’s continuous suffering shock, determining and state of whether the state- requisite degree spontaneity ment had the in relation to the explosion. City Quinones, See of Houston v. 142 Texas 259; Schlakzug, S. 2dW. Pacific Mutual Life Ins. Co. v. 264, 183 Evidence, Texas 2d Texas S. W. 709. Law of McCormick Ray, seq. sec. 426 et Smedley, Justices Brewster and concur the con- Wilson expressed. clusions here Opinion May 9, delivered 1951.
Rehearing overruled June
Socony-Vacuum Company, Incorporated, Oil
John B. Aderhold. 14, 1951. No. A-2790. Decided March Rehearing 20, 1951. overruled June (240 W., Series, 751.) S.
Royston Rayzor Eikel, Houston, peti- & Robert all for tioner. only actually
A seaman can recover maintenance when he has expenses, allowing incurred and the erred in mainte- court him ashore, at nance receiving times he was had or living go school, aid from the G.I. fund to to or was at expense his mother’s home with no to himself. Court allowing judgment also erred in a in excess of that asked for pleadings. Steamship Corp. Taylor, in the Calmar 303 U.S. 993; Butcher, 82 L. Ed. International & N. R.R. Co. v. G. 1052; States, 98 Texas 84 S.W. Johnson v. United 9 C.C.A. 1947, 160 Fed. 2d 789. Houston, Wright Mandell,
Mandell & and Arthur J. all of respondent. for shipowner obligated
A to reimburse a in- seaman for expenses obligated curred and those for which he himself to pay during disability which manifested itself while attached to vessel, except hospital for time in marine or in service ship. pleadings another under Plaintiff’s the cause of action for general amply supports maintenance based on maritime law judgment. Lucas, the court’s Mail Pacific S. S. Co. v. 264 Fed. 938; Co., Emmons v. Pacific Indm. 146 Texas 208 S.W. 884; Corp., 817; Brinkman v. Oil Transfer 88 N. E. 2d Jones Steampship Corp., v. Waterman 155 Fed. 2d 996. Mr. opinion Justice delivered Wilson the Court. parties according will position be referred to to their the trial court. Plaintiff, formerly.a tanker, seaman on defendant’s the SS SOCONA, filed first, two causes of action in this suit: for main- cure; second, damages
tenance and by for caused a fall from a shelf on the shelter deck. He contends that the an un- shelf was safe-place work; negligence to it was to him send ship this shelf rolling; negligence with this it was to have fittings loose shelf, upon negligence stored on the and that it was “gob grease” allow a slipped which he remain on the jury negligence shelf. The found Act, under the Jones 688, U.S.C.A., Title Section $35,907.00 a awarded for injury diagnosed back by plaintiff’s doctor as an herniated disc. The trial judgment court reflecting jury’s entered a find ings, which has been Appeals. affirmed the Court of Civil S. W. 2d 834. response cure, to his jury action for maintenance and found that vessel; injured employed while on defendant’s day compensation that. $4.00 reasonable cure; maintenance mum and that would reach his maxi- recovery January 15, 1950, beyond which his condition improved could not be ordinary treatment known medical science. judge The trial determined that was entitled days to 1098 day, maintenance and cure at total $4.00 damages negligence. $4396 to the addition *5 during Defendaht contends portion period that a of the for which and plaintiff maintenance cure were allowed was em- by ployed supporting himself; during others and that another portion period lived with his to whom mother obligated he was pay room; during not board and and that mortuary a period attended portion of this another payments from subsistence and drew veteran’s school on the entire sum attacks the Defendant Federal Government. proof positive the sums ground plaintiff did not offer reduction for a Defendant asks expended were reasonable. he grounds plead mainte- of the sum to $2500 recovered amount of and $4396. in the $2500 nance cure remedy peculiar Ad is an ancient Maintenance and cure arising negligence. miralty is an and not It Law out of contract obligation injured was a It vessel owes an sick seaman. Compensation a Law. forerunner of modern Workmen’s discharged government duty by Plaintiff fit a was for marine hospital voyage soon after his fall. sailed one on the He SS Cannon Beach. He he was testified that not able to do the work attempt and has made no further to work as The seaman. computation properly trial court deducted from of time for period plaintiff maintenance and cure the marine government hospital (at expense) period voyage Balsa, on the SS Cannon Beach. The 10 Fed. period
Within the for which the trial court allowed mainte- cure, plaintiff nance employed by two different under- (one paid wages takers week) and the $15.00 $35.00 part during as a of and his mortuary nine-month course aat obligation school. Defendant contends that it is under no maintenance and cure while worked for else. someone Plaintiff contends that maintenance and cure ais matured con- obligation tractual employment. not affected shore aWhen signs subsequent seaman voyage out his maintenance and arising voyage suspended cure out of a former during feeding subsequent voyage, caring obliga- for him is the vessel, tion of the correctly second as the trial court held in this injured case. The mere attempts fact that an seaman shore em- ployment deprive should not of itself him of his maintenance and may question cure. It raise of fact as to whether or injury prevented supporting that time him from himself part. question in whole or in to be determined is the extent plaintiff’s prevented injuries to which the fully him sup- from porting employment. discussing himself shore In maintenance Steampship and cure Corp. Taylor, in Calmar 303 U. S. 82 L. Ed. duty court said: “The does beyond not extend City seaman’s need.” Avalon, purpose 156 Fed. 2d the court said: “The of the historic implied injured contract to maintain an seaman arises from his
298 right ‘every watch during court should injury, a helplessness Gordon, 11 J., Story in Harden v. jealousy’ maintain. to Co., Fed. 118 6047.” Loverich Warner Cas. No. Fed. employ- periods of specifically excluded shore the court barred employment matter of law as a hold that ment. To recovery discourage shore urges, cure, as defendant would and for maintenance support attempting him- injured from to an seaman arising injury hand, or hold that sickness helf. On the other obligation cure during voyage maintenance creates an plaintiff urges, would im- irrespective employment, as of shore is fact upon the This pose vessel. an unreasonable burden charge and in the court’s sub- question should be defined which appropriate special issues. mitted in type jury find in this of specific which the should facts case are: begin;
(a) and cure should the time when maintenance terminate; (b) and cure should the time when maintenance expenses (c) per diem allowance maintenance cure; of
(d) money has earned the total of amount which employment the bracket at the within time trial his shore above; (a) (b) of time defined in earnings (e) expected from the total amount future shore employment of trial and the termination between the time maintenance and cure. entering judgment de-
This will allow the in trial court employment money duct the from amount earned shore course, may such as sum be allowed for maintenance. Of law, exclude, periods trial court will as matter of when hospitals. ships government is or requested Neither nor defendant additions to charge special upon testimony objected issues or this charge upon subject. court’s failure to ing issues concern- this Since actually part the amount of short are raising defense, they ground independent issues de- are request fense and burden defense to rests them. having requested case, Not issues the defense waived this independent defense. Rule T.R.C.P. payment
Defendant’s contention that relieved from period of maintenance and cure living v. Baltimore In Cortes is without merit. with his mother Line, L. Ed. Insular 287 U. S. *7 procure said, to his mainte- “If able court the seaman has been remedy money, his his friend’s out his own or nance cure of Corp., Y. 300 outlay”. Oil Transfer N. In Brinkman v. is for the said, would, 623, 817, the “It A.L.R. 2d court 88 N.E. 2d 13 think, badly of the courts’ the of these ‘wards we serve interests standing may by escape his burden aside to hold that owner ailing parents the seaman.” while or relatives succor payment from Defendant’s contention that it is relieved the period plaintiff of maintenance the and cure the receiving payments veteran’s subsistence from the Federal rights Government is under is without merit. Plaintiff’s what commonly Rights called Bill GI of did not arise from his the employment defendant, him, personal contract were to injury and had no connection with or with defendant’s his obli- gation by injury. completely reason of that This is a different from employment situation that in which seeks other ability work, because other going demonstrates his to thus disability. the to nature and extent his Defendant’s contention that proof failed offer expended the lodging amounts he for food and were rea sonable is finding without merit jury’s view of the of $4.00 day. a day. Plaintiff contended for admiralty, In if $6.00 defendant actually expended believes that amounts for mainte nance and unreasonable, cure may are he proof. offer rebuttal placing The common law upon plaintiff rule the pro- burden ducing independent proof of expenditures the reasonableness food, lodging, medicine, hospital expense, charges, doctor’s etc., place would an undue burden may seamen who incur expense for seaports maintenance and cure in all over world. Defendant’s contention by plead is limited his ings a total for maintenance $2500 and cure is It correct. is pleads true that maintenance in the amount of $6.00 a day liquidated but pleading demand because the allege days. does not a definite pleadings number of estab boundary lish the of a lawsuit. boundary That should be marked posts with corner all “for world to see”. Plaintiff contends that since this involves maritime law special position aof seaman as a admiralty ward of the special court entitles him to construing consideration in Ct., Sup Texas Corp., Texas
petition. Hopson
Oil
v. Gulf
against plaintiff and we
question
352, resolves this
S.W.
jury.
holding.
admiralty
Since
reaffirm
there is no
here
fixes
finds
facts
admiralty
judicial mind
a trained
always
damage,
practice
informal.
has
been
injuries
brought
Jones
personal
when the
In an action
sought
gain damages
law
new, a
on the
side
Act was
seaman
admiralty
them in
Act and collect
the court under the Jones
against
through
ship.
v. The
proceeding
In Plamals
in rem
Rio,
Ed.
72 Law
Pinar Del
277 U. S.
j;he court said:
“*
**
election,
may invoke,
ac-
at their
the relief
Seamen
against
ship,
provided
corded
the old rules
or that
may
(the
against
employer.
they
Act)
the new
Jones
But
*8
(Parenthesis added.)
not have the benefit of both.”
Likewise,
bring
elects to
action in a Texas
his
pleading
practice
court
just
must conform
rules
he
to Texas
of
and
litigant.
any
judgment
A
as
must conform to the
pleadings.
damages
judgment
money
Rule
TRCP. A
pleaded
supported
of
excess
ingly
the amount
cannot be
and accord
judgment
City
the
of the trial court should be reformed.
Jones,
377;
of Dallas v.
93 Texas
and
S.W. 577
53 S.W.
Stuart,
Denman v.
142 Texas
Turning negligence, now to the second of action for cause only brought we find questions that the forward are raised objections special defendant’s to the form of the issues. judgment the supported Since Special can be under Issues Special Nos. 6 and we will set out Issue No. which is:
SPECIAL ISSUE NO. 6. you “Do preponderance find from a of the evidence that the sending plaintiff, Aderhold, John B. to stand on the shelf paint in order to the overhead and side of the shelter deck of the SOCONA, SS high while the vessel was on the and sea rolling negligence, was as the term is you? herein defined to
“To jury which the answered We do’.” response Special jury Issue No. 7 the found that the facts found Special under Issue proximate No. were the cause plaintiff’s injuries. grounds 6 on Special Issue No. objects .Defendant This fact issue. an ultimate argumentative and not that- is not well taken. is had he have fallen would not. Plaintiff upon the shelf. been charge upon objection the issue is is next Defendant’s that facts. controverted weight assumes in that it evidence of the work sent to that uncontroverted The evidence is shelf, fell from upon and shelf, he did work he testified that it. witness. Calvin Gaeblor Defendant’s charge ordered that he
boatswain in paint. uncontroverted on is also to the shelf The evidence waters) high (i.e., out of national sea vessel was great controversy rolling. over deal of and degree There was upon the framed did not comment of roll the issue as but degree rolling. objection, last for us the at Defendant’s most difficult issue, painting places this shelf tack was at sea like normal routine sailor’s work as a matter law de negligent asking fendant employee could not be in. do to work he was hired A to do. seaman is definition a man who can adjusting bodily move do about and his work while move ship. ments pitch to the roll (cid:127) Viewing favorably plaintiff, the evidence most to the as must,
we not be we cannot hold ship as a matter of law that could rolling enough given negligence at a time for it to be *9 require plaintiff to paint at that time to on this shelf. Seamen position stand in different employees from other in their abso- duty obey lute to get orders. Plaintiff had no choice. He had to upon paint. quit the shelf and He ship could not and leave the subject and disciplinary was action if he refused. The wit- Brady, ness Socona, Charles E. Chief Mate of the made this question fact when he testified as follows: “Q. you But I believe testified that if weather had the been you rough what you mariners described as would not have sent shelf, a man permitted on that him to be sent there?
“A. We would have found work for him. “Q. you permitted And your would have paint one of men to on that shelf? (S.F. p.
“A. 533.) No.” It is rolling true that this same testified witness that as the ship dangerous was at that time it was men to work on ship opinion was in his testified Plaintiff shelf. protested avail when rolling no that he much and too him the shelf. ordered
boatswain as follows: A. Johnson testified The witness Glen rolling pitching.” rough ship pretty was “It was testimony, This, coupled plaintiff’s an issue of raised ship. of Civil fact amount of roll of the Court as finding specific Appeals made a affirmative sufficiency proof the evidence. volume of offered persuasive to the defendant effect that the seas were normal Still, having raised, question to this court. been issue fact jury. for the Special support conclude We Issues Nos. 6 and 7 will judgment. the trial court’s Having Special determined that Issues 6 and 7 will Nos.
support judgment, unnecessary Special it becomes to discuss through through Issues 1 5 and 8 18. judgment The trial court’s that of Civil Court Appeals negligence should be affirmed and it is so ordered. judgment The trial court’s and that of the Court of Civil Appeals on maintenance and cure should reformed. be It ordered that be allowed maintenance and in the cure sum appeal against no All $2500 more. costs of are taxed plaintiff. Rule T.R.C.P.
Opinion delivered March
ONREHEARING. Mr. Justice opinion Wilson delivered the of the Court. By rehearing motion for defendant contends that the evi plaintiff’s dence shore and, was uncontroverted requiring since fact no issue raised, submission was this should have been a question treated as of law. This contention is correct. *10 The trial court should not have allowed maintenance for eight-week the period during plaintiff making which was $35.00 a week for the support reason that to he was able himself and incapacitated. therefore was not plain The a week which $12.00 during tiff earned period the twelve-week equal did not the support. necessary jury for amount the determined be to during something period is evi- this fact that earned during period. totally disabled, at this dence that he not least was employment con- duty pay to under the maintenance arises dis- plaintiff’s incapacity. found tract have no cases from We cussing disability upon partial maintenance the of effect record, cor- trial cure. Under court this we hold that the allowing period rect in twelve-week but maintenance for this actually earned. should have deducted the amount he original opinion the did not intend to in our We hold way only submission a trial discussed in this case is the judge problems employ can submit of maintenance and shore per ment. Maintenance not have to be submitted on diem does opinion specific points basis. areWe limited in this to the objections charge supported by error and trial made to this as Wages the evidence in this case. earned shore negativing disability put should be treated as evidence thus ting duty pay in issue part. maintenance in whole in original In subject opinion the treatment of this our we plaintiff’s said that defendant was entitled to credit for entire earnings during rehearing eight-week period, whereas on we only have determined that defendant is entitled to a cessa plaintiff tion of periods maintenance completely self-supporting, earnings. and not his Love entire Co., rich v. Warner 118 Fed. 690. Here 2d the trial court should have deducted from total sum allowed for maintenance $4.00 day eight earnings during for plus weeks or $224.00 period $144.00, twelve-week total of In view $368.00. —a judgment the fact that we have reduced the maintenance pleadings by $1896.00, error of the trial court does require judgment a modification under Rule T.R.C.P. Johnson, Defendant relies U.S. v. Robert E. 160 Fed. affirmed 333 U. S. L. Ed proposition for the that a cannot recover for mainte- living nance while parents. with his This decision was based upon a requires parents to California statute which maintain their minor children. Here a minor was not but years legal stepfather old and his mother and under were no obligations to furnish him free cost. ad- board and room dition, holding specifically the Johnson case limits situ- its agreement by ation in which there to reim- was no parents burse his room. board and
304 again find record and evidence of re-examined the
haveWe agreement and his mother. The fact that between an goes weight. testimony may in the its a conflict there be room while at furnished board and Neither was tending mortuary al The fact that he received an school. U.S.C.A., 38, Rights, 11c, Bill of Title Ch. lowance under the GI any any operate defendant more than would would not to relieve arising demonstrating plaintiff’s from and not other income ability seamen were held to wards of the an to work. While be they admiralty frequently were court because destitute helpless, holding cited defendant has no cases we have found none any a seaman must be destitute and in without come or in order to receive maintenance. con resources On the holding trary, are numerous cases that a seaman cannot there except money actually spent liability recover maintenance or Aguilar (involving credit). an extension of incurred v. Standard 724, Jersey, Sup. 930, of New Oil Co. 1107; U. S. Ct. 87 L. Ed. Baymead, 144; Barge Murphy 88 Fed. 2d v. American Company, rule, Line obviously 169 Fed. 2d 61. Under this the seaman living pay expenses
has to live credit or to his savings recovery from income. These cases do not bar plaintiff spent money here because for board room. On the hand, holding those cases that a seaman cannot recover charity hospital for maintenance and cure received in a no at expense himself, Canfield, Reed v. 20 Fed. Cas. No. 11,641; Erie, 3632(a), Davis v. The 7 Fed. Cas. No. do not apply money for the reason that received under the Bill of GI Rights by a prior charity earned service and and has specific limitations. any respect It is not similar in to benefit hospital received from a except originate marine that both in the Federal hospital Government. From a marine the seaman re ceived maintenance and cure in kind as such and reason of plus as a disability seaman incurred employment. Baymead, supra. The fact that chose to avail provisions himself of the educational of the GI Rights during Bill of sitting convalescence rather than in idle comparable ness is not a operate situation and does not to relieve defendant of obligation. its maintenance argues
Defendant that our discussion maintenance is conflict with Steamship Corporation Calmar Taylor, 303 U. S. 82 L. providing Ed. for future maintenance. do not We so construe it. The is limited finding of the definite at which time he will obtain his Calmar consistent said is have we maximum cure. What case. Special No. 6 Issue re-urges contention its Defendant *12 inquiry submit an issue, in does fact is not an ultimate degree ship. roll pitch The of of the degree as to of roll and the in itself but ship an ultimate issue pitch
and the is not of determining act whether the in considered circumstance be negligence. ordering was not plaintiff upon of shelf was or the (time for Steamship, Naylor 187 Fed. See Isthmian v. expired) The perfecting yet situation. appeal not for a similar uncontroverted, being ordering plaintiff upon act of the shelf determining only required the whether or issues were issue negligence upon under not it the shelf to order prevailing proximate that time an issue on circumstances at and cause. Rule 279 T.R.C.P.
Defendant
in
charge
raises
court for the first time the
conten
recovery
tion that
the court’s
allows a double
in that
damages
negligence
the
of
measure
for
includes an item of the
present
wages
cash value of lost
between
date
the
of the accident
and the
of
date
trial and also maintenance and
for the
the
cure
period.
argues
same
obligated
Defendant
support
damages
himself from this item of
and therefore is not
maintenance,
relying
entitled to
Lykes
Smith
Bros.-
Ripley
Co.,
Steamship
105 Fed. 2d
certiorari
denied
U.
S.
The motion for is overruled.
Opinion delivered June Calvert, Justices Smith, concurring. Griffin and judgment We concur the overruling peti- of the court rehearing. tioner’s motion for portion We do not concur in that opinion rehearing on motion for which deals the crediting respondent’s earnings manner of shore on the amount allowed for maintenance. opinion original
In our
submission we laid down the rule
shipowner
that the
was entitled to have
entire
of
the
amount
the
earnings
against
seaman’s shore
credited
the
and deducted from
court)
necessary
jury (or the
for the
to be
amount found
disability.
period
Neither
of his
seaman’s maintenance
challenged
justness
of
party
or the soundness
either the
has
rehearing.
opinion motion
rehear-
rule motion
crediting
ing
rule of
there announced
abandons the
nevertheless
involving
theory
rules of
adopts
new
two
exclusion
earnings
per
crediting,
(1)
the seaman
diem
viz:
When
cure,
per
allowance for maintenance
are more
diem
than
period
days
should
excluded from
reck-
be
number
oning
earnings
days
the total
on those
should be
excess
earnings
ignored,
(2)
per diem
are less
than the
earnings
cure,
per
diem allowance for maintenance and
should
on the allowance and the seaman awarded the
be credited
theory
disability.
partial
difference on
We believe we should adhere to the
announced in the
rule
original
allowing
opinion.
theory
maintenance
seems
*13
shipowner
obligation
sup-
be that the
is under a contractual
port
who,
a
injury
arising
seaman
because
or illness
voyage,
support
earnings
unable to
himself
out of his own
employment.
theory
from other
On this
it seems to us that
earnings
seaman’s full
be
should
used for his maintenance and
against
allowed,
earnings
credited
the amount
whether
be
large
days
amount for
few
services
smaller
amounts for
days
gone
several
services. Some of the Federal courts have
so
far
obligation
as to indicate that
the seaman
is under
damages
shipowner
minimize his
and that
is entitled to
diligence
credit for such
amounts
the seaman
as
the use of
could
earned
have
as well
actually
as
the amounts
earned.
States,
Warren v.
Supp. 836;
United
75 Fed.
Halvorsen v.
States,
United
Opinion delivered June