Appeal from the United States District Court for the Southern District of New York.
Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
This is an appeal from a judgment and order dismissing the complaint in an action by a seaman for personal injuries suffered on or about June 10, 1938, when acting as a cook on board the defendant's vessel S.S. Exchange. His injuries arose from being struck on the head by the handle of a defective meat grinder which came apart from the machine. He received treatment at the Marine Hospital in New York and there was examined and treated by physicians of the hospital who were entirely independent of the defendant. The clinical records of the hospital showing the results of examinations on August 8 and 23, 1938, indicated injuries from concussion which were apparently not of a serious character. He was an outpatient there from August 8 to October 31, 1938.
The plaintiff employed an attorney who presented the defendant with a claim for damages arising from his injuries and finally negotiated a settlement with the defendant at $180. The settlement covered all his injuries known and unknown, present and future, for which the defendant might be liable. The release and accompanying documents which included a certificate signed by Irving J. Heyman, a lawyer in the office of Mr. Lewinson, who represented the seaman, and by A. T. Johnsen, who represented the defendant, appear in the footnote.*fn1
The plaintiff says in his affidavit:
"That both the defendant's attorneys and deponent's attorneys believed that the sum of $180.00 was a fair, just and reasonable settlement under all of the circumstances.
"There was no attempt at overreaching or unfairness on the part of anyone concerned. There was a mutual mistake as to the nature and extent of the injuries and deponent feels that such mistake because of incorrect diagnosis of deponent's condition should not be used as a bar to deponent's cause of action."
After the settlement and the execution of the release the seaman was examined by another physician. The examination tended to show that he had received a fracture of the skull which was causing continuous pain, which prevented him from working and was bound to result in permanent disability. He employed another attorney and brought the present action in which the defendant pleaded the release as a bar.
The defendant moved in the action on affidavits to obtain a summary judgment dismissing the complaint and his motion was granted by the District Court. We think that the decision was right and should be affirmed.
The question before us is whether a seaman acting under the advice of counsel may execute a binding release specifically covering known and unknown injuries, illness and disabilities which will preclude him from afterwards avoiding the release and suing upon his claim if he discovers that both he and the party against shom the claim existed were mistaken at the time he gave the release as to the extent of his injuries.
The appellant contends that a release predicated upon an erroneous conception of the nature of the injuries does not deprive a litigant of his day in court to try out his claim on the merits and relies especially on our recent decision in Bonici v. Standard Oil Co., 103 F.2d 437, 438, in which a seaman had given a release of his claim for maintenance and cure arising from personal injuries. The seaman there had signed a release of his employer, the Standard Oil Company, on the advice of the latter's phycician that there was nothing wrong with him arising from his injuries. This representation was given in good faith but was erroneous. Bonici did not, like Sitchon, have the advantage of the independent advice of his own phydician and lawyer, and only acted on the advice of one who would naturally have been partial to his employer.While we there held that the release was viodable and did not bar recovery and said that "the rule to be applied is * * * that such releases * * * are jealously scrutinized to see that these 'wards of the admiralty' have not been overreached", we went on to say: " * * * 'one who claims that a seaman has signed away his rights to what in law is due him must be prepared to take the burden of sustaining the release as fairly made with and fully comprehended by the seaman' (Harmon v. United States, 5 Cir., 59 F.2d 372, at page 373), neverthless a release fairly entered into and fairly safeguarding the rights of the seaman should be sustained. Any other result would be no kindness to the seaman, for it would make all settlements dangerous from the employer's standpoint and thus tend to force the seaman more regularly into the courts of admiralty. Even if a seaman is the court's ward, the court cannot be always at hand to watch over him, for it can only move ponderously in a formal lawsuit. Fair settlements are in the interest of the men, as well as of the employers."
It is a different thing to uphold a settlement by a seaman in which the compensation paid for his injuries is inadequate and the only advice he has received is that of the physician of the employer from sustaining one where, as here, he has the advice of his own doctor and lawyer whose only bias would probably be in his favor. If such a settlement as the one in the case at bar is voidable, no release by a seaman could ever be free from attack, if he subsequently discovered that his injuries were greater than he anticipated when executing the release.
When a seaman has made a settlement after full investigation and with independent advice, we can see no ground for holding it invalid. The question in any case is whether the seaman, if he is acting alone, has intelligence enough fully to understand the situation and the risk he takes in giving up the right to prosecute his claim or whether, if he is acting under advice, that advice is disinterested and based on a reasonable investigation. Here the seaman and his attorney before making the settlement relied on two examinations by the Marine Hospital and the ...