Nietes v. American President Lines, Ltd.

• Decision Date: 23 November 1959
• Docket Number: No. 27807.,27807.
• Citation: 188 F. Supp. 219
• Court: U.S. District Court — Northern District of California
• Parties: Iluminado NIETES, Administrator of the Estate of Julito Nietes, deceased, Libelant, v. AMERICAN PRESIDENT LINES, LTD., a corporation, William Barna, Elizabeth Martin, Katherin McCarthy, First Doe through Tenth Doe, inclusive, Respondents.

188 F. Supp. 219

Iluminado NIETES, Administrator of the Estate of Julito Nietes, deceased, Libelant, v. AMERICAN PRESIDENT LINES, LTD., a corporation, William Barna, Elizabeth Martin, Katherin McCarthy, First Doe through Tenth Doe, inclusive, Respondents.

No. 27807.

United States District Court N. D. California, S. D.

November 23, 1959.

Jack H. Werchick and Martin J. Jarvis, San Francisco, for libelant.

Peart, Baraty & Hassard, and Lillick, Geary, Wheat, Adams & Charles, San Francisco, Cal., for respondent.

SWEIGERT, District Judge.

This is a libel in admiralty brought under the Death on the High Seas Act, 46 U.S.C.A. § 761 et seq., (1920), by the father of the deceased child, as administrator of his son's estate. Libellant alleges that decedent became ill while traveling as a passenger on the high seas on board a regular passenger vessel, belonging to respondent shipowner, and that he subsequently died.

In its first claim, libellant asserts that the death was caused by negligent treatment by employees of the defendant, a physician and nurses, and he seeks to recover damages for wrongful death against the nurses, the physician, and also against the shipowner under the doctrine of respondeat superior.

The libel contains a second claim for relief, which we will discuss later.

As to the first claim for relief, respondent shipowner seeks dismissal, relying upon the ancient rule that a shipowner is liable for its negligence in hiring an incompetent physician, but is not liable for negligent treatment by him. Laubheim v. De Koninglyke N. S. Co., 1887, 107 N.Y. 228, 13 N.E. 781; The Great Northern, 9 Cir., 1918, 251 F. 826; The Korea Maru, 9 Cir., 1918, 254 F. 397. The rationale of this rule is that a doctor is, for purposes of medical treatment, an independent contractor, and not a servant, and that, therefore, the employer should not be held liable for the doctor's negligent treatment. The older cases, especially in the admiralty field, which have accepted this rationale, are cited, and we think, with implied criticism in De Zon v. American President Lines, 318 U.S. 660, 666, 63 S.Ct. 814, 87 L.Ed. 1065 (footnote 2).

It is our opinion that, where a ship's physician is in the regular employment of a ship, as a salaried member of the crew, subject to the ship's discipline and the master's orders, and presumably also under the general direction and supervision of the company's chief surgeon through modern means of communication, he is, for the purposes of respondeat superior at least, in the nature of an employee or servant for whose negligent treatment of a passenger a shipowner may be held liable. The same would be true, a fortiori, as to a ship's nurses.

While it has been stated that "there is no more distinct calling than that of the doctor," Pearl v. West End St. R. Co., 1900, 176 Mass. 177, 179, 57 N.E. 339, 49 L.R.A. 826, we are, nonetheless, persuaded to this conclusion by numerous cases which demonstrate the growing tendency to hold the doctor a servant in special circumstances, as where he is a resident physician on a hospital staff, Collins v. Hertfordshire C.C., (1947) 1 All E.R. 633; Gold v. Essex C.C., (1942) 2 All E.R. 237; Hansch v. Hackett, 190 Wash. 97, 66 P.2d 1129; Giusti v. C. H. Weston Co., 165 Or. 525, 108 P.2d 1010; Brown v. La Société Francaise, 138 Cal. 475, 71 P. 516; Bellandi v. Park Sanitarium Ass'n, 214 Cal. 472, 6 P.2d 508, see also 2 Harper and James, The Law of Torts, 1395-7 (1956), or where he is a corporate employee performing medical services which accrue to the benefit of his employer, Mrachek v. Sunshine Biscuit Company, 1953, 283 App.Div. 105, 126 N.Y.S.2d 383; Mrachek v. Sunshine Biscuit Company, 1954, 308 N.Y. 116, 123 N.E.2d 801; Rannard v. Lockheed Aircraft Corp., 26 Cal.2d 149, 157 P.2d 1; Jones v. Tri-State Tel. & Tel. Co., 118 Minn. 217, 136 N.W. 741, 40 L.R.A.,N.S., 485.

The rule of the older cases rested largely upon the view that a non-professional employer could not be expected to exercise control or supervision over a professionally skilled physician. We appreciate the difficulty inherent in such an employment situation, but we think that the distinction no longer provides a realistic basis for the determination of liability in our modern, highly organized industrial society. Surely, the board of directors of a modern steamship company has as little professional ability to supervise effectively the highly skilled operations involved in the navigation of a modern ocean carrier by its master as it has to supervise a physician's treatment of...