Before GOODRICH, KALODNER and HASTIE, Circuit Judges.
This is a seaman's action instituted against defendant ship owner to recover damages for an assault by a member of defendant's crew. The case was presented below upon a complaint for (a) negligence under the Jones Act, 46 U.S.C.A. § 688; (b) unseaworthiness under the admiralty and maritime laws; (c) maintenance and cure.*fn1 The District Court, sitting without a jury, held a previously negotiated release for $4,000 invalid, and entered judgment for the plaintiff in the sum of $16,000. 119 F.Supp. 838.
The relevant facts are as follows: plaintiff Thompson, a veteran ship's cook, was employed on one of defendant's tankers. On January 12, 1950, Thompson claims to have seen one Medina, a crew messman, engaged in a homosexual act with two other members of the crew. He immediately reported the matter to the chief steward and to the union delegate. On January 13, 1950, a union meeting was called to decide whether the incident should be reported to the Coast Guard or Medina compelled to leave the ship. Medina left the meeting a few minutes before the group dispersed. Some short time later Thompson, as he turned the corner on the boat deck, was struck from behind on the head by a meat cleaver wielded by Medina.
Thompson was removed from the ship on January 15, 1950, and taken to the Marine Hospital at Corpus Christi, Texas. He remained at this institution until February 10, 1950. Then followed periods of hospitalization at various Marine hospitals:
New Orleans February 10 to March 18 Galveston, Texas March 20 to March 21 Galveston, Texas March 25 to April 1 Stapleton, Staten Island April 9 to April 28. His condition was diagnosed as "Encephalopathy due to trauma" or "disease of the brain caused by wound or injuries."
After his discharge from Stapleton on April 28, 1950, the plaintiff lived for a few days at the Seaman's Church Institute on South Street, New York. He then voluntarily called on defendant's agents, where after complaining of head pains, he expressed a desire to go to Hot Springs, Arkansas for a period of rest. Defendant's agents asked him how much he needed for this purpose and in accordance with the plaintiff's request gave him $300.00.
Three weeks later he returned and at defendant's suggestion was examined by Dr. Charles A. Farr on May 18, 1950. Dr. Farr reported that the plaintiff had a ten percent permanent disability and would not be able to work for three months. The prognosis made by the Stapleton Hospital had been for a "good recovery", and that institution suggested he would be able to work on May 29, 1950 or nearly three months earlier than had been suggested by Dr. Farr, the defendant's own physician.
Thompson was then sent to one Mr. Barron of the Shipowners Claims Bureau, an organization which adjusts claims for shipowners. There he signed a release of all claims arising out of the assault for $4,000. During this negotiation plaintiff was not represented by counsel.
Since the signing of the release plaintiff has continued to suffer from the effects of the head blow, having been hospitalized at New Orleans from November 13, 1952, to December 15, 1952, and at Stapleton from February 16, 1954 to February 23, 1954. In fact, Thompson is still receiving out-patient treatment.
While he has procured work at levels of remuneration and status above and below that which he commanded prior to the assault, it is patent that his injuries have proved more serious than was thought at the time of the release.
We are of the opinion that the District Court committed error in striking down this release. We therefore confine our discussion to this facet of the appeal.
Garrett v. Moore-McCormack Co., 1942, 317 U.S. 239, 63 S. Ct. 246, 87 L. Ed. 239, is the leading authority as to the criteria by which the conclusiveness of a release is to be judged. From that case the following principles emerge:
(1) The burden of proving the validity of a release rests upon one who sets up the release and this burden can be carried only by showing that "it was executed freely, without deception or ...