Opinion
For Opinion on Hearing, see 105 Cal.Rptr. 358, 503 P.2d 1366.
Opinions on pages 422 to 485 omitted.
HEARINGS GRANTED
[100 Cal.Rptr. 891]Haight, Lyon & Smith, Michael J. Bonesteel and Henry F. Walker, Los Angeles, for defendants, appellants and respondents.
Young & Young, by W. Herbert Young, Los Angeles, for plaintiff, respondent and appellant.
ROTH, Presiding Justice.
Respondent Robert Coffee, 45, a pilot who had retired from the air force in January of 1966, underwent a preemployment physical examination on July 26, 1966, as an applicant for the position of pilot for McDonnell-Douglas (appellant). On August 9, 1966, he was employed and performed as a pilot for appellant until March 9, 1967, when after a long flight he suffered a near collapse. Shortly thereafter he was hospitalized at Long Beach Naval Hospital and after 10 days during which numerous and diverse tests were taken, the cause of the physical distress suffered on the March 9th flight was diagnosed as multiple myeloma (cancer of the bone marrow), a terminal disease.
Respondent served 24 years as a pilot in the Air Force, and retired from the service in January of 1966. When he applied to McDonnell-Douglas for employment as a pilot he was first interviewed by Mr. Heimerdinger, who was not a doctor but who was chief pilot for McDonnell-Douglas. Mr. Heimerdinger checked the data submitted by respondent on his resume--his past experience and his military and flying experience. Respondent was told he had the qualifications for the job but that a medical examination would have to be performed before he could be hired, i. e., a preemployment physical.
Respondent's complaint alleged in pertinent part that appellant and three of its [100 Cal.Rptr. 892] employee-doctors, who were also named as defendants, had performed and evaluated a preemployment physical upon respondent so negligently as to fail to discover the myeloma. This theory was fortified by a pretrial statement which characterized the action as one in 'malpractice.'
The allegations of the complaint were appropriately specific in charging that appellant 'by and through its agents, servants and employees' caused the examination to be made; that 'defendants' then represented to respondent that he was physically qualified and that 'defendants' knew or should have known of respondent's true condition and negligently failed to disclose the same or 'so carelessly and negligently performed the said physical examination and diagnosis of plaintiff's condition that they failed to discover his true condition, which should have been discovered by the examination of the plaintiff so made by the defendants, had they used that degree of skill and care ordinarily used by physicians engaged in the healing arts * * *.' Although respondent insists that malpractice or negligence of the doctors is in no way related to appellant's negligence a fair reading of the complaint, wholly aside the declaration of theory in the pretrial statement, can lead only to the conclusion that the allegedly negligent course of conduct was attributable to the agents of the corporation who performed and evaluated the medical examination.
The jury returned a verdict of $200,000 in favor of respondent and against McDonnell-Douglas, but exonerated the three individual doctor-defendants. McDonnell-Douglas therefore is the sole appellant. Appellant moved for a new trial. The motion was denied after Coffee consented to a reduction of the award to $100,000. Judgment was entered upon the verdict (as later reduced to $100,000) and McDonnell-Douglas appeals therefrom.
The motion for new trial was initially granted on the issue of damages only on the ground that they were excessive '* * * for the reason that although plaintiff's condition temporarily worsened as a result of defendants' negligence * * * plaintiff's life expectancy was not affected.' (Emphasis added.) The order granting the motion was conditioned upon Coffee's consent to a reduction of the verdict to $100,000; that consent was given; and the motion for a new trial was then denied. (Code Civ.Proc., § 662.5(b).)
Coffee's cross-appeal, taken 'out of caution to preserve any of plaintiff's rights that might otherwise be lost,' is discussed, infra.
The verdict is fundamentally inconsistent and is invalid and compels a reversal of the judgment.
It is settled that when an employer's responsibility is predicated upon the concept of respondeat superior, judgment against the employer cannot stand when a determination has been made in favor of its employees for whose negligence the employer has been charged. (Freeman v. Churchill, 30 Cal.2d 453, 461, 183 P.2d 4; Cox v. Certified Grocers of Cal. Ltd., 224 Cal.App.2d 26, 31, 36 Cal.Rptr. 48, hearing denied; Adams Mfg. & Engineering Co. v. Coast Centerless Grinding Co., 184 Cal.App.2d 649, 655-657, 7 Cal.Rptr. 761, hearing denied.)
Respondent states that he took a cross-appeal 'out of caution to preserve any of plaintiff's rights that might otherwise be lost' (fn. 3, supra). This appeal is purportedly taken from the judgment 'and the whole thereof' and the order granting a new trial. The judgment at bench was in favor of respondent, he is not aggrieved thereby and he therefore cannot appeal therefrom. (Ruben v. City of Los Angeles, 51 Cal.2d 857, 864, 337 P.2d 825, generally, see 6 Witkin, California Procedure (2d ed. 1971), p. 4118.) Moreover, he advanced no arguments and offers no briefing of his purported cross-appeal and his 'appeal' must therefore be and it is disregarded. (Boral v. Caldwell, 223 Cal.App.2d 157, 163, 35 Cal.Rptr. 689.)
Although it is clear from the pleadings and evidence that respondent charged [100 Cal.Rptr. 893] the doctors with negligence, respondent defends the appeal on the theory successfully asserted in opposition to the motion for new trial that appellant's negligence prior to actual employment was independent of the defendant's doctors, and that appellant's negligence in omitting to show a blood test to its doctors proximately caused the physical distress suffered by him after his final flight for appellant.
Respondent predicates his case upon the principle stated in 32 Cal.Jur.2d at page 506:
'An employer is under no general duty to ascertain whether the employee is physically fit for the job, but where he assumes such duty, he is liable if he performs it negligently.' (Citing McGuigan v. Southern Pacific Co., 129 Cal.App.2d 482, 497, 277 P.2d 444, hearing denied by a divided court, three justices being of the opinion that it should be granted.) This principle flows from the general tenet articulated by Prosser that where '* * * performance clearly has begun, there is no doubt that there is a duty of care * * *' (Prosser, The Law of Torts [3d ed. 1964], page 314.)
Jines v. General Electric, 9 Cir., 303 F.2d 76, cited in oral argument albeit not in the trial court, is on all fours with the facts at bench and discusses the principle upon which respondent relies. We therefore quote pertinent portions from Jines omitting citations and footnotes.
'The first element was the obligation by GE to disclose to Jines any diseased condition which it discovered, and upon the discovery of any such disease to refrain from assigning him to work which would aggravate such a condition. * * * But it is not suggested that the evidence discloses that GE had actual, subjective knowledge of a diseased condition when it assigned Jines to work, or of possessing knowledge it failed to disclose to him. Then the critical question arises as to whether, under the circumstances of this case, and in the exercise of reasonable care, GE should have known of the tubercular condition prior to September of 1958. The evidence in this record falls short of establishing the necessary elements of lack of reasonable care.
'In the usual negligence case the standard of care against which the jury measures the conduct of the defendant is that of the ordinary, reasonable, prudent man. The jury, from its own lay 'expertise,' at once establishes the standard and judges its breach. But there are exceptions to this rule of which the instant case is one. * * * Thus, in this area the jury, unaided by proper expert testimony, will not be permitted to make a finding of negligence. * * * Thus, it is incumbent upon the plaintiff in this class of cases to establish the standard of care, not of the ordinary prudent man, but of the prudent, skilled, trained physician. [Citations.] Because of the wide area which must be allowed for differences of 'judgment' in a learned profession, testimony of other physicians that they would have done something different, standing alone, is insufficient to sustain a verdict for the plaintiff. Richison v. Nunn, 57 Wash.2d 1, 2, 16, 340 P.2d 793, 801 (1959). Rather, the local community standard of practice must be shown, and this applies fully to cases of alleged faulty diagnosis. * * *.' (Emphasis in original.)
Although conceding the competence of the doctors, and raising no question as to the exoneration of the doctors, respondent nevertheless aggressively argues that the blood test taken by appellant showed a rate of sedimentation that would have indicated to competent doctors the possible or probable presence of myeloma, that the blood test which was taken was not shown to the doctors and that appellant's negligence was therefore independent of the doctors'.
We have been cited to no case in any jurisdiction which holds that a prospective employer who requires a physical as a condition to employment owes an obligation to the applicant employee to discover a latent disease or illness and/or any case which establishes a standard of care which must [100 Cal.Rptr. 894] be met by an employer which remotely implies such an obligation.
The court in Lotspeich v. Chance Vought Aircraft, Tex.Civ.App., 369 S.W.2d 705, 710, in addressing a factual situation analogous to the one at bench, distinguished between the employer's (at bench, appellant's) obligation to disclose a known condition, as revealed by a company-required medical examination of an employee and the obligation here insisted upon that an employer must discover or use care to discover any and all physical defects irrespective of what tests will disclose to the employer the physical and/or health deficiencies he may be looking for.
However, even assuming such a duty, and we do not hold that there is a broad duty to discover any and all latent physical ills of a prospective employee, the question is whether appellant was under a duty to discover by means of the blood tests respondent's condition. The numberless purposes for which preemployment physicals are given pose genuine questions on the degree of care which should be legally required. Obviously, an employer of restaurant help takes tests to discover whether an applicant for employment has a contagious disease. Different employers look for differing indicative evidence depending upon the type of work to be done by the prospective employee. At bench, respondent had been qualified in all respects as a flyer by military and civilian authorities, passed the physical tests and examinations required by the three doctors employed by appellant and yet the myeloma which caused the physical distress on the March flight was discovered only after ten days of examination and tests in a hospital.
Moreover, there is no evidence in the record that in addition to the complete physical examination made by the appellant's doctors a blood test was necessary or that the doctors ordered one or inquired whether any had been ordered. On the contrary, it appears that there are any number of blood tests which doctors insist upon, depending upon the nature of the employment sought.
Thus, Dr. Waters testified in pertinent part:
[100 Cal.Rptr. 895]As pointed out, respondent concentrates his fire on appellant's assertedly lax procedures in evaluating and reading the laboratory reports of respondent's blood tests which, if read, he asserts would have occasioned further investigation by appellant's medical staff. Respondent also invites our attention to x-rays of respondent taken by appellant at the time of respondent's application for employment and received in evidence, which showed according to the testimony of respondent's expert, the presence of myeloma to a competent doctor.
Dr. Watson, the medical supervisor of the McDonnell-Douglas Aircraft Division, testified that had he seen the blood test results which showed a high sedimentation rate, he might have approved respondent's employment but he would 'have done more study first.' High sedimentation appears to be symptomatic, however, of a great many disorders ranging from the trivial to gravely serious.
A report dated 7/23/1970 from an expert Roentgenitologist introduced in evidence, states in pertinent part: 'The findings are consistent with the known multiple myeloma with some evidence of this process being present on the examination of 7-26-66, particularly in the skull. The subsequent changes in the lumbar spine and the body of T-11 as well as the crest of each ilium are also consistent with the same process. These changes appear to have occurred in the interval between 7-26-66 and 1-25-68.'
Respondent's own admission shows that appellant, apparently as part of a routine, ordered blood tests which were available to the doctors. Thus, appellant's procedure left nothing to be desired. No one testified that the doctors did not know blood tests had been taken. The evidence in fact indicates the contrary. The doctors did not examine the blood tests for reasons set forth in footnote 5. However, as already pointed out, if the doctors, as reasonably skillful practitioners, should have been alerted by the x-ray they did examine, they could have or should have ordered such tests without any suggestion by appellant. Accepting the argument of respondent as sound, the record shows that appellant was more thorough than the doctors. Thus, if there was negligence, if any defendant should have been exonerated on a basis of logic, it was appellant.
Finally, we address ourselves to the verdict.
The $200,000 verdict awarded can only be explained on the theory that the jury was under the impression that the myeloma from which respondent suffered was actually caused by appellant's blind acceptance of respondent's plea for employment as a pilot.
All the medical evidence aside from the inherent nature of the disease and respondent's admission that it was 'service induced' is to the contrary.
Actually there is no specific evidence that the myeloma from which respondent was suffering was even exacerbated by the work respondent was doing for appellant. If it was, respondent has a claim for workmen's compensation (pleaded as an affirmative defense by appellant and ignored) under well settled rules.
In short, respondent was awarded $200,000 for disability, pain and suffering for the ten period he was hospitalized. The trial judge stated as a fact that respondent's inherent myeloma was 'temporarily worsened' (fn. 2) by the March flight which led to his hospitalization. The accuracy of the court's appraisal is fortified by exhibits introduced by respondent which show that shortly after respondent's ten days' stay at the hospital in Long Beach, he was again certified and qualified as a pilot and apparently has been reemployed as such.
If the jury understood the narrow ground upon which respondent, accepting all his theories, may claim damages, to wit: the physical discomfort and mental suffering resulting (if it did) from the March flight, then the verdict is as reckless an appropriation of other people's money as has ever come to our attention.
In our opinion, the verdict and the whole thereof is unsupported by any substantial [100 Cal.Rptr. 896] evidence on any theory advanced by respondent and should have been set aside.
The judgment is reversed and vacated and the trial court is directed to enter judgment for appellant, McDonnell-Douglas. Costs to be borne by plaintiff and respondent, Coffee.
HERNDON and COMPTON, JJ., concur.
The record showed, too, that respondent had been given a complete physical examination in late September or early October of 1965 at Travis Air Force Base, a few months before his actual retirement from the service. No Army or Air Force doctor indicated that he had any serious illness and according to respondent's knowledge he was in good health. At the time of his preemployment physical, respondent had a pilot's license which had been issued to him by the Federal Aviation Authority and to have secured such a license he already had taken and passed a pilot's examination. At the time of trial respondent had a claim pending with the Veterans Administration that the multiple myeloma discussed herein, was a service-connected condition.
'Perhaps I should explain some of the reasons we do some of these tests, not only blood tests but x-rays. For instance, every applicant has a chest x-ray; some of them have blood tests, some of them have other specific types of tests. Cafeteria people get another special kind of test. The doctors don't ordinarily order these tests. The nurses in pre-employment know that a person doing a certain kind of job will require certain tests. They will probably put the name of the doctor who is working in that area at that time on the test, and these tests are not ordered because someone is ill or because they come in saying, 'I hurt' or 'what is wrong with me?' The tests are ordered many times as a defensive thing. We must know in particular, more true perhaps of x-rays, what degree of disability does this person have now? We are hiring this man to be a painter. Does he have emphasema now, or is he going to have it a year from now? Would it be safe for us to let him work where there is a lot of dust, things of this sort. Someone comes in and says, 'I have been shot up in the war. I have an elbow that will move only a little ways.' We say, 'yes, we have a job for you.' We know he has a bad elbow. We know it is probably later going to get worse, it might require surgery, more surgery. We want to know what the status is. The doctor will order an x-ray quite often, or usually does. He is not trying to determine what should be done about this elbow at the time. He is trying to see what the status is today. What is it going to be a year from now? In the case of a blood test, he might now [sic] even see the reports of the test. A doctor who hasn't done these before might not even now [sic-know] that a test was required for a particular thing, for a particular type of occupation. So these tests are a little bit different than the tests where someone is in a hospital and they are sick and you get a blood count to see if they've got a high blood count or a low blood count, to see if they have pneumonia or not, or leukemia, or something of this sort. We want to know, if someone is going to work around toxic substances, was their blood normal when they came to work for us or wasn't it. And if something happens a year from now, we can go back and say, 'well, this condition existed at the time you came to work for us.'' (Emphasis added.)