1. This is an appeal from the decision and decree passed by the learned Subordinate Judge, 24-Parganas, dated 31st July 1934, by defendant 1 in a suit brought by the plaintiff as a pauper, for damages or compensation for breach of contract, and also for tort or negligence, valued at Rs. 20,500. The plaintiff also preferred cross-objection against the said decision and decree which allowed him Rs. 1,500 only, by way of compensation. The plaintiff, a man aged 26 years, was employed as a deck crew to serve on board the S.S. 'Markhar' owned by defendant 1, T. and J. Brocklebank Ltd. on terms and conditions mentioned in an agreement entered between the plaintiff and defendant 1, on 16th August 1933, under the provisions of the Indian Merchant Shipping Act. It was provided by the agreement that the plaintiff shall not serve as a crew on board the ship between 1st October in one year and 31st March in the succeeding year, on voyages to any parts on the coast of America north of 38 degrees north latitude. The case of the plaintiff stated in his plaint was that the Master of the ship, in violation of the terms of the agreement aforesaid, compelled him to render service of a deck crew against his will on voyages to parts on the east coast of America north of the 38 degrees north latitude, within the prohibited period with the result that he fell ill. The serious illness of the plaintiff resulted from and was caused by the forced service referred to above. The plaintiff asserted that instead of sending him to hospital for medical treatment for which he prayed, the Master of the ship, defendant 3, kept him on board the ship at the risk of life, health and other earthly interest and welfare, against all human consideration till the S.S. ' Markhar' reached Avonmouth, at which place the plaintiff was examined by a doctor, and according to the diagnosis of the doctor, the plaintiff was suffering from an advanced stage of pthisis. The plaintiff was thereupon sent to Hamgreen Sanitorium and Hospital on 3rd November 1933, from which he was discharged on 28th December 1933. The plaintiff stated that inasmuch as the aforesaid state of health culminating in a complete breakdown in health, body and mind, and bringing him to the verge of death was caused while he was in the employment of the defendants and was engaged in their service, by the illegal, improper and partly wilful and partly negligent acts done by defendant 3, the Master of the vessel S.S. 'Markhar', who was a servant of defendant 1, in violation of the terms and conditions of the agreement of 16th August 1933, and against all human consideration, culminating in severe breach of duty, defendant 1 was liable therefore; and the plaintiff was entitled to get from defendant 1 compensation for the loss or damages caused to the plaintiff in health, body and mind and money spent and also for worries both mental and physical. The amount of compensation was assessed at Rs. 20,500 made up of Rs. 19,000, the loss of earning as a seaman up to the age of 65,. with the prospects of the service; Rs. 500 in the shape of medical and other incidental expenses; and Rs. 1,000 on account of worries.
2. In answer to interrogatories supplied by defendant 1, the plaintiff stated that he was attacked with severe cold about the middle of October 1933. Since then he all along prayed and pressed for being medically treated at all the ports which were touched by the S.S. 'Markhar' in course of her return voyages from New York, until the ship reached Avonmouth, in the beginning of November 1933. Defendant 1, the only appellant in this appeal, resisted the plaintiff's claim in the suit, on denial of the main allegations of fact contained in the plaint. It was asserted by the defendant in the written statement filed in Court, that as the plaintiff was employed from 20th August 1933, for a period not exceeding twelve months, there was no violation of any condition of the agreement of service; that the plaintiff ceased to render service on or about 18th September 1933, when the ship was in the vicinity of Gibraltar, owing to a cold which he had contracted, and continued to be off duty so long as he was on board the ship. The plaintiff was examined by doctors at ports of call; but at no time was the plaintiff's case considered to be hospital case, and he could not therefore be sent to a hospital at any port of call, before the ship reached Avonmouth. When the ship reached Avonmouth on 3rd November 1933, the plaintiff was examined by a doctor who certified that he was suffering from advanced pthiais and was removed to the Hamgreen Hospital. It was asserted by defendant 1 that the Master of the ship took as much care of the plain. tiff as was possible under the circumstances, and the Master was not guilty of any breach of duty. There could not therefore be any claim for damages against any of the defendants in the suit. On the pleadings of the parties, three specific issues that were raised for determination in the case are set out below:
Issue 3. - Did defendant 3 in violation of the terms of the agreement dated 16th August 1933, compel the plaintiff to render active service as a deck laskar on board Section 8, 'Markhar,' in its voyage to ports of the east coast of America, north of 33 degrees north latitude, after 30th September 1933? Issue 4, Did defendant 3 commit any breach of duty to the plaintiff, which accused the latter loss or damage? Issue 5. Are the defendants or any one or more of them liable to pay damages or compensation to the plaintiff either for breach of contract or for tort or negligence or for both? If so, for what amount?.
3. The Judge in the trial Court came to the decision on evidence that defendant 2 Grahams Trading Company (India) Ltd. Agents of T. & J. Brocklebank Ltd. (defendant 1) and defendant 3 (the Master of the ship S.S. 'Markhar') were not guilty of negligence. The plaintiff was put off his duty, and never was on duty again, so long as he was on board the ship. Defendant 3 did not compel the plaintiff to render active service as a deck laskar on board the S.S. 'Markhar' on its voyage to ports on the east cost of America, north of 38 degrees north latitude, after 30th September 1933. The trial Judge also came to the conclusion that defendant 3 did not commit any breach of duty to the plaintiff which caused the latter loss. The Judge in the Court below was however of opinion that the medical examination of the plaintiff was defective; the doctors at ports of call before the ship reached Avonmouth ought to have detected at least the onset of pthisis. The conclusion was that the plaintiff was not carefully examined or the doctor kept silent over the fell disease. According to the Judge, a master was negligent for his doctor servants. The plaintiff was in that view of the case entitled to get some damages. The claim as made in the plaint was considered to be adventitious, based on uncertainty, and was absurd. The claim was allowed to the extent of Rs. 1,500, as medical and other incidental expenses impending death of the plaintiff which was, according to the trial Court, not far off, and for mental pain, worries and anxieties.
4. The decree, as passed by the Court below, could not be supported by the plaintiff-respondent; and we do not propose to deal with the contentions proposed to be raised in support of the appeal in any detail. The decree as it stands was passed on a new case, viz, the negligence of doctors, who examined the plaintiff at different ports. The negligence of doctors as found by the lower Court was never pleaded or put in issue, and no relief could be given to the plaintiff on that basis. There was furthermore no evidence on which the failure or negligence of doctors could be arrived at. Defendant 1 must be presumed, in the absence of proof to the contrary, to have appointed persons of competent care and skill as doctors, and they were not liable for injury, if any, caused to the plaintiff by the negligence of any of the doctors : see Fanton v. Danville (1932) 2 K B 309. The appeal by defendant 1 must be allowed for the reason that the decree passed by the Court below cannot be supported in the absence of allegation, proof, or finding, that defendant 1 company was in any way negligent in employing doctors at different ports of call in America. The cross objections preferred by the plaintiff open out the entire case stated in the pleadings of the parties to the suit, and the issues raised at the trial, to which reference has been made already.
5. The facts which stand out prominently in the case are these: The ship S.S. 'Markhar' was a cargo vessel in which both European and Indian (mentioned as native) crew were employed. The number of crew on board the ship was ninetythree; and as the number did not; exceed one hundred it was not necessary for the owners to employ on the vessel any qualified doctor; the steward was to look after the ailments of the seamen on board the vessel. The plaintiff was employed under a contract as a laskar, or deck crew; the agreement between parties provided, among other things, that the Indian deck crew will be off their duty on the ship reaching 38 degrees north latitude on the east of North America. The ship started on the outward journey from Calcutta on 21st August 1933, with the plaintiff employed as a deck crew, who had previously been given a certificate of health by medical authorities concerned in the selection of crew. The vessel S.S. 'Mar. khar' called at the ports of call mentioned below, on the dates given: Colombo, 28th August 1933; Port Sudan, 8th September 1933; Suez, 10th September 1933; Port Said, 11th September 1933; Boston, 28th September 1933; New York, 2nd October 1933; Philadelphia, 5th October 1933; Baltimore, 7th October 1933; Norfolk, 10th October 1933; New Port News, 11th October 1933; New York, 14th October 1933; Boston, 16th October 1933; London, 29th October 1933; Southampton, 30th October 1933; Avonmouth, 3rd November 1933. It is not necessary to mention any other port of call, as the plaintiff was sent to a hospital for treatment of pthisis when the doctor who examined him at Avonmouth pronounced his case to be one of advanced pthisis.
6. The case of the plaintiff was that he was made to work as a deck crew, north of 38 degrees north latitude, when the ship was in the North American coast; he caught cold, and his illness had developed into pthisis which was diagnosed when the vessel reached Avonmouth. The case of the defendants, on the other hand, was that the plaintiff fell ill when the ship S.S. 'Markhar' was off Gibraltar, on 18th September 1933; and he was never put on duty after that date, during the remainder of the voyage. The plaintiff, according to the defendants, was examined by the defendant company's doctor at Boston, was found ailing, and was kept on medical diet; on examination at other ports of call in America, the doctors did not declare the plaintiff's case to be a hospital case, and the plaintiff could not therefore be sent to any shore hospital. The chief steward, whose duty it was to attend to any com-plaints in oases of - sickness, and who administers medicines from the dispensary on board the ship, gave the plaintiff medicine to be taken internally and also medicines (turpentine liniment) for external application for massage to the throat and chest. No temperature chart of the patients on board was kept, but 'only small scrap-log books', and at the end of each voyage they were thrown away. The chief steward did not bring to the notice of any port authority or any port medical authority in America that the plaintiff was suffering from a bad cough, for the reason that that rested with the Master; common ailments such as cough, &o.; are not usually reported but only contagious and infectious diseases, and death or deaths that may have happened during the voyage are reported. The chief steward did not remember whether there was any medical examination of the plaintiff at Boston on the second visit. The Master of the ship whose duties were the navigation of the ship, and seeing that everything in the ship was going on satisfactorily, deposed to the fact that the plaintiff fell ill off Gibraltar on 18th September 1933; he was given medicine by the chief steward. The plaintiff was examined at Boston by the company's doctor; he was put on medical diet; and at every other subsequent port he was examined by the company's doctor and medicine was given to him; his was not a hospital case, and could not be sent to a shore hospital without doctor's recommendation. The plaintiff, according to the Master of the ship, was not all right at Boston, New York, Philadelphia, Baltimore, and other places. The Master did not know if the plaintiff had fever on. The man was complaining in every port that he had got a bad cold; he had a very bad cold. After the boat had left Boston till it reached London, the plaintiff was not examined by any doctor. At London, the doctor came on board, and asked if the crew were all well; the Master said that they were all well; the port doctor was not told that the plaintiff had cold. The boat was at London for three days; the Master did not see the plaintiff at London, as he had to attend to many other things. The evidence led on the side of the plaintiff that he was made to work when the ship was to the north of 38 degrees north latitude in violation of agreement is not worthy of credit, and it cannot be given preference over the evidence of the Master of the ship, the chief officer and the chief steward-supported by the en. tries in the log books. The Judge in the Court below has, in our opinion, rightly held on the materials on record that whenever the ship reached 38 degrees north latitude, all the Indian crew were put off their duty; this of course includes the plaintiff. The evidence in the case coming from the side of the defendants further establishes the position that the plaintiff fell ill when the ship S.S. 'Markhar' was off Gibraltar, on 18th September 1933, and was never placed on duty on board the ship. The plaintiff was removed to Hamgreen Hospital for treatment of an advanced case of pthisis, when the ship reached Avonmouth on 3rd November 1933. The evidence, such as it is, indicates that the plaintiff was ailing from 18th September 1933; the nature of the plaintiff's illness was such that he could never be placed on duty on board the ship as a laskar for a single day after that date; he was ultimately removed on 3rd November 1933 to a hospital for immediate treatment, when he was found by a doctor to be suffering from advanced ptbisis. The evidence of the chief steward and the Master of the ship, who were both responsible for the health and the safety of the crew on board, shows that although no record was kept in the log books, the illness of the plaintiff from which he has been suffering from 18th September 1933 onwards, required special attention. The evidence on record does not at all indicate that proper care was taken or attention given to the plaintiff, and the only consideration shown to him was that he was not employed as a crew. The doctors at the different ports of call held medical examination of the crew, and passed them as sound, just as the Master of the ship himself reported at London that all the crew were well, in spite of the fact that the plaintiff was suffering from a very bad cold, for which medicines for external and internal use had been given by the chief steward. The plaintiff was not examined by any doctor at Boston on the second visit; at least the chief steward does not remember that. There was no examination of the plaintiff by any Doctor between the time when the ship left Norfolk on 10th October to the date when the vessel reached Avonmouth on 3rd November 1933, when the plaintiff's case was diagnosed to be one of advanced pthisis requiring immediate treatment.
7. It is not for us to express any opinion on the nature of the medical examination so far as the plaintiff was concerned by the doctors employed by defendant 1; but on the evidence before us we have no hesitation in expressing our concurrence with the view indicated in the judgment of the Court below, that defendant 3 should have, in view of the prolonged illness of the plaintiff, suspected something serious with the plaintiff; and to that has to be added that the negligence in this behalf was fully shared by the chief steward, whose duty was to look after the ailing crew on board the ship. In our judgment, the chief steward, charged with the duty of attending to complaints incases of sickness and the Master of the vessel who by the very nature of things exercised the functions of the owners of the ship when on high seas, for the purpose of looking after the health and safety of the crew employed on the ship, were careless and negligent in the matter of taking reasonable and proper care of the plaintiff in his illness, which within the period of time from 18th September to 3rd November 1933 had developed into an advanced case of pthisis. The plaintiff was, on account of the omission on the part of the servants of defendant 1, placed in a position of risk of life. If the life of the plaintiff has been saved, he has, according to medical evidence, been incapacitated from doing work for the rest of his life.
8. In the above view of the case before us, the plaintiff was entitled to more substantial damages than that has been awarded by the Court below. In ascertaining the amount of damages, difficulty must always be experienced; but the assessment of any amount on the head of medical charges is not possible in the case before us, inasmuch as no materials on the record would justify the same. The amount of damages the plaintiff was entitled to recover must be ascertained on this basis that he was, according to the doctor, examined as a witness by the plaintiff, not fit for any active service, regard being had to the nature of the employment he secured under defendant 1. The employment by defendant 1 was of a temporary nature on a pay of Rs. 20 (plus Rs. 19 for food), for a period not exceeding 12 months and that may be taken to be nature of employment generally, so far as laskars were concerned. The character of the work done by the Indian laskars as deck crew (of whom the plaintiff was one) was such as compelled them to undergo the rigours of the weather, when on high seas; and taking all things into consideration, it would not be a low estimate to hold that 20 years of active service was enough for a laskar. On that estimate, the monetary value of the damage caused to the plaintiff by being incapacitated for active service cannot, in our judgment, exceed the amount of Rs. 5,500; and the plaintiff could not be held entitled to recover more than that amount. The amount of Rs. 5,500, the estimated damages, would include compensation on all heads, legitimately claimable by the plaintiff in the suit.
9. The damage in the case before us has to be decreed against defendant 1; and on this part of the case, it was argued before us that regard being had to the doctrine of common employment, defendant 1 could not be held liable for damages claimed by the plaintiff on account of the negligence of the common employee, defendant 3, the Master of the ship, who was not a respondent in the cross objections. The chief steward in direct charge of medical attendance on board the ship S.S. 'Markhar' was not a party to the suit at all. The question of non-liability of defendant 1 on the ground of common employment was not raised in the written statement filed in the suit by defendant 1. There can be no doubt that the decision of the question depends upon evidence in a particular case, and in that view of the matter it could not be allowed to be argued for the first time in reply to the cross objections preferred by the plaintiff. As the question was allowed to be argued on both sides, we proceed to deal with the same, on the materials that are before us, so far as the common employment of the plaintiff and defendant 1, the Master of the ship S.S. 'Markhar', was concerned. In order to make the defence based on the principle usually connected with the case in Priestly v. Fowler 3 M & W 1 decided in the year 1837 known as the doctrine of common employment, applicable, the person who is sought to be made liable for injuries caused by the negligence of his servant must show that the injured man and man doing the injury were engaged in common undertaking. This principle which exempts an employer from responsibility to his servant for the consequences of the negligence of another servant in the common employment, is well established as a part of the law of United Kingdom; but question must always arise as to its exact limits, regard being had to the vagueness of its original statement in Priestly v. Fowler (1837) 3 M. & W 1. The principle has been referred to in a case decided by the Allahabad High Court (Blanchett v. Secretary of State (1912) 9 A L J 173) in which it was observed by Richards C. J. that a servant has no cause of action against his master for the neglect of another servant in the common employment of the same master; and this, notwithstanding the fact that the nature of the employment of the servant suffering from the injury and the servant whose neglect causes damage is very dissimilar.
10. The law as to common employment was exhaustively discussed in Fanton v. Danville (1932) 2 K B 309 and all the important decisions arising for consideration were referred to in the judgments delivered by the learned Lord Justices in that case and reference may in this connection be specially made to the case in Hedley v. Pinkney & Sons Steamship Co. (1894) A C 222. In the state of authority of decisions in England, and in view of apparent conflict of judicial opinion on the subject, the rule as to common employment, which may very well be adopted in this country as one based on principle of justice, equity and good conscience, is to be found in what was stated by Lord Chelmsford in Bartons Hill Goal Co, v. M'Guire (1858) 3 Macq (H.L.) 300 finally decided by the House of Lords:
it is necessary to ascertain in each particular case', said his Lordship : whether the servants are fellow labourers on the same work, because although a servant may be taken to have engaged to encounter all risks which are incident to the service which he undertakes, yet he cannot be expected to anticipate those which may happen to him on occasions foreign to his employment. Where servants therefore are engaged in different departments of duty, an injury committed by one servant upon the other, by carelessness or negligence in the course of his peculiar work, is not within the exception, and the master's liability attaches in that case in the same manner as if the injured servant stood in no such relation to him. There may be some nicety and difficulty in particular cases in deciding whether a common employment exists; but in general by keeping in view that the servant must have known or expected to have been involved in the service he undertakes, a satisfactory conclusion may be arrived at.
11. In the case before us, it is apparent that there are no materials on which a decision may be given as to the applicability or otherwise of the rule of common employment-non-liability for-damages on that ground not having been pleaded in defence. Defendant 1, T. and J. Brocklebank Ltd., owners of the ship S.S. 'Markhar' in the written statement filed in Court, denied that the defendants were guilty of any acts of commission and omission or that any loss was caused to the plaintiff by alleged commission and omission of the defendants; the defendants in the suit were the owners (defendant 1), the agents (defendant 2) and the Master of the ship (defendant 3). In the next place, the rule of the common employment cannot be made applicable in the case, seeing that the plaintiff was permitted to be off duty from 18th September 1933; and was never afterwards employed as a crew on board the ship during the term of his employment. The negligence complained of in respect of which damages have been assessed, related to a period of time when the plaintiff and defendant 3 were not in any common employment, the plaintiff being put practically on sick leave on account of his illness.
12. If the principle of common employment has to be applied at all, in spite of the position indicated above, the plaintiff and defendant 3 cannot be held to have been fellow labourers in the same work. They were engaged in different departments of duty which had no intimate connection or dependence. The duties of defendant 3 were 'the navigation of the ship, seeing that everything in the ship was going on satisfactorily'. The whole ship was in his charge, and he was in the position of the owner of the ship. The chief steward's duty was to see the crew being properly fed, and in cases of any sickness was to attend to any complaints. He was in charge of the dispensary on board the ship; and he was to see to the welfare of the crew. The duties of the laskars, of whom the plaintiff was one, was washing paint work, painting, overhauling when necessary ship's working gear, washing down decks and keeping look-out when necessary. On this state of things, regard being had to the nature of duties presumably assigned by the owners of the ship to the servants on board the ship, it would only be reasonable and proper to hold that the different classes of servants, the laskars on the one hand and the chief steward and Master on the other on board the ship S.S. 'Markhar,', were engaged in different departments of duty so absolutely unconnected with each other as to make their servants not engaged in a com. non employment, and in the words of Lord Chelmsford, in Bartons Hill Goal Co. v. M'Guire (1858) 3 Macq (H.L.) 300 referred to above, an injury committed by one servant upon the other, by careless-ness or negligence in the course of his peculiar work, is not within the exception; and the master's liability attaches in that case in the same manner as if the injured servant stood in no such relation to him.
13. Judging from all the different standpoints mentioned above, the plaintiff is entitled to get Rs. 5,500, the amount assessed by us, as damages from the owners of the ship S.S. 'Markhar', T. and J. Brocklebank Ltd., defendant 1 in the suit, in which this appeal has arisen. The result of the conclusions arrived at by us as mentioned above is that the appeal by defendant 1 in the suit is allowed, the decree as passed by the trial Court being set aside. The cross objections preferred by the plaintiff in the suit, respondent in the appeal, are also allowed; and the defendant is held liable to the plaintiff for damages to the extent of Rs. 5,500 assessed by us. As to costs in the litigation, we direct that the plaintiff is to get his costs both of the trial Court and of this Court from defendant 1. Such costs to be assessed on the basis of the claim as decreed by us, i.e. Rs. 5,500 only.