Before MARIS, GOODRICH, and HASTIE, Circuit Judges.
The widow of Clinton Holliday, as his administratrix, instituted this libel, pursuant to the Jones Act, 46 U.S.C.A. § 688, charging Pacific Atlantic Steamship Company with legal responsibility for the death of Holliday, a seaman, who was fatally stricken while serving as chief cook during a foreign voyage of respondent's steamship, "Peter Kerr". After full hearing the district court found that the evidence failed to establish any breach of duty owed Holliday by the respondent. Accordingly, judgment was for respondent and libellant has appealed.
It is not disputed that Holliday died of blood poisoning which developed on shipboard and terminated fatally in a hospital in Capetown, South Africa, ten days after the seaman had been removed from respondent's ship directly to the hospital. Libellant attempted to show that negligence of respondent or the unseaworthiness of its vessel caused Holliday, during the course of his shipboard duties, to suffer a traumatic leg injury which, in turn, resulted in fatal septicemia. The district court concluded that libellant's proof fell short of establishing such fault on the part of respondent.We share the district court's view that the evidence on this phase of the case was weak and unconvincing. The finding against the party who bore the burden of proof was proper and we now sustain it.
But, also in issue is the question whether respondent failed in its duty to provide reasonable medical care for Holliday after he became ill, from whatever cause, and for that reason must respond in damages for his death. A review of the relevant evidence is necessary.
The "Peter Kerr" arrived at Port Elizabeth, South Africa on February 2. The ship remained in port until the afternoon of February 5, when it sailed for Capetown. It arrived and anchored in the roadstead off Capetown shortly after 7 p.m. on February 7. It docked early the following morning, February 8. A doctor came on board shortly after noon and promptly had Holliday removed to the Capetown hospital where he died February 18.
It is not disputed that Holliday complained of an injured leg or ankle about the time the ship reached Port Elizabeth. Testimony for the respondent as to the course of events thereafter comes from the master of the vessel and the second mate, who served as medical officer, there being no physician on board.
The second mate's testimony was to the effect that at no time did Holliday's injury or complaint seem very serious. The mate related a voyage long history of sores and abrasions on Holliday's legs which did not heal normally. He hazarded the view that Holliday probably had "bad blood"; though, reminded that Holliday wasemployed and retained as ship's cook, he construed this opinion as relating to diabetes. As for the particular complaint made while the ship was in Port Elizabeth, the mate viewed it as the old trouble, aggravated perhaps by bad whiskey and constipation, or even a sprain. The mate says he had a doctor from Port Elizabeth aboard on February 5 to look at several men, including Holliday although the mate was not present at the time of this medical visit. All he knows is that the doctor prescribed some pills.
The following day, February 6, while the ship was at sea the mate observed that Holliday's leg had begun to swell. In his medical log he entered: "swelling was supposed to be caused by sprained ankle and was treated accordingly". He also called the master to look at the patient. The master remembers no swelling but remembers recommending routine applications of "soap liniment". He says Holliday worked that day. The mate does not remember any further observation until the morning of February 8. The master's account of the events of that morning is as follows:
"Q. And immediately upon arriving at Capetown you called a shore doctor? A. The Second Officer said that Holliday had then gone to bed and his legs were swollen somewhat, so then I did go down myself and saw - I saw his legs in the morning there and I did call the doctor for him and several other crew members."
In all this evidence, master and mate were at great pains to make it clear they had no indication of critical or even dangerous illness. Even the calling of a doctor at Capetown is made to appear the precaution of a careful ship, rather than a measure of emergency.
But there is other testimony. Joseph Cooper, a member of the crew and, according to established labor relations procedure, liason between the steward's department and the ship's officers, says that as early as the evening the ship left Port Elizabeth Holliday was bedridden and delirious, and his ankle showed "a big pus on the side and black like water in it." Cooper says he had reported Holliday's condition to the mate from time to time, during these early days of February and that on the day of departure from Port Elizabeth the captain said he would summon a doctor when they reached Capetown. He denies the history of chronic leg sores.
Such conflicting accounts remind us that the testimony of the ship's officers at one extreme and the crew's delegate at the other, may minimize or exaggerate occurrences out of solicitude for the interest served. We must search further for objective and unbiased testimony. Before doing so, however, we note one glaring contradiction in the ship's story. It has already been observed that the testimony of captain and mate creates the impression that Holliday's condition did not appear too serious even on February 8. Yet the mate's medical record for that day, which also is in evidence, shows this entry:
"C. Holliday, Cook; pain in left leg; soap liniment; leg was swollen to twice its normal size; ...