Harper v. Matson Navigation Co.

SULLIVAN, J.

This is an action by a seaman brought to recover maintenance, cure and damages for personal injuries sustained while a member of the crew and employed aboard defendant’s vessel. From a judgment in favor of the defendant, after a nonjury trial, plaintiff appeals.

Plaintiff’s complaint filed February 19, 1959, sets forth five separately stated causes of action. The first count seeks recovery of maintenance and cure under the general maritime

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law; the second and third counts seek recovery of loss of earnings and general damages, under maritime law, on the theory of the alleged unseaworthy, unsafe and dangerous condition of the vessel; the fourth and fifth counts seek recovery of general damages based on the negligence of the defendant under the Jones Act. (41 Stat. 1007; 46 U.S.C.A. § 688.)

Plaintiff was employed as a second cook and baker by the defendant Matson Navigation Company, hereafter called Matson, on its cargo vessel the S. S. Hawaiian Pilot. On December 18, 1957, while the vessel was on the Pacific Ocean, two days away from and headed for San Francisco, plaintiff and an assistant cook were working in the walk-in refrigerator or icebox, shifting vegetables so that the icebox could be cleaned. The chief cook, Munz, was also working in the icebox, lifting the gratings which served as floorboards and standing them up against the bulkheads, so that the flooring as well as the vegetables could be placed out of the way, during the cleaning of the box.

According to the testimony of the plaintiff, he saw Munz handling the floorboards “and the next thing I knowed, I was laying on potatoes and the board had hit and struck my back. ’ ’ Munz, however, testified in defense that no grating or floorboard slipped out of his hand and hit the plaintiff. Nor did he see any grating fall on the plaintiff’s back on that occasion. When asked on redirect examination if plaintiff had told him that he injured his back lifting sacks of potatoes, Munz stated: “Well, he did say something about it. He said he hurt his back. At that time we were working on sack of potatoes so I was—thought that he hurt his back on account of that.” He also denied that, as testified to by the plaintiff, he had lifted a grating off of plaintiff’s back. Some time after the accident, according to Munz, the plaintiff asked Munz to be a witness for him and to sign a typewritten statement which apparently had been already prepared. Munz refused to sign it because it was not accurate, made some corrections, and told the plaintiff to have it retyped, but the plaintiff never did so.