(concurring in part and dissenting in part).
I concur in the fine opinion of the Majority that the question of Dr. Lip-schutz’s vicarious liability should have been submitted to the jury. I dissent from the view that Dr. Chodoff cannot be vicariously accountable.
In the factual situation presented, before attempting to identify servants and agents, it is necessary to isolate principals, those who are susceptible to vicariout accountability. The hospital, though not in this suit, could be held a principal, this apart from the issue whether the hospital could be looked to for damages.1 See Brown v. Moore, 247 F.2d 711, 69 A.L.R.2d 288 (3 Cir. 1957); Rockwell v. Stone, 404 Pa. 561, 173 A.2d 48 (1961). So, too, can the doctor who contracted to perform an operation, expressly or impliedly. McConnell v. Williams, 361 Pa. 355, 65 A.2d 243 (1949); Benedict v. Bondi, 384 Pa. 574, 122 A.2d 209 (1956); Yorston v. Pennell, 397 Pa. 28, 153 A.2d 255 (1959); Rockwell v. Kaplan, 404 Pa. 574, 173 A.2d 54 (1961).
Also, under Rockwell v. Stone, 404 Pa. 561, 173 A.2d 48 (1961), one responsible “for a step in the operative procedure, the anesthesia step,” [See Rockwell v. Kaplan, 404 Pa. 574, 579, 173 A.2d 54 (1961)] can be a principal. In fact, the circumstances here are quite similar factually to those in Rockwell v. Stone, 404 Pa. 561, 173 A.2d 48 (1961) and Rockwell v. Kaplan, 404 Pa. 574, 173 A.2d 54 (1961) at least insofar as the relationship between the doctors is concerned. In those instances, both doctors-on separate appeals, by virtue of their respective responsibilities regarding the same operation, were held to be principals and subject to vicarious liability. In this appeal, Dr. Chodoff, like Dr. Stone, was in charge of the anesthesia and the blood transfusion. Like Dr. Kaplan, Dr. Lipschutz was responsible for the whole operation. Dr. Chodoff was his “agent for a step in the operative procedure, the anesthesia step.” Rockwell v. Kaplan, 404 Pa. 574, 579, 173 A.2d 54 (1961).
On the question of whether Kohn and his department became the agent of Dr. Chodoff, the Majority feels that Kohn could not, because Dr. Chodoff did not have the “right of control over the manner of performance.” This has been the traditional test in Pennsylvania where there was an agency situation involving a borrowed servant or an independent contractor.2 Mature v. Angelo, 373 Pa. 593, 97 A.2d 59 (1953) and the cases cited within. See Mantonti v. Research Cottrell, Inc., 202 F.Supp. 527 (E.D.Pa. 1962). But the four Pennsylvania decisions dealing with the doctrine of Respondeat Superior in medical malpractice disputes, arising out of an operation, have not required that there be “control over the manner of performance,” in order to find an agency relationship. McConnell v. Williams, 361 Pa. 355, 65 A.2d 243 (1949); Benedict v. Bondi, 384 Pa. 574, 122 A .2d 209 (1956); Yorston v. *56Pennell, 397 Pa. 28, 153 A.2d 255 (1959); Rockwell v. Stone, 404 Pa. 561, 173 A.2d 48 (1961); Rockwell v. Kaplan, 404 Pa. 574, 173 A.2d 54 (1961). Rather these decisions represent an attempt by the Pennsylvania Supreme Court to carve out a test of the control that will be required to make an employee of the hospital a servant of a doctor involved in an operation. In McConnell the court formulated a fiction, the so-called “captain of the ship doctrine”,3 to do away with the traditional test of control and widen a doctor’s vicarious liability. The court set apart the period of an operation as one of special consideration with a special rule governing it, “in view of the high degree of protection to which an anesthetized, unconscious patient is entitled.” McConnell, supra, 361 Pa. p. 362, 65 A.2d p. 246. Said the court:
“But for the period of the operation itself the situation is entirely different, and if operating surgeons were not to be held liable for the negligent performance of the duties of those then working under them, the law would fail in large measure to afford a means of redress for preventable injuries sustained during the course of such operations.” McConnell, 361 Pa. p. 364, 65 A.2d p. 247; Rockwell, 404 Pa. p. 579, 173 A.2d p. 56.
The restrictive connotation of captain of the ship accountability has not been strictly followed.4 While the court in those decisions reiterated the test of “right of control over the manner of performance”, its application was troublesome, for the question still facing the court was what extent of “control over the manner of performance” it would' require. In Yorston, there was no mention per se of the captain of the ship test. The court there spoke of respondeat superior principles. There was no. factual determination regarding whether there was control over the manner of performance as to Dr. Rex who was directed and ordered to take a case history and did it negligently. In Rockwell, the-sole indication of control over the manner of performance of Dr. Stone was that; Dr. Kaplan had the authority to stop the administration of the anesthesia. Although the captain of the ship doctrine was referred to, it was not determinative. The court discussed the control it would require. It noted that Dr. Stone-acted on Dr. Kaplan’s business; that operating surgeons should be “held liable for the negligent performance of the-duties of those then working under them.” Rockwell v. Kaplan, 404 Pa. 574, 579, 173 A.2d 54, 56 (1961).
Where there are specialists connected I with a phase of an operation, it is highly unlikely that doctors in charge would have enough familiarity with the particular procedure to have effective control' over the manner of performance. As. Mr. Justice Maxey said in Silveus v. Grossman, 307 Pa. 272, 278, 161 A. 362 (1932) and Rodgers v. Saxton, 305 Pa. 479, 488, 158 A. 166 (1932), quoted in McConnell v. Williams, supra: “Responsibility is commensurate with authority.”’ In this trial there was enough evidence to show that Dr. Chodoff had the au*57'thority to and did order the blood from "the laboratory, call Kohn to account when he saw error, and presumably' order Kohn, to verify which was the proper blood, that Kohn was acting under Dr. Chodoff’s orders and on his business. All •of that constitutes enough control over Kohn by Chodoff as to make the latter vicariously liable. Said the court in McConnell at 361 Pa. p. 362, 65 A.2d p. 246:
“If, then, it be true that defendant had supervisory control and the right to give orders to the interne in regard to the very act in the performance of which the latter was negligent, it would follow, according "to the classical test of agency herein-before stated, that a jury would be justified in concluding that the temporary relationship between defendant and the interne was that of master and servant s
This has been the theme reiterated and determinative in the later opinions. There is the recurring presence of a man of authority, giving orders, directing this or that be done regarding the operation.5 Therefore, as Pennsylvania law now stands, the Supreme Court of that Commonwealth would, I think, hold Dr. Chodoff vicariously liable for Kohn’s alleged negligence.
The Majority has stated that the Commonwealth’s law does not contemplate two captains of the ship. That may be so, within the framework of that fiction, but the Rockwell eases indicate to me that with respect to the same operation, there can be two principals, whether or not one labels one doctor captain of the S.S. Anesthesia and the other captain of the S.S. Operation, or characterizes the relation in captain-first-mate terms.
Since the captain of the ship rule has not been categorically repudiated, the Majority is justified in holding that Kohn, because he entered upon the operating room, brought himself within the doctrine, and became the agent of Dr. Lipschutz.
But I believe that Pennsylvania would countenance another basis of liability for Dr. Lipschutz, that of vicarious liability for his agent Dr. Chodoff, whose sub-agent Kohn was negligent, all in the scope of their respective employments. See Rockwell cases, supra.
As I see it, there is enough here to permit the question of whether Kohn became the agent of either doctor or both of them, to go to the jury under proper instructions. Benedict v. Bondi, 384 Pa. 574, 122 A.2d 209 (1956); Yorston v. Pennell, 397 Pa. 28, 32, 153 A.2d 255, 85 A.L.R.2d 872 (1959); Rockwell v. Stone, 404 Pa. 561, 173 A.2d 48 (1961). See also Mature v. Angelo, 373 Pa. 593, 598, 97 A.2d 59 (1953); Siidekum, Administrator v. Animal Rescue League of Pittsburgh, 353 Pa. 408, 45 A.2d 59 (1946).
The Majority feels that, in light of plaintiff’s concessions, Rule 51 F.R.Civ.P. is properly applied, there being no plain error. It seems to me that if there is sufficient evidence to support a proper charge, and that charge was on a fundamental point, error by counsel in the applicable law does not relieve the trial judge of charging the law of the case. If it was fundamental I believe we ought to recognize it on appeal. Counsel can stipulate fact, but ordinarily cannot stipulate or concede law. It is not necessary that the error be plain or obvious, to be cognizable. District Courts make few “obvious” errors, they are invariably arguable. This was arguable but none the less fundamental. It went to the liability itself of a defendant under applicable law. See Callwood v. Callwood, 233 F.2d 784, 788 (3 Cir. 1956); McNello v. John B. Kelly, Inc., 283 F.2d 96 (3 Cir. 1960).
. See Michael v. Hahnemann Medical College and Hospital, 404 Pa. 424, 172 A.2d 769 (1961) which reaffirmed the rule in Pennsylvania that charities and other eleemosynary institutions are immune from liability for the torts of their agents, servants, workmen and employees.
. In effect the problem as it appears to the Majority is: Did the hospital loan its equipment and employees to the doctors establishing a relation of master and servant, or did the hospital and its laboratory undertake to perform a specific job and be responsible to the doctors only for a result, i. e., the preparing of blood for the operation. See Mantonti v. Research Cottrell, Inc., 202 F.Supp. 527 (E.D.Pa. 1962).
. This doctrine asserts that as a matter of law, in the course of an operation, in the operating room of a hospital, and until the surgeon leaves the room at the conclusion of the operation, he is in the same complete charge of those who are present and assisting him as is the captain of a ship over all on board. McConnell, supra, 361 Pa. p. 362, 65 A.2d p. 246.
. In Benedict, the negligent act causing the injury probably occurred outside the operating room, i. e., the faulty preparation of the hot water bottles. The court was forced to bring somehow into the operating room the negligent act. In Yors-ton, the operating surgeon in fact was not in control, but subject to Pennell, the defendant doctor; the initial negligent act occurred outside the operating room, before the operation began, i. e., the making of the case history; further, the operation itself was a success. In Rockwell v. Stone, Stone was deemed captain of the ship, even though he was not present when the badly administered injection (not an operation) took place which injection was made outside the four walls of the operating room.
. McConnell, 361 Pa. pp. 362-363, 65 A.2d pp. 246, 247; Benedict, 384 Pa. pp. 577, 579, 122 A.2d pp. 210, 211; Yorston, 397 Pa. p. 40, 153 A.2d p. 260; Rockwell v. Stone, 404 Pa. p. 568, 173 A.2d p. 51; Rockwell v. Kaplan, 404 Pa. p. 578. 173 A.2d p. 56.