General Electric Company v. Rees, 13895.

• Decision Date: 24 November 1954
• Docket Number: No. 13895.,13895.
• Citation: 217 F.2d 595
• Parties: GENERAL ELECTRIC COMPANY, a corporation, Appellants, v. Max REES and Mrs. Max Rees, husband and wife, individually, and Max Rees, as guardian ad litem for Sally Kay Rees and Judy Rees, Minors, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

217 F.2d 595 (1954)

GENERAL ELECTRIC COMPANY, a corporation, Appellants, v. Max REES and Mrs. Max Rees, husband and wife, individually, and Max Rees, as guardian ad litem for Sally Kay Rees and Judy Rees, Minors, Appellees.

No. 13895.

United States Court of Appeals Ninth Circuit.

November 24, 1954.

Moulton, Powell, Gess & Loney, Kennewick, Wash., for appellant.

Theodore D. Peterson, Horrigan, Merrick, Peterson & Merrick, Pasco, Wash., for appellees.

Before ORR, FEE and CHAMBERS, Circuit Judges.

JAMES ALGER FEE, Circuit Judge.

This is an action for damages resulting from alleged negligence. It was set up in plaintiffs' second cause of action in general that one Harvey, employed by General Electric, was in the course thereof driving a bus on a public highway on January 15, 1952. It is further claimed that Harvey was suffering from a heart condition and hardening of the arteries to such an extent that his continued employment as a bus driver was dangerous to the public at large. It is complained that Harvey, under these circumstances, suffered a heart attack as a result of which the bus collided with the dwelling of plaintiffs Rees and caused personal injuries and destruction of property.

The allegation of negligence is as follows:

"* * * that the said Ivan C. Harvey had been examined and treated by physicians in the employ of the defendant, and that the defendant knew or should have known of the state of health of Ivan C. Harvey, and that he was afflicted with hardening of the arteries and a heart condition and subject to heart attacks and that therefore the defendant knew or should have known that his continued employment as a bus driver would be dangerous to the public at large and knew or should have known that his continued employment might result in injury to persons and property * *."

A motion to dismiss the complaint was overruled.

The defendant answered, setting up the death of Harvey in the course of operating the bus, pleading act of God and unavoidable accident, but otherwise denying the allegations except that the happening of the accident, the employment of Harvey in line of duty at the time thereof and certain injury of plaintiffs and to their property were admitted.

The case came on for trial. Briefly, the evidence showed Harvey was in the employ of defendant and drove a shuttle truck to carry other employees of defendant to and from the Richland plant. Harvey was taken ill and was hospitalized under the care of his own personal physician, Dr. Corrado, from December 1 to December 24, 1951, on which day he was discharged. On December 27, 1951, his private physician released him to return to work.

General Electric had a policy which required any employee who had been ill to present himself to a doctor retained by the company before the former could return to work. Harvey, in accordance therewith, advised Dr. Martin L. Weitz, an industrial physician employed by the company, that he had had an attack of bronchial asthma, from which he had recovered after having been hospitalized, and that his personal physician had authorized his return to work. The physician inspected Harvey's chest and listened to his heart and lungs with a stethoscope. There was no record dealing with Harvey's hospitalization in possession of the company, and the doctor did not have any information that Harvey had previous heart trouble.

An autopsy was performed, and it was determined that a miocardial infarct, which is a region of death of the heart muscle, was the cause of death, that this had existed from two to seven days before death, and that it could not, in the opinion of the specialist, have been detected prior to seven days before that time. The expert testified that there was a coronary thrombosis which he believed occurred immediately before the infarct.

The hospital records from December 1 to December 24 were introduced in evidence, which showed that Dr. Corrado was giving digitalis to Harvey there, and he testified that he gave this drug to him after he left the hospital. Also, electrocardiograms showed that there was a disturbed condition of the heart.

An expert from a different city testified that he had examined the post mortem report and the hospital records and, in his opinion, Harvey had a serious heart condition and that, if he had had Harvey as his patient, he would not have permitted him to go back to work.

The court instructed the jury that there was no duty of the company to examine Harvey before he went back to work, but, having assumed to examine him, the company was liable if the "physical examination was not carried out with reasonable care and that the exercise of reasonable care of the defendant's agent or employee could or should have revealed the employee, Ivan Harvey, was not physically competent for the purpose for which he was retained in employment by the defendant."

The second count of the complaint did not state a cause of action or a claim upon which relief could be granted. There are three essentials for such a showing. A duty must be established owing by defendant to plaintiffs. A breach of the particular duty must be counted upon. It must be shown that, as a proximate result of the breach, the plaintiffs suffered injury legally compensable and not merely damage.

The gist of this count is that Harvey, the driver, "was in poor health and suffering from a heart condition and hardening of the arteries," that Harvey "had been examined and treated by physicians in the employ of defendant and that the defendant knew or should have known of the state of health of Ivan C. Harvey and that he was afflicted with hardening of the arteries and subject to heart attacks and that therefore the defendant knew or should have known that his continued employment would be dangerous to the public at large and knew or should have known that his continued employment might result in injury to persons and property."

Defendant owes no such duty to members of the general public. It is conceivable that an industrial concern might owe a duty to the employee to have a doctor examine him in order that he might not be placed in an extra-hazardous situation on account of disabilities not obvious to an ordinary observer or of which it obtained knowledge in fact. More remotely, fellow employees might rely upon the performance of this obligation. But driving the vehicle described certainly would not fall into a classification of extra-hazardous employment either for Harvey or for the fellow employees who rode as passengers. A motor vehicle is not a dangerous instrumentality. Obvious physical defects can be contemplated which might place a duty on the employer even here. The usual charge in that connection is negligence of the employee, which is not the gist of this count. If otherwise valid, the employer must still have had actual knowledge. The employer would, however, owe no duty to the general public. Even the enactments which require an employer "to use every care, device and protection" to protect life and limb do not raise obligations in favor of members of the public. Here the pleading requires the court to hold defendant liable to an insurer against the happening of the accident, not because...