
    BERTHA LAUBHEIM, Appellant, v. DIE KONINGLYK NEDERLANDSCH STOOMBOOT MAATSCHAPPY, Respondent.
    
      Decided March 5, 1885.
    
      Ship-owners■—liability of owners to passenger for ineompeteney or negligence of surgeon.
    
    An action by a passenger against the ship-owner, to recover damages, for the unskillful and negligent treatment by the ship’s surgeon, will not lie, unless perhaps upon an allegation (sustained by the proof) of intentional mistatement or misrepresentation as to his skillfulness and competency.
    Before Sedgwick, Ch. J., Tritax and Ingraham, JJ.
    Appeal by plaintiff from judgment dismissing plaintiff’s complaint, entered upon a direction of the judge at trial term.
    
      The plaintiff was a steerage passenger on one of the steamships belonging to defendant, plying between Rotterdam and New York. When at sea, she fell on the deck of the vessel and fractured the knee-cap of one knee ; she was taken in charge by the ships-surgeon, and, as was claimed, was treated so unskillfully and negligently that after she landed it became necessary to amputate the leg. Evidence was given to establish the facts. It was proved that the ships-surgeon had been on the defendant’s steamboats for several years, and for his services received a salary from the defendant annually, and a certain sum for each passenger carried.
    The court dismissed the complaint.
    
      Stern & Myers, attorneys, and of counsel for appellant,
    argued :—I. The common carrier by means of ocean-going steamers is bound to protect the lives and persons of those in his charge by all reasonable means. Common knowledge and experience dictate the imperative necessity of the presence of a competent surgeon to relieve against the accidents which are liable to occur upon the high seas during a voyage of over two weeks, during which time the passenger is far from land and absolutely unable to obtain succor except such as is provided by the vessel. It is not necessary to take the opinion of the jury upon this question any more than it would be to take the jury’s opinion as to whether or not it would be requisite to have an engineer or pilot. The court, from its own experience and knowledge of human affairs, ought to direct that it is obviously requisite, as a matter of law, to have such an expert as one of the ship’s staff.
    II. The least, however, that can be said is that it is a question for the jury to determine whether or not a company would be culpable if it sent a vessel to sea without having a surgeon on board as a part of the vessel’s staff. This the jury would determine in view of the nature of the hazards and of all the circumstances in the case.
    III. If it were, as matter of law, the bounden duty of the defendant to have a physician on board as a necessary part of the ship’s staff, or if the jury would have been justified in finding the company negligent for not providing such a physician, then the court erred in taking the case from the jury. In either of these cases, any negligence of the physician would have been negligence of a servant whom the company was bound to have in its employ ; and the rule- of respondeat superior would apply in its full force.
    IV. In any event, inasmuch as the company, in this case, in conformity with a universal custom, did have a physician on board, in its service and in its pay, bound in “duty to visit all over the vessel twice a day, and to take care of the sick and injured,” that being the reason “why he was employed and paid by the defendant,” his acts of necessity became the acts of the company, and the latter became responsible for his neglect as for the negligence of any other servant in its employ and pay. No good reason can be suggested why, in this last view, the rule of respondeat superior does not apply.
    V. The capacity in which the physician on board acted in this case was a question of fact for the jury. It was for the jury to say whether he was in the company’s employ and pay, the same as any other servant it had in its employ, and that he was held out as such, and in the present instance acted as such, or that he was merely on board the vessel, not as a servant of the company, but open to engagements by passengers as their servant, if they saw fit to engage him. The court had no right arbitrarily to determine the question.
    
      Philip J. Joachimsen, attorney, and of counsel for respondent,
    among other things, argued :—I. The defendants, as carriers of passengers, owed no duty to the plaintiff or any other passenger, to provide and furnish any physician or surgeon to attend to and care for them in the event of sickness and accident, as claimed by plaintiff.
    II. Even if Dr. Goldberg is himself hable to the plaintiff, the defendants are under no hability, A carrier of passengers having assumed to furnish a surgeon for passengers injured, its duty is discharged when it provides a surgeon possessing only ordinary skill, and for any damage caused by the negligence of such surgeon, the surgeon and not the carrier would be responsible (Secord v. St. Paul, &c. Ry. Co., 18 Fed. Rep. 221). A fortiori the defendant here, to whom the injury to the plaintiff requiring a surgeon can in no wise lie imputed, cannot be liable for the malpractice of a surgeon in the particular case, there being no proof that Dr. Goldberg as a general physician did not possess ordinary skill.
   Per Curiam.

The defendant’s liability to answer to the plaintiff must rest upon some violation of duty that was created by the relation of carrier and passenger, or upon a breach of some implied agreement in the contract that established that relation. The complaint avers that the defendants agreed “to furnish and provide her, the plaintiff, with all means and appliances for her safety and comfort throughout said passage . . including among other means, a good, competent and skillful physician and surgeon, to properly attend to and care for her in the event of sickness or accident,” and the case necessarily is confined to an obligation to furnish surgical and not medical aid. There is, in respect of seamen, an obligation in the law merchant to furnish certain kinds of medical aid, but not surgical aid. The law has not, as matter of fact, made the contract between a carrier and passenger to imply that the passenger shall be furnished with surgical help for the result of an accident; that is, there is no such implication in the contract itself. If there were, it would exist, if only one or only a few were to be taken in the steamer. The creation of the implication must then depend upon the character of the circumstances which will surround the passenger during his voyage. In the present case the duty is said to exist in view of the great number of passengers that the ship carried and was meant to carry. This fact gave rise to a probability that a certain proportion of the individuals composing the great number would be sick or meet with accidents. The probability does not designate which of the individuals will suffer. When the plaintiff bought her ticket, and went on board, the risk of accident to herself was not increased by the fact that one thousand more made the. voyage. She and the owners contracted concerning herself individually and not concerning the oth ers. ■ The obhgation to regard the probability that some undesignated individuals, out of a large number, would need surgical aid, is of a moral nature which does not become of legal force, until the law-makers make a positive command concerning it.

The complaint also places the claim upon averments that the defendants by employing a ship-surgeon and having him there to attend upon passengers needing his help, represented that the surgeon was “fully competent to render proper services in such case, and that said person was not a skillful or competent surgeon or physician as defendants then and there well knew.” If an action of this Idnd might he under some circumstances, it would not he in this case without an allegation of intentional misstatement or misrepresentation sustained by proof. 1ST 0 proof of the kind was given.

There was also a suggestion that the surgeon was the servant of the defendants, and they were liable for his negligence. This is inadmissible, because, for the reasons that have been given, the surgeon’s act did not cover the performance of any obhgation of the defendant to the plaintiff. If there had been no surgeon at ah, the plaintiff would have suffered to an extreme degree, and with a risk to her life or health, that the testimony does not describe. The defendant, not in the performance of an obhgation, but voluntarily places the surgeon on board, and the plaintiff voluntarily calls upon him for his services of the kind they were in fact.

The direction of the learned judge below was correct, for the reasons given by him.

Judgment affirmed, with costs.  