Dickerson v. American Sugar Refining Co.

• Decision Date: 19 March 1954
• Docket Number: No. 11160.,11160.
• Citation: 211 F.2d 200
• Parties: DICKERSON v. AMERICAN SUGAR REFINING CO., Inc.
• Court: U.S. Court of Appeals — Third Circuit

211 F.2d 200 (1954)

DICKERSON v. AMERICAN SUGAR REFINING CO., Inc.

No. 11160.

United States Court of Appeals Third Circuit.

Argued December 11, 1953.

Decided March 19, 1954.

Charles A. Lord, Philadelphia, Pa. (Richter, Lord & Farage, Philadelphia, Pa., on the brief), for appellant.

Harry R. Axelroth, Philadelphia, Pa. (Axelroth & Porteous, Philadelphia, Pa., on the brief), for appellee.

Before KALODNER, STALEY and HASTIE, Circuit Judges.

STALEY, Circuit Judge.

This case raises the perennial problem of the "borrowed servant" and requires that we decide whether there was sufficient evidence to justify a jury finding that the nurse who treated plaintiff was, while rendering that treatment, defendant's servant.

Defendant maintains a sugar refinery in Philadelphia. In connection with the refinery, it maintains a dispensary. The dispensary is permanently staffed by a registered nurse who is a full-time employee of defendant. A doctor is in attendance at the dispensary for a few hours a day. He testified that he was retained as a "contract physician" to treat all accident cases that came in and those which had occurred in his absence and had been given first aid by the nurse. He was to administer to injured men who were defendant's employees. His testimony was to the effect that he administered also to men injured at the refinery who were employees of third persons, but that in such cases there was a tacit understanding between himself and the stranger employer's insurance carrier that the latter would pay for such services on a fee basis.

Defendant engaged Charles Schwertners and Sons, Inc., to tear down an old stable at the refinery. Plaintiff, a carpenter, was an employee of Schwertners. While working on the stable, he ran a splinter into his hand and went to defendant's dispensary to have it removed. The nurse tried to remove it but could not and, thereupon, called in the doctor, who was then in attendance, and he removed it. Because of the danger of plaintiff's contracting tetanus, it was necessary that he be given a shot of tetanus antitoxin. This was done by the nurse, and, according to plaintiff's evidence, the jury properly could have found that it was done negligently. The testimony was conflicting as to the nurse's post-injection instructions to plaintiff, but, in any event, he returned to his work. About fifteen minutes later, he was brought back to the dispensary on a stretcher in a state of shock and was then taken to a hospital. Plaintiff's medical expert testified that, in his opinion, plaintiff's illness and his consequent disability to work as a carpenter were caused by the allegedly improper injection of the antitoxin.

After all the evidence was in, defendant moved for a directed verdict on the ground that plaintiff had not established that, while treating plaintiff, the nurse was its servant. This motion was reserved, and the court then instructed the jury, discussing the servant question and that of contributory negligence. The jury's general verdict was in favor of defendant. Plaintiff then moved for a new trial, alleging that it was error to submit the issue of contributory negligence to the jury, timely objection having been made at the trial. The court determined that excessive caution had caused it to allow the jury to pass on the servant issue and held that the question should have been decided in defendant's favor on defendant's motion for a directed verdict. The motion for a new trial was dismissed, and this appeal followed.

Diversity of citizenship is the sole basis for federal jurisdiction here, and, thus, we apply Pennsylvania substantive law.

First, we must set the stage. As we have said, the jury was told to pass upon the servant question and that of contributory negligence, among others. It is true that there was conflicting testimony as to whether the nurse told plaintiff to remain in the dispensary so that his reaction to the injection could be observed. Assuming that she did so instruct him, he disregarded those instructions and went back to his work. This was thought such evidence of contributory negligence as to require its submission to the jury. But the trouble is that there was no evidence, from layman or doctor, that plaintiff's returning to work could have been any kind of a cause of his injuries. As to the defense of contributory negligence, it is beyond question that defendant must show, not only that plaintiff failed to exercise reasonable care for his own safety, but also that such failure legally contributed to his injury. Here, there was no evidence on the causal connection and, therefore, the matter should not have gone to the jury. Haywood v. Jones & Laughlin Steel Corp., 3 Cir., 1953, 205 F.2d 775. The result is that the case is in this posture on appeal: The jury was told to decide two questions, among others, that of master and servant and that of contributory negligence. But the latter was not a jury question. By general verdict, it found for defendant, so that we cannot tell upon which ground plaintiff lost. Hence, although the fact finder decided in favor of defendant, we must view the evidence in the light most favorable to plaintiff when we review the servant issue.

Pursuant to a request under Rule 36 of the Federal Rules of Civil Procedure, 28 U.S.C., defendant admitted that the nurse was in its employ on the day of plaintiff's injury. Plaintiff argues that that admission was enough to get him to the jury on the servant issue. Defendant's reply depends upon the status of the doctor. It is said that the doctor was an independent contractor. Defendant contends that, conceding, as indeed it must, that the nurse was in its employ as to matters generally, at the time when she was helping the doctor to treat persons who were not defendant's employees she was the doctor's servant and not defendant's. This view was accepted by the district court. We agree that it is a permissible view, but we think on this record it is not the sole permissible view and that the jury properly could have found that the nurse was defendant's servant.

The district court felt that the evidence on the servant issue was undisputed and, therefore, that it was a question for the court under Mature v. Angelo, 1953, 373 Pa. 593, 97 A.2d 59. It is true that the testimony on each individual factor bearing on the servant issue was largely undisputed, but we think the evidence, taken as a whole, was clearly subject to inconsistent inferences, and that is the...