Poindexter v. Groves (197 F.2d 915, 1952)

CHASE, Circuit Judge.

This appeal is from a judgment on a verdict for the plaintiff in a suit under the Jones. Act, 46 U.S.C.A. § 688, brought by the administratrix of the estate of Carl Poindexter who was a messman employed on the defendants’ S.S. Irvin S. Cobb. The decedent became ill and' died on the ship, allegedly because of the negligent failure of the master to provide prompt and adequate medical and surgical care. The appellants seek reversal because of the denial of their motions to dismiss the complaint and set aside the verdict on the ground that negligence had not ‘ been proved and, if proved, had not been shown to have been the proximate cause of. the death. They also rely upon claimed error in the charge, in the admission of evidence relating to the issue of damages and in the conduct of the jury during its deliberations.

The decedent was taken sick on February 3, 1948, while the vessel was at Cardenas, Cuba on a voyage on which its next port of call was Havana. He suffered from severe abdominal pains and, on the following day, was unable to work. His abdomen became swollen and very hard and he vomited frequently. He asked for medical treatment and, on the afternoon of February 4th, the chief mate, in the absence of the captain, sent him to a hospital at Cardenas where his sickness was diagnosed as a gastric ulcer with the need for surgery indicated. The surgical facilities at the hospital were limited, however, and, the attending physician, being informed that the vessel was to leave for Havana, a voyage of about seven hours, at five o’clock on the afternoon of February 5, discharged and returned the decedent to the ship at about 2:30 that afternoon with a prescription for medical treatment and directions to send him to the hospital in Havana if his condition did not improve. The prescribed medical treatment was given but the vessel’s departure was delayed until 9:30 o’clock the following morning and it did not arrive at IJavana until about 5:30 P. M. that day, February 6th.

Meanwhile, the decedent continued to be in great pain and his condition apparently kept getting worse. He asked to be returned to the hospital while the ship was still in Cardenas but the master refused and, shortly before the vessel arrived at Havana, he requested hospitalization there. The master did, soon after arrival at Havana, ask the ship’s agent there to obtain a doctor but, when told that it could not be done at that time, did nothing further about it, the master then going ashore on personal business.

At about 11:30 P. M. the decedent suddenly screamed and was found by the chief mate and others who responded to be in a state of collapse, either unconscious or semiconscious. A doctor was then summoned who reached the ship a little after midnight. He recommended immediate removal to a hospital but, before that could be done, death occurred, at 1:15 A. M. on February 7th. An autopsy disclosed that -it resulted from peritonitis caused by a perforated ulcer.

There was substantial evidence from which the jury could have found that the ■captain was negligent in not providing prompt medical care to the decedent both ■while the ship was at Cardenas and when It arrived at Havana. With respect to Cardenas, the captain knew that the medical treatment prescribed by that hospital was given upon the assumption that the ship would sail in time to reach Havana on the evening of February Sth. There was ample ■evidence to' show that he knew that the messman was seriously ill and in great pain and that he seemed to be getting progressively worse while the ship remained in Cardenas. He could have returned the decedent to the hospital as he was asked to do