De Zon v. American President Lines

• Decision Date: 03 July 1942
• Docket Number: No. 9984.,9984.
• Citation: 129 F.2d 404
• Parties: DE ZON v. AMERICAN PRESIDENT LINES, Limited.
• Court: U.S. Court of Appeals — Ninth Circuit

129 F.2d 404 (1942)

DE ZON v. AMERICAN PRESIDENT LINES, Limited.

No. 9984.

Circuit Court of Appeals, Ninth Circuit.

July 3, 1942.

Andersen & Resner, of San Francisco, Cal., for appellant.

Treadwell & Laughlin, Edward F. Treadwell, and Reginald S. Laughlin, all of San Francisco, Cal. (A. Thatcher Cook and Charles M. Haid, Jr., both of San Francisco, Cal., of counsel), for appellee.

Before GARRECHT and HEALY, Circuit Judges, and FEE, District Judge.

GARRECHT, Circuit Judge.

This action, brought by Joseph DeZon under the Jones Act, 41 Stat. 1007, 46 U.S. C.A. § 688, was heard in the District Court of the United States for the Northern District of California, Southern Division. The grievance complained of is that defendant-appellee, American President Lines, Ltd., "negligently and carelessly failed and refused to provide plaintiff with adequate and sufficient medical care and attention * * * with the result that the infection to plaintiff's right eye grew steadily worse until * * * it was necessary to remove the eye". A verdict directed for defendant was returned by the jury, and from the judgment entered thereon plaintiff has appealed.

The pertinent facts of the case are these:

Plaintiff was a seaman aboard defendant's vessel, S. S. "President Taft", and on or about June 3, 1940, at approximately ten o'clock in the morning, while chipping away old paint and repainting in the boiler room, in pursuance of his duties, plaintiff got a chip of paint in his eye and also some fresh paint from his brush. Immediately he went to his quarters, where he washed out his eye with some eyewash which he had. That evening he stood his watch, although he didn't feel very well. In the morning, because his eye pained him, he consulted the ship's physician and surgeon, Dr. Will Lewis, who was a general practitioner, and explained to him about the chip of paint getting into his eye. Upon examination of the eye the doctor found it red and inflamed, as is usual when there has been irritation by a foreign body; he diagnosed the condition as acute conjunctivitis — a term used to designate an inflammation of the conjunctiva or outer coat of the eye — which ordinarily clears up in two to four days, and gave the proper treatment for such condition. In addition, he recommended that plaintiff be relieved from duty, which was done. About four o'clock that afternoon the ship arrived in Honolulu, on its way from the Orient to San Francisco, California, and after it had docked, plaintiff went to the Marine Hospital there, but upon finding it closed proceeded to the Queen's Hospital in the same city, where he saw a Dr. Yap, whom plaintiff refers to as a "competent physician". That doctor, after making a thorough examination, diagnosed the condition as "acute traumatic conjunctivitis", and treated the eye in the same manner as had Dr. Lewis earlier in the day. Plaintiff then returned to the "President Taft", where he was placed in the ship's hospital by the orderly on duty. At about eleven-thirty o'clock that same evening, when Dr. Lewis came back aboard, approximately a half hour before the ship departed for San Francisco, as per schedule, he visited plaintiff, who claims that he then told Dr. Lewis that Dr. Yap had advised shore hospitalization. Plaintiff testified further that he told Dr. Lewis that he preferred to go to San Francisco; that when he inquired about the advisability of so doing, the doctor answered that there was no danger; and that he then agreed to make the journey. The ship's doctor testified that he had no recollection of any such conversation with DeZon, and expressed doubt as to whether it had taken place. At any rate, a bed in the ship's hospital and surgery was assigned to plaintiff, where he remained during the five-day voyage to San Francisco, upon arrival at which port he was taken to the United States Marine Hospital there. While hospitalized aboard the ship, he was served all his meals in bed, was visited and treated by the ship's doctor several times a day, was given almost constant attention by the ship's male nurse, and was given the treatment deemed appropriate by the ship's doctor, the physician at Honolulu, and an army surgeon with extensive experience in the Orient with eye infections, who was aboard ship and was called into consultation by the ship's doctor. Plaintiff's condition did not improve, but grew worse. Eye specialists at the Marine Hospital in San Francisco conducted extensive examinations, and after five days determined that plaintiff was suffering, not from acute conjunctivitis, but from intraocular hemorrhage. The eye failed to respond to the treatment rendered at said hospital, and on July 5, 1940, the organ was enucleated.

Plaintiff called as a witness Dr. Percival E. Faed, a physician at the United States Marine Hospital in San Francisco, who had attended DeZon most of the time that he was in said hospital and had removed his eye. This witness testified concerning the manner in which plaintiff's eye was treated while at that hospital (which varied from that administered to plaintiff aboard ship), and stated that in his judgment similar treatment should have been given to DeZon when he first reported to Dr. Lewis, because such treatment might "possibly" have helped plaintiff's condition. When asked whether DeZon should have been hospitalized on June 3 or 4, 1940, when the ship was at Hawaii, Dr. Faed said that he would have advised it from what he knew of the case, that "it might have helped some". A witness for defendant, Dr. Jerome Bettman, a specialist in ophthalmology, stated that he believed that the use, at the outset of plaintiff's disorder, of atropine, a drug employed for purposes of dilating the eye so as to put the small muscles inside the eye at rest and to prevent adhesions of the iris and lens, which drug was used by the San Francisco Marine Hospital in caring for DeZon and which is not ordinarily carried by the general practitioner, would have aided. He testified further that under the facts and circumstances it was "too much to expect of the average general man to be certain that this case is or is not serious, or to be certain of the diagnosis within a relatively short time", but that because there was no special eye equipment on the ship and all facilities were available at the Honolulu hospital, he "as a specialist, would have referred him DeZon to the hospital".

Plaintiff's case is based, in particular, upon a consideration of the matter set out in the paragraph next above. He phrases his contention in these words: "The failure to leave DeZon in Honolulu under these facts constitutes a clear case of negligent failure to provide proper medical care, however the case may be viewed."

Preliminarily to instructing the jury on defendant's motion for a directed verdict, the court, in discussing the matter with counsel, remarked: "Now, from what was placed before me in regard to the treatment of the man I don't see any criticism on it. The only adverse testimony that appears on that that I recall is that of this doctor Dr. Faed that was in the Government Service, here, and that doctor, of course, did testify to this effect: He said he didn't know whether it would benefit him or not benefit him, but the very fact that he didn't know — in other words, that the balance was so equal he thought he would give the advantage to the man and not let him go with the ship. But that much testimony would not establish the fact that the doctor, in his administration of his functions as a doctor, was acting negligently."

And afterwards, when addressing the jury, he remarked that "A mistake of a doctor, even, in the pursuit of his profession, is not necessarily negligence". Then, after summing up the evidence, he concluded: "Now, can you read in that that a doctor employed by the company by having a view one way or the other was negligent unless he didn't follow the view he thought was necessary? There are other features in the case, but I could not find negligence, something that you can condemn as should not have been done by a man of the profession, so as to bring the responsibility of that negligence home to the company, and therefore I am going to instruct you at this time that you retire to the jury room and return a verdict in this case in favor of the defendant. * * *"

Here on appeal plaintiff argues that "The verdict is contrary to the evidence in that taking the case in the most favorable light to appellant, as must be done since the verdict was directed against him, there was sufficient evidence upon which the jury could have found for appellant".

Very recently, in the case of Deere v. Southern Pac. Co., 9 Cir., 123 F.2d 438, this court had occasion to discuss the propriety of a federal trial court's action in granting a motion for a directed verdict. The following excerpt is taken from that opinion at page 440 of 123 F.2d:

"`The test as to whether a directed verdict should be granted, is not whether the evidence brings conviction in the mind of the trial judge; it is whether or not the evidence to support a directed verdict as requested, was so conclusive that the trial court in the exercise of a sound judicial discretion should not sustain a verdict for the opposing party.' O'Brien, Manual of Federal Appellate Procedure, 3d Ed., p. 15. Respecting the power of the trial court to grant or deny a motion for directed verdict the Supreme Court of the United States stated in Gunning v. Cooley, 281 U. S. 90, 91, 50 S.Ct. 231, 233, 74 L.Ed. 720, as follows:

"`"When on the trial of the issues of fact in an action at law before a Federal court and a jury, the evidence, with all the inferences that justifiably could be drawn from it, does not constitute a sufficient basis for a verdict for the plaintiff or the defendant, as the case may be, so that such a verdict, if returned, would have to be set aside, the court may and should direct a verdict for the other party." Slocum v....