Union Carbide & Carbon Corporation v. Stapleton

• Decision Date: 05 October 1956
• Docket Number: No. 12535.,12535.
• Citation: 237 F.2d 229
• Parties: UNION CARBIDE & CARBON CORPORATION, Appellant, v. James A. STAPLETON, Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

237 F.2d 229 (1956)

UNION CARBIDE & CARBON CORPORATION, Appellant, v. James A. STAPLETON, Appellee.

No. 12535.

United States Court of Appeals Sixth Circuit.

October 5, 1956.

Clyde W. Key, Knoxville, Tenn., for appellant.

Olen Henderson, Knoxville, Tenn., Ben F. McAuley, Knoxville, Tenn., on brief, for appellee.

Before SIMONS, Chief Judge, and ALLEN and STEWART, Circuit Judges.

STEWART, Circuit Judge.

This is an appeal from a judgment for damages for personal injuries entered upon a jury's verdict in a diversity of citizenship case.

The appellee, James A. Stapleton, entered the employ of the appellant company as a uniformed plant guard in 1947 when the company took over the operation of the so-called "Y-12" plant at Oak Ridge, Tennessee. Stapleton had originally been employed as a guard at the Y-12 plant in 1944 by a predecessor company, and all that company's personnel records, including Stapleton's, were turned over to the appellant company in 1947 when it took over the plant's operation.

Stapleton had served overseas in the first world war and had been in a mustard gas attack, receiving only first aid treatment at the time. About five years after the war he had had an X-ray of his lungs made by a private physician for the purpose of applying for a disability pension. The physician advised him that the X-ray disclosed a gas spot on his left lung, but that it was dry in nature and should never give him any trouble.

Both the appellant company and its predecessor maintained a medical department staffed by physicians and nurses in full time employ. Plant employees were required to report periodically to this medical department for physical examinations. From the time he was first employed in 1944 until February, 1952, fourteen X-rays were made of Stapleton's chest and lungs at this medical department. These X-rays were interpreted by the department staff as indicating that Stapleton was suffering from an arrested case of pulmonary tuberculosis, but that during the eight year period between the first and last X-ray examinations no significant change had occurred in the condition of his lungs. These interpretations and findings were entered in Stapleton's medical records kept in the appellant company's custody.

Dr. Ann Robinson of the appellant's medical department testified that she advised Stapleton in 1944 that he had tubercular lungs, but that the condition was apparently arrested, and that she further advised him of what symptoms would indicate that his condition might be deteriorating, in which case he should immediately get in touch with his private physician or come back to the appellant's medical department. She testified that she had had repeated discussions of this nature with Stapleton between 1944 and 1952. Stapleton denied that he had ever been told by anyone in the appellant's employ that he had a tubercular condition. He conceded that Dr. Robinson had told him in 1951 that he had a spot on his lung which did not seem to be getting any worse, but he stated that the word "tuberculosis" was not mentioned and that he had assumed that the spot Dr. Robinson referred to was the same one discovered by the physician who had X-rayed his chest after his discharge from the Army.

Stapleton last worked for the appellant company on February 12, 1953, almost a year after the last X-ray examination was made. He went home that day because of illness and stayed there for the next two months, consulting a private physician in February and another one in March. On April 10, 1953, the second physician made an X-ray examination of his chest and lungs and discovered that he was suffering from active pulmonary tuberculosis. Stapleton was thereupon taken to a veterans' hospital where he remained at the time of the trial of this case, totally and permanently disabled by his tubercular condition. There was evidence to support a finding that Stapleton's personal physician would have made an X-ray examination at an earlier time if Stapleton had not informed him, "he had been X-rayed at Oak Ridge and that they told him he was all right."

The complaint in this action was filed December 8, 1953. It was grounded upon the negligence of the appellant company in failing to disclose to Stapleton that he was suffering from tuberculosis. It alleged that had he been apprised of his condition he would have had an opportunity to seek medical treatment which would have arrested the onslaught of the disease.

In defense, the appellant company denied the factual allegations of the complaint, alleging that Stapleton had been completely and accurately informed that he was suffering from apparently quiescent tuberculosis, and cautioned as to the care he should exercise. The appellant also interposed three affirmative defenses: (1) that the action was barred by the Tennessee statute of limitations; (2) that since the appellant had exercised ordinary care in the employment of the physicians who examined Stapleton it was not liable to him as a matter of law even if they were negligent, upon the theory that by their very calling, physicians must be classified as independent contractors; and (3) that Stapleton was guilty of contributory negligence.

Whether Stapleton was informed by his employer of his tubercular condition, whether the failure to inform him was a proximate cause of his permanent total disability, and whether he was guilty of contributory negligence in not sooner learning for himself that he was afflicted, are questions no longer in issue. Substantial evidence on both sides of these questions was before the jury, and the verdict rendered compels us to accept as facts that the appellant's physicians never informed Stapleton of his condition, that he learned of it for the first time in April, 1953, that he would not in the exercise of ordinary care have learned of it earlier, and that the failure to inform him was a proximate cause of his total disability.

The issues that remain on this appeal, therefore, are whether the failure of the appellant's physicians to advise Stapleton of his tubercular condition could support a cause of action against the appellant, and whether, if there was such a cause of action, it was barred by the statute of limitations. The various matters assigned as error by the appellant are for the most part simply different aspects of these two fundamental issues.

In order to put these issues into proper perspective, it is as important to emphasize what questions are not involved in this case as it is to recognize those that are. It should thus be pointed out that there was no proof whatever of negligence on the part of the appellant's physicians in the diagnosis of Stapleton's condition. All the expert witnesses agreed that the diagnosis of inactive tuberculosis which was made and recorded in the company's files was an accurate one. There was no evidence that the inactive tuberculosis which Stapleton had throughout the period he was being periodically examined was caused by fault of any kind on the part of the appellant's physicians. In short, this was not an action for malpractice.

It follows that, despite the briefs and arguments of counsel for the parties to the contrary, this case does not present the question of when, if ever, a principal may be liable for the negligent failure of a carefully selected physician in his employ to exercise the skill and judgment of a reasonably prudent and careful physician. See Quinn v. Kansas City, M. & B. Railroad Co., 1895, 94 Tenn. 713, 30 S.W. 1036, 28 L.R.A. 552; cf. Knox v. Ingalls Shipbuilding Corporation, 5 Cir., 1947, 158 F.2d 973; Mrachek v. Sunshine Biscuit, Inc., 1954, 308 N.Y. 116, 123 N. E.2d 801; see cases collected in 35 Am. Jur., Master and Servant, § 111.

The question here, rather, is whether the appellant itself had a duty to warn Stapleton of a danger known to it and unknown to him. Written records of the detailed and accurate findings of the appellant's physicians were, from the first examination to the last, in the custody of the appellant company. To have notified Stapleton of these findings would have been a simple matter, not requiring the professional skill of a physician. Disclosure could perhaps most conveniently have been made by personnel in the appellant's...