The opinion of the court was delivered by: KALODNER
The libellant commenced this action against the United States under the Suits in Admiralty Act, 46 U.S.C.A. § 742, to recover maintenance and cure and damages for negligence. The liability of the respondent for maintenance and cure has already been determined in the libellant's favor by this Court: 100 F.Supp. 954, affirmed 3 Cir., 1952, 198 F.2d 928. At this time, there remains to be disposed of only the issue of negligence. It is libellant's contention, in brief, that a United States Public Health and Quarantine physician was negligent in failing to render to him, as he puts it, 'prompt, proper and adequate medical care and attention.'
In the course of litigation, I made certain rulings which should be reiterated for the sake of clarity.
In September, 1946, the libellant brought an action against the general agent asserting unseaworthiness and negligence as the cause of the injury here involved. A jury verdict was returned in favor of the general agent. The jury specially found in answer to interrogatories, that (1) there was no failure to provide or keep in proper order a throttle which the libellant claimed was defective and which, in the strain of operation, induced his heart condition; and (2) there was no failure to provide and obtain proper care and attention for the libellant. On appeal, the judgment entered on the jury verdict was affirmed. Gibson v. International Freighting Corp., 3 Cir., 1949, 173 F.2d 591, certiorari denied 338 U.S. 832, 70 S. Ct. 78, 94 L. Ed. 507. In the course of that litigation, the libellant had sought a new trial on the ground that he had newly discovered evidence relating to the throttle incident which had been disputed before the jury. The libellant was not successful on this score.
In February, 1947, the libellant commenced this action. In all material respects, the libel in the instant case is the same as the complaint in the action against the general agent. The respondent moved to dismiss on the authority of Bruszewski v. United States, 3 Cir., 1950, 181 F.2d 419, certiorari denied 340 U.S. 865, 71 S. Ct. 87, 95 L. Ed. 632, which holds that a plea of res judicata will lie against a libellant who predicates his claim against the vessel's owner upon the same acts or omissions asserted in an earlier, unsuccessful, action against the general agent.
The substance of the libellant's position in this regard is that the verdict in favor of the defendant in the prior action constituted a finding that, having secured advice from a usually competent source, a United States Public Health and Quarantine Service physician, the general agent was not responsible if the advice proved incorrect. However, the libellant contends that the action at bar is based upon the neglect of the physician, for which the respondent here is liable. Cf. DeZon v. American President Lines, 1943, 318 U.S. 660, 63 S. Ct. 814, 87 L. Ed. 1065. This neglect, he says, could not have been asserted against the general agent, since it had no control over the physician: therefore, the judgment in the prior action is not a bar here. The libellant would re-try all of the issues of the prior action, as well as the issue of the negligence of the physician.
In addition to controverting this analysis, see Jensen v. U.S. War Shipping Administration, D.C.E.D.Pa. 1949, 88 F.Supp. 542, affirmed on other grounds 3 Cir., 1950, 184 F.2d 72, the respondent contends that the libel herein cannot support a recovery against the United States as a shipowner for the negligence of a federal Public Health and Quarantine Service physician, and that the libel is not broad enough to admit proof of the physician's neglect.
On August 19, 1952, I entered an order denying respondent's motion to dismiss. I concluded that the general allegation of the libel, that the respondent failed 'to provide libellant with proper and adequate medical care and attention' was sufficient to permit proof of the physician's negligence. There was, in my opinion, no surprise which could have harmed, or did harm, the respondent upon this construction of the libel in accordance with the liberal practice that prevails particularly in light of the wide opportunity afforded both sides in the production of evidence. Moreover, I did not believe that the separability of respondent's function as a shipowner from its function as operator of the Public Health and Quarantine Service, at least in the context of this case, was so clear-cut in legal effect as to warrant the barring of the libellant in limine.
However, on September 11, 1952, following pre-trial conference, I entered an order restricting the consideration of the evidence to the issue of the negligence of the physician. The decision of the Bruszewski case was thereby given effect, saving to the libellant the issue which he could not have asserted properly in the prior action against the general agent.
The parties have conveniently stipulated to the use in this case of the evidence adduced at the prior trial, and have taken additional testimony,
all of which I have restricted in consideration of the ruling above related.
1. At the time material hereto, the S.S. Ernest W. Gibson was owned by the respondent, the United States, and operated by International Freighting Corporation, under a standard form of general agency agreement.
2. The libellant, Arthur W. Gibson, was employed aboard the S.S. Ernest W. Gibson as second assistant engineer on a voyage which commenced at ...