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November 22, 1966

Tomas ROBLES, Plaintiff,

Levet, District Judge.

The opinion of the court was delivered by: LEVET

LEVET, District Judge.

This is a Jones Act suit for personal injuries suffered by plaintiff, a merchant seaman, on May 29, 1960, aboard the defendant's vessel, the SS Lyon's Creek. Trial was to the court.

 On or about June 15, 1960, a previous action for the injuries was instituted in this court, Tomas Robles v. Trinidad Corporation, 60 Civ. 2350. However, on or about September 13, 1960, the plaintiff signed and delivered a release and received the sum of $3,650, which release purported to end all claims arising from the injuries received on said date.

 The present action proceeds upon plaintiff's contention that the aforesaid release was invalid. Plaintiff submitted certain proof as to alleged invalidity, and in connection therewith was allowed to submit proof as to damages since the two were to some extent intertwined. Ultimately, after the commencement of the trial, this court concluded to first determine the question of the validity of the release upon the basis of the proof submitted by plaintiff and upon certain proof as to this feature submitted by defendant. The question of damages was reserved until if and when the court determined that the release was invalid. Consequently, this opinion deals solely with the question of the validity of the release.

 Plaintiff's counsel stipulated that there was no claim that any deception, coercion or overreaching was practiced and that the sole contention was that plaintiff was unaware that he was suffering from a mental illness at the time he executed the release.

 The complaint asserts in effect that the parties, plaintiff and defendant, were advised that plaintiff's injuries were slight and temporary in character and that there was a mutual mistake of fact. (Par. 7) In the pre-trial order it was stated in part that plaintiff contends that "neither plaintiff nor defendant intended to release any claim for the existing mental illness nor was either party aware of such illness."

 After hearing the testimony of the parties, examining the exhibits, the pleadings, the briefs and Proposed Findings of Fact and Conclusions of Law submitted by counsel, this court makes the following Findings of Fact and Conclusions of Law:


 1. On May 29, 1960, the plaintiff, while a member of the crew of the SS Lyon's Creek, employed by defendant as a messman, in the course of his work entered the ship's freezer, and because the latch on the inside of the freezer was out of order was unable to let himself out; and since the alarm system, normally activated from inside the freezer, was also out of order, plaintiff was unable to signal his predicament or to leave the freezer, where he remained for about one hour in a temperature of approximately 15 degrees Fahrenheit, clad in a teeshirt and cotton pants. By reason of the aforesaid conditions the SS Lyon's Creek was unseaworthy.

 2. After this incident plaintiff was taken to the United States Public Health Service Hospital at New Orleans, Louisiana. The provisional diagnosis was frostbite of the right thumb and acute anxiety reaction. Plaintiff complained of tenseness, nervousness, headache, aching in the right hand, chest pain, insomnia, fever and chills. He was placed on phenobarbital and nocturnal sedation; by June 1, 1960 his only complaint was of nervousness. On the same day he was discharged, not fit for duty for one week.

 3. From June 13, 1960 to June 29, 1960, plaintiff was an in-patient at the United States Public Health Service Hospital at Staten Island, New York. The diagnosis there was "psychoneurotic reaction with somatic symptoms." A psychiatric examination revealed that plaintiff was tense, somewhat frightened but alert and correctly oriented, although mildly depressed, and "verbalizing" feelings of not wanting to return to sea again. Plaintiff stated that the uppermost thought in his mind when locked in the freezer was, "I would die." He was generally anxious but not suicidal; his behavior was said to be unremarkable. During his stay at the hospital at Staten Island he complained intermittently of pain in all his joints and of anxiety and was given Meprobamate which did not relieve his tension. The record also stated: "It was our feeling that while litigation is pending, treatment of this man would be difficult." On June 22, 1960, plaintiff was given building privileges, apparently indicating a freedom of movement through the hospital building. Plaintiff requested to return to Puerto Rico, where his wife and family resided. On June 29, 1960 he was discharged, not fit for duty, with a letter recommending treatment at the Public Health Hospital in San Juan, Puerto Rico. The diagnosis at Staten Island was "post traumatic neurosis, psychoneurosis with somatic symptoms." (Ex. 3)

 4. On or about or before June 6, 1960, plaintiff retained one Clara Fischer, an attorney, to bring a claim against the defendant, and such an action was instituted on or about June 15, 1960. In said action in this court (60 Civ. 2350) the complaint, among other things, charged that by reason of the refrigerator or freezer incident on the said vessel the plaintiff became sick and disabled, requiring his hospitalization and requiring him to leave his employment on board the vessel; that he received treatment in the hospital and "will never in the future be able to work in the same manner as heretofore and plaintiff's earning power will be greatly diminished * * *," asking damages on the first cause of action in the sum of $75,000.00.

 Mrs. Fischer is an experienced member of the bar of the State of New York, having been admitted in 1951 or 1952, and having specialized in personal injury and seamen's cases. Mrs. Fischer testified that since 1960 she handled approximately 600 seamen's cases per year, most of which were settled. Counsel conceded that Mrs. Fischer was not charged with incompetency. Between June 6, 1960 and September 13, 1960, Mrs. Fischer received certain medical and hospital records or portions thereof, including the following:

(a) A medical report of duty status from the United States Public Health Service Hospital, Staten Island, New York, dated August 15, 1960, indicating "not fit for duty"; a medical report of duty status from the United States Public Health Service Hospital, New Orleans, Louisiana, dated May 30, 1960, indicating exposure to cold, frostbite and acute anxiety reaction; a medical report from the United States Public Health Service Hospital, Staten Island, dated June 3, 1960, "not fit for duty"; a similar report from the Staten Island hospital, dated July 19, 1960; another report of like character from the same hospital, dated August 4, 1960; a report from the same hospital, dated June 24, 1960, indicating "not fit for duty," with a diagnosis of "post-traumatic psychoneurotic reaction with somatization." (Ex. 15)
(b) Copy of letter dated June 29, 1960, from the Deputy Chief, United States Public Health Service, Psychiatry Service, Staten Island, to the medical officer in charge of the Public Health Service Outpatient Clinic, San Juan, Puerto Rico, in reference to the plaintiff, advising that there was a diagnosis at Staten Island of "post traumatic neurosis" and that plaintiff's complaints were "joint pains and depressive and fearful feelings."
An Abstract from the Clinical Record of plaintiff, revealing complaints of severe nervousness and pain and admission to the hospital at Staten Island on June 13, 1960 for symptoms of "tension, nose-bleeds, and joint pains" with a diagnosis of "post traumatic neurosis and psychoneurosis with somatic symptoms." (Ex. 16)

 I find that the medical records clearly evidenced and diagnosed plaintiff's neurotic condition.

(c) Extracts from the Staten Island Hospital Record, page 2, which notes under "Doctor's Progress Notes" in reference to plaintiff's hospitalizations: "* * * whose 'real' or 'neurotic' illness has necessarily been confused by the apparent spectre of litigation" and that the physical examination reveals nothing objective, the impression stated being "probably primarily psychoneurosis." (Ex. 17)

 (5) Plaintiff's attorney was fully aware of plaintiff's medical problems, as appears in Finding No. 4 herein, and, as appears in Finding No. 7 herein, in discussing settlement with the defendant's representative, Mr. Wardle of the Shipowner's Claims Bureau ...

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