187 F.

2d 40

LIPSCOMB,
v.
GROVES et al. (two cases).
Nos. 10115, 10116.

United States Court of Appeals Third Circuit.

Argued Nov. 13, 1950.
Decided Feb. 7, 1951.

Stark & Goldstein, Philadelphia, Pa., for appellant.

Krusen, Evans & Shaw, Philadelphia, Pa., for appellees.
Before MARIS, McLAUGHLIN and STALEY, Circuit Judges.
McLAUGHLIN, Circuit Judge.

These appeals involve a seaman's claims under the Jones Act 1 for personal
injuries and for maintenance and cure. The negligence and unseaworthiness
phase of the action was submitted to a jury and resulted in favor of the
defendants. Plaintiff below appeals from that judgment in No. 10,115. In No.
10,116, the Trial Judge originally awarded maintenance, cure and wages in the
sum of $1,968.75 to the seaman. D.C., 83 F.Supp. 402. On rehearing,1A the
award for wages was eliminated and judgment entered for maintenance and
cure in the sum of $1,120. From that judgment the defendants appeal. There is
no cross appeal on behalf of Lipscomb from the decision of the court as to
wages.

The actionable facts were controverted and for our purposes need not be stated
at any great length. Appellant, twenty-two years old at the time, was a member
of the crew of appellees' S.S. 'Alexander S. Clay' serving in the capacity of
wiper. On June 25 or 26, 1947, while the ship was in the harbor at Rouen,
France, he, and his brother who was aboard in like capacity, were emptying
some drums of oil from the boat deck to the deck below. Just what took place
and whether Lipscomb was in an accident as he claimed is disputed. There is no
doubt, however, that by the following night his physical condition was such that

he had to be removed from the ship to a Rouen hospital. There he was found to
have an intestinal obstruction and an emergency operation was performed on
him. He urged at the trial below that he had sustained an accident on shipboard
which had so aggravated his preexisting physical condition as to require that
operation. He also contended that he later developed a ventral hernia as a result
of the Rouen operation which he states has prevented him from resuming his
occupation.
3

Appellant's spleen had been removed as a child. In 1945, at Jefferson Hospital,

Philadelphia, Pa., he had undergone surgery for the removal of adhesions which
had caused an obstruction of the small intestine. This was the same sort of
disorder for which he was operated on in Rouen. About five months before
shipping on the S.S. 'Alexander S. Clay' he had again been a patient in
Jefferson Hospital. His trouble at that time was varicosities of the entire wall of
his esophagus in its lower third. He entered the hospital February 6, 1947. He
was discharged February 8, 1947 and was supposed to return at a later date 'for
conservative treatment.' He did not return. Prior to that experience he had
received other medical treatment elsewhere.

Appellant said that during his preemployment examination by appellees' doctor,

he had told the doctor that he had 'had the operations on account he asked me
about the scars'. Asked if he said anything to the doctor about the second
treatment in Jefferson Hospital, he replied, 'No, on account of he didn't ask me.'
Lipscomb said that he did not think that information important because he was
not kept 'in the hospital'. At the time he was examined he had the visible scars
of the two operations.

Negligence and Unseaworthiness.

On the negligence action, appellant urges that the Trial Judge erred both in his
general charge and on affirmance of defendants' point with reference to
appellant's duty to disclose his physical condition. In connection with the
preemployment medical examination of appellant by appellees' physician, the
court charged the jury: 'You have heard about the question of the examination
before the young man went on this last trip on the S.S. 'Alexander S. Clay'. He
was examined by this doctor who took the stand and told you about it. Now,
the law says the sailor's duty is to disclose whatever he as an ordinarily prudent
person should have known to have been material to the risk.' In form and
substance this language bore close resemblance to Point 2 of appellee's
requests. Those requests were presented to the court prior to the charge. The
portion of the general charge quoted apparently derived from the request;
certainly the jury could not avoid connecting the two. Point 2, as charged, was

as follows: "Under the Maritime law the employer must pay to the seaman the
fair value of the board and lodging which the seaman would have received on
board the vessel. The shipowner assumes this burden if the seaman becomes ill
or is disabled for any reason during the term of his employment. If disability
arises during employment, the employer must furnish the seaman with the
money value of this maintenance and medical care and attention for a
reasonable time to enable the seaman to reach the maximum state of recovery
which his condition permits. Because of the obligation upon the shipowner, a
seaman seeking employment is bound to disclose'- I have read that to you- 'to
his prospective employer whatever facts about his physical condition he knows
or as a reasonably prudent person should know may be material to the risk
which the shipowner assumes in employing him.' The discussion I will dispense
with.'
7

Appellant took no exception to the quoted language from the general charge.
He did except to the charging of Defense Point No. 2. That exception
adequately covers the principle of law involved.

Appellees' request, as affirmed by the court and as incorporated into the general
charge, was substantial error. In this count, based on negligence and
unseaworthiness, appellees used a maintenance and cure theory as the test of
whether the seaman had a cause of action. In so doing they presented the
proposition which was charged- that without fault, the shipowners had the
obligation of maintenance and cure arising from the disability of the seaman,
and since this was so, the seaman had the duty ' * * * to disclose whatever he as
an ordinarily prudent person should have known to have been material to the
risk.' The risk referred to obviously was the responsibility of appellees to
furnish Lipscomb with the money value of his maintenance and cure if he
became disabled during his employment. The maintenance and cure rule given
the jury as the guide for its decision, irrespective of whether or not it correctly
outlined the particular maintenance and cure law,2 had no connection with this
action. Since the 'risk' mentioned in the charge had nothing to do with the law
upon which this count of the complaint was both based and tried, the duty
attributed to Lipscomb, asserted to arise from that 'risk', did not have any proper
place in the charge. In this jury case Lipscomb was not seeking recovery from
the shipowners without fault. The sole foundation of this claim was the alleged
negligence of appellees and the unseaworthiness of their vessel. Lipscomb had
to prove at least one of those contentions. If he did, the law made appellees
liable to him. That liability was unrelated to the responsibility to Lipscomb
assumed by the ship without fault under the doctrine of maintenance and cure.

Nor can appellees' request be justified upon the proposition that one of the ten

grounds of their alleged negligence, as set out in the complaint, was that they
had failed 'to provide proper and adequate medical care and attention and
maintenance for the alleviation and cure of plaintiff's injuries'. Appellees say
they had no duty to furnish Lipscomb with 'care' or medical attention because
he concealed his physical condition. The question of concealment is discussed
in detail, infra, under 'Maintenance and Cure.' Suffice to say here that the
request, as given the trial judge and charged by him, was not confined to the
only item of Lipscomb's damage which could be possibly construed as flowing
from alleged negligent treatment or lack of medical attention. The request was
directed generally against his recovery of any damages whatsoever. Those
damages, according to Lipscomb, consisted primarily of aggravation of his
preexisting condition which, he said, caused the Rouen operation. The period of
alleged negligent treatment or lack of treatment did not even commence until
after the operation and revolves around the development of the hernia at the site
of the operative wound.
10

The next point pressed as error below, concerns the refusal to strike out an
answer to a hypothetical question put by appellees to a Dr. Parker, one of their
medical witnesses. On recross examination of this witness it developed that the
doctor in answering had relied on vitally important facts outside the scope of
those contained in the hypothetical question. For that reason the answer should
have been stricken.3

11

Error is also ascribed to the denial of appellant's motion to suppress the

deposition of Dr. Fresnais. That deposition was taken by appellees in France,
purportedly under Rule 31 of the Federal Rules of Civil Procedure, 28 U.S.C.A.
Rule 31 provides the method for taking the depositions of witnesses by means
of written interrogatories. In accordance with it direct, cross and redirect
interrogatories were properly served. After service of the redirect
interrogatories appellant had three days in which to serve recross interrogatories
and did so within time. Prior to the expiration of the three day period and of
service of the recross interrogatories appellees had transmitted the commission
for the deposition and the direct, cross and redirect interrogatories to the
American Consul at LeHavre. Those three sets of interrogatories were answered
and returned in time for the trial. Appellant's recross interrogatories were never
answered. At the trial, the direct and cross interrogatories and their respective
answers were received in evidence. Appellees withdrew their offer to place in
evidence the redirect interrogatories and answers. Appellant moved to suppress
the deposition because it did not include his recross interrogatories and
answers. He alleged that he had been harmed by being deprived of material
evidence. The court denied the motion.

12

We cannot say whether the evidence which appellant sought by his cross
interrogatories would have been valuable to his case as asserted by him, but,
admittedly, he had complied with Rule 31. Consequently, he had every right
under that rule to have his recross interrogatories submitted to the witness,
answered, and to have those interrogatories with answers in court at the trial
available to be offered in evidence. It is undoubtedly true, as appellees state,
that there had been difficulty and confusion regarding the identity of the person
whose deposition was to be taken and that considerable time had been
consumed. There is, however, no indication that the trial could not have been
postponed until the deposition had been taken in accordance with the
provisions of Rule 31. The deposition was not under the control of the
appellees. First Nat. Bank of Grand Haven v. Forest, C.C.N.D. Iowa E.D., 44 F.
246. As we said in Canister Co. v. Leahy, 182 F.2d 510, 514, 'The Rules (the
Federal Rules of Civil Procedure) are rules of procedure. They must be adhered
to.' The deposition was incomplete and improper. Nor was the situation cured
by the circumstance that appellees withdrew their offer to put into evidence
their redirect interrogatories and answers. Appellant, irrespective of that, was
entitled to the affirmative benefit of his own recross interrogatories. See
Winthrop v. Union Insurance Co., C.C.D. Pa., Fed. Cas. No. 17901. This had
been denied him. As a result, the deposition was contrary both to the letter and
spirit of Rule 31. It was error to allow it into evidence.

13

We have examined appellant's remaining points and find them without

substance.

14

Maintenance and Cure.

15

Appellants' main point for the reversal of the award for maintenance and cure
is based upon the premise that Lipscomb wilfully concealed from their doctor
facts bearing upon his physical condition which, if revealed, would have
resulted in his rejection as an employee. Specifically, they refer to his Jefferson
Hospital treatment in February, 1947, his history of vomiting blood and to the
fact that one of his two prior operations may have technically been for
obstruction of the small intestine rather than for adhesions causing the
obstruction. Therefore, say appellants, he is not entitled to maintenance and
cure.

16

It is true that the issue is before us de novo, but here the District Judge saw and
heard Lipscomb and had the fullest opportunity to pass upon his credibility. He
found that Lipscomb's ' * * * disability was sustained while in the service of the
vessel and not by reason of his own vice or misconduct.' (83 F.Supp. 404.)

From our independent examination of the record there is ample evidence to

support that finding. While it may not have been intended, of itself, to directly
include and affirmatively dispose of the charges of wilful concealment, there is
no finding or inference to be drawn from any of the findings made that
Lipscomb concealed material facts about his physical condition. From the
findings and the award the conclusion necessarily follows that the Trial Court
did not believe Lipscomb to have been guilty of the concealment charged.
17

On cross examination, Lipscomb said that his reasons for not advising the
doctor about having been a Jefferson Hospital patient for the second time were
because the doctor did not ask him and he had not thought the incident
important as he had not been kept in the hospital. It was on the occasion of that
hospitalization that he had complained of vomiting blood eight days previously.
That second Jefferson Hospital treatment was for, what is in non-technical
language, enlargement of the vein or veins in the esophagus. Lipscomb has
made no claim that his esophagus was in any way affected by his accident
aboard appellants' ship. It is apparent, therefore, from Lipscomb's testimony
that not only did it furnish sufficient justification for the Trial Court refusing to
hold that he had deliberately concealed the treatment of his esophagus but,
actually, it had no connection with his alleged damages. Maintenance and cure
may be denied a seaman who concealed preexisting illness or injury if that
concealment amounted to culpable misconduct. See discussion in Aguilar v.
Standard Oil Co., 318 U.S. 724, 63 S.Ct. 930, 87 L.Ed. 1107. The rule,
however, is not pertinent to the issue before us where, at the very least, the
alleged concealment bore no relation to the injuries for which recovery was
sought.

18

Regarding the damage which Lipscomb does say he sustained, there is no merit
to appellants' contention that he did not give correct information concerning the
operation he underwent following the removal of his spleen. On direct
examination he stated that he told the examining physician the operation had
been for 'obstructions'. On cross examination he was not sure whether he
informed the doctor it had been for 'adhesions or obstructions'. The information
furnished was substantially accurate. It was sufficient to show there was no
attempt at concealment, for the medical evidence leaves no doubt but that it
was the adhesions following the spleen operation which caused the obstruction
to the intestine. It was that condition which Lipscomb alleged had been
aggravated.

19

Appellants' remaining two points are considered together. It is argued that

Lipscomb is not entitled to maintenance beyond August 13, 1947. That is the
date, immediately following Lipscomb's return to this country from Rouen,

when he was seen by a physician on behalf of the United States Public Health
Service. The Trial Court awarded Lipscomb maintenance up to trial time ' * * *
without prejudice to any later suit by plaintiff to recover such further
maintenance to which he may be entitled, subsequent to the date of the
conclusion of the trial, namely, February 1, 1949.' We are, of course, dealing
solely with that award.
Findings of fact Nos. 13 and 14 read:
20

'13. In the summer of 1948, plaintiff's weakened abdominal wall had become
the site of a ventral hernia. This was a result of and complication from the third
operation.

21

'14. Since June 26, 1947, up to the time of trial, plaintiff has been unable to
resume his occupation as wiper and is capable of engaging in sedentary work
only. During this period, improvement in plaintiff's condition from nursing,
care, and medical treatment could reasonably have been expected.'

22

From the testimony, particularly that of Lipscomb and Dr. Chaess, it could be
concluded that Lipscomb has a ventral hernia as a result of the Rouen operation
and that his condition could be aided by further treatment, especially by being
fitted with a proper abdominal support4 and by being given sound medical
advice. It should also be noted that a repair operation was not entirely ruled out
by Drs. Russell and Chaess though discouraged by the latter. We agree that the
doctrine of maintenance and cure could not be invoked to hold appellants for
payments to Lipscomb if, under the facts, his condition amounted to permanent
disability 5 but the record reveals no meritorious reason for disturbing the
conclusions of the Trial Court that during the period of the award, ' * * *
improvement in plaintiff's condition from nursing, care, and medical treatment
could reasonably have been expected.'

23

In No. 10,115, the action for negligence and unseaworthiness, the judgment of
the lower court will be reversed and the case remanded for a new trial.

24

In No. 10,116, the judgment in favor of Lipscomb for maintenance and cure
will be affirmed.

38 Stat. 1185, 41 Stat. 1007, 46 U.S.C.A. 688

1A No opinion on rehearing for publication.

Appellees refer to Lindquist v. Dilkes, 3 Cir., 127 F.2d 21, 24, suggesting the
test presented to the jury. It is not clear from the Lindquist opinion that this is
the rule of that case. The pertinent discussion therefrom on this point is as
follows: 'If this analogy is sound, the sailor's duty is to disclose whatever he as
an ordinarily prudent person should have known is material to the risk. It might
be argued that the withholding of any medical fact either known or reasonably
to be known is fatal. This on the theory that its significance is left to the
judgment of the insurance company or the employer. The cases in our parallel
field of the law do not go so far. We think correctly because after all the
employer or the insurer can quite easily ascertain the accessory information by
proper inquiry.' (Emphasis supplied.)
The emphasized language would seem to have been intended as a qualification
of the sought for rule.
On another point not here pertinent, the Lindquist opinion has been overruled.
See Jordine v. Walling, 3 Cir., 1950, 185 F.2d 662.

As to proper hypothetical questions, see Wigmore on Evidence, Vol. 2, Section

672 et seq

Dr. Murphy, who examined Lipscomb on August 13, 1947, for the United
States Public Health Service, testified that at that time Lipscomb was not
wearing any sort of a surgical belt that he recalled. Refreshing himself from his
notes, the doctor said: 'Well, he must have been wearing it. You see, I
examined him here without anything on. I examined him in the room across the
way there, so he was probably stripped when I saw him, but I must have seen
the belt back on- 'Has a very good abdominal belt." Lipscomb testified that
during that period he was wearing a bandage which was ' * * * a wrapping
around me, and the medicine, that was to heal the scar, and this wrapping was
supposed to hold the stomach.' The support itself was in evidence (P. 15). Dr.
Chaess examined it and stated that it was not the type which would be
prescribed to support a ventral hernia

Cf. Farrell v. United States, 336 U.S. 511, 69 S.Ct. 707, 93 L.Ed. 850; Cortes v.
Baltimore Insular Line, 287 U.S. 367, 53 S.Ct. 173, 77 L.Ed. 368