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- Tex. 211 8. W. 214.) damages of plaintiff in error, Dr. H. other physician, to which defendant Leslie Moore, for an alleged breach in error responded with a request to by plaintiff in error of his contract send him in a hurry. Until about a to attend and treat the wife of de- quarter past 9 o'clock, there was anfendant in error, during and after other physician in the neighborhood birth of a child, and for alleged mal- of defendant in error, with whom practice on the wife, during her con- defendant in error talked, without finement, by Dr. A. D. Hardin, for asking him to attend Mrs. Lee. whose acts and negligence, it was After being requested by defendant charged, plaintiff in error was liable. in error to send another physician The plaintiff in error answered that in a hurry, plaintiff in error telehe arranged for Dr. Hardin, who phoned to Dr. Hardin, whose general was a careful and skilful physician, reputation in Dallas as a physician to attend defendant in error's wife, was good, saying that he had a case during the childbirth, by express

to which he wanted to send him, agreement with defendant in error, that it was a partnership case, of and that he was to be notified in the which he expected to take care, and event any complications arose, but plaintiff in error requested Dr. Harwas never so notified, and that he din to go out and look after the wife had not violated his agreement with of defendant in error, and to notify defendant in error.

him if he needed help or anything The material facts proved were went wrong, whereupon he would that plaintiff in error and defendant either come himself or send assistin error had entered into an agree- ance. Dr. Hardin reached the home ment, whereby the wife of defend- of defendant in error about 10 ant in error was to have the sery- o'clock and attended to the delivery ices of plaintiff in error, as a physi- of the child, and there was evidence cian, for an agreed fee, during the to raise the issue of injury to Mrs. approaching confinement of the Lee through acts or negligence of wife, who was visited and examined Dr. Hardin. Defendant in error exby defendant in error between 1 and pressed no dissatisfaction to Dr. 2 o'clock on the morning of February Hardin, at the time the child was 6, 1911, and at that time plaintiff in delivered, and paid him on his secerror promised to return when need- ond or third visit the full fee, which ed. On account of the setting of a he testified he had agreed to pay lawsuit against plaintiff in error and plaintiff in error, and paid nothing others, at Fort Worth, for February to plaintiff in error. 6, 1911, and pressing professional A jury trial resulted in a verdict engagements, plaintiff in error con- and judgment for plaintiff in error, cluded that he would not be able to which was reversed by the court of return to Mrs. Lee. It was the cus- civil appeals, and section B of the tom among the reputable physicians commission of appeals recommendof Dallas, where the parties resided, ed that the judgment of the court for a physician, who determined of civil appeals be affirmed. that he could not meet all his en- The trial court charged the jury gagements, to send some other phy- that the law required the exercise sician, and, about 8 o'clock on Feb- of ordinary care by plaintiff in error ruary 6, 1911, plaintiff in error tele- in his personal attention to Mrs. phoned Dr. Hardin that he might Lee, and also required the exercise need him during that morning. Be- of ordinary care by plaintiff in error fore 9 o'clock, defendant in error in the selection of another physician notified Dr. Moore that it was time for her. The trial court refused refor him to come to Mrs. Lee, when quests to charge that any negligence Dr. Moore replied that, because of or lack of skill on the part of Dr. important business, he would be un- Hardin, resulting in injury to Mrs. able to come, but he would send an- Lee, was chargeable to plaintiff in

substitute.

as

contractor.

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error, regardless of the care exer- skill, in the absence of facts to cised by plaintiff in error in Dr. Har- establish that Dr.

liability for din's selection.

Hardin was acting acts of The controlling question here is the agent of whether the action of the trial court plaintiff in error when he was treatwas correct in giving and refusing

ing defendant in error's wife. these charges.

From the very nature of the emIt is quite undeniable that de- ployment, the physician who takes fendant in error assented to plaintiff

the place of another must, while he in error's own nonattendance on his

alone is treating the

patient, exercise his Independent wife. He admits that, when tele

own judgment and phoned plaintiff in error's reasons

his own skill; and he is truly an for seeking to be released from

independent contractor. treating his wife, his response was

In the leading case of Cunningto urge haste in sending another

ham v. International R. Co. 51 Tex. physician. It is immaterial to the

510, 511, 32 Am. Rep. 632, it is matter of plaintiff in error's liability said: “The true test

by for Dr. Hardin's negligence or lack which to determine whether one who of skill, under the issues joined here- renders service to another does so in, whether plaintiff in error repre- as a contractor, or not, is to ascer. sented Dr. Hardin to be his partner tain whether he renders the service at the time he proposed sending in the course of an independent occuhim. No pleading was filed by de pation, representing the will of his fendant in error, alleging that Dr. employer only as to the result of the Hardin was held out as plaintiff in work, and not as to the means by .error's partner, nor seeking to hold

which it is accomplished.' Shearm. plaintiff in error liable as a partner

& Redf. Neg. $876–79; 1 Redfield, with Dr. Hardin, nor seeking to re

Railways, 505; Pack v. New York, 8 cover any damages for any misrep- N. Y. 222. It is now the well-estabresentation of Dr. Hardin's status

lished doctrine in Europe, and the

generally prevailing rule in this as a partner. So the question is,

country, that the ordinary relation simply, What was plaintiff in error's

of principal and agent, and master duty, under the law, when defend

and servant, does not subsist in the ant in error asked him to speedily

case of an independent employee or despatch another physician to treat

contractor who is not under the imMrs. Lee! To our minds this ques- mediate direction of the employer.' tion admits of no answer save that The doctrine is reaffirmed in Cun

the duty of plain- ningham v. Moore, 55 Tex. 373, 40 Physician-care

v in selecting tiff in error was to

Am. Rep. 812, in this language: “It substitute.

exercise ordinary is a well-settled principle, founded care in the selection of the physi- on reason and supported by abuncian to be sent, as the jury was in- dant authority, that the relation structed by the trial court.

and liability of master depend upon The opinion in Texas C. R. Co. v. the right of control over the servZumwalt, 103 Tex. 607, 30 L.R.A. ant." (N.S.) 1206, 132 S. W. 113, declared This court said in Wallace y. that where a railroad company fur- Southern Cotton Oil Co. 91 Tex. 21, nished an employee with a physi- 40 S. W. 399: "If Davis was an incian, the railroad company would dependent contractor in the sense not be held liable for the physician's that the company had no right of negligence unless, in treating the control as to the manner in which employee, he was the agent of the the work was to be done, then he railroad company.

No more can was not the servant of the company; plaintiff in error be held liable for and the plaintiff, having been emDr. Hardin's negligence or lack of ployed by him, cannot recover.

(-Tex. 211 S. W. 214.) Cunningham v. International R. Co. sage one Dr. P. arrived, stating that 51 Tex. 509, 32 Am. Rep. 632." Dr. Myers was out of town, and that

The law applicable to the liability he represented him, and proceeded of one medical practitioner for the to take charge of the case, and to acts of another, who undertakes to deliver the plaintiff's wife of her look after the former's patients, and child, without any objection being the reason therefor, is well con- made. It was not suggested that his densed in De Forrest v. Wright, 2 treatment of the wife was unskilful, Mich. 369, 370, as follows: "To hold but evidence was offered to show that every person, under all circum- that, after the birth of the child, stances, would be responsible for in- he improperly severed the umbilical juries committed by another person cord so close to its body that it was while employed in his behalf, in- impossible afterwards to tie it, and volves an absurdity no one would that the child consequently died, in countenance. It would create a pen- a short time, of umbilical hemoralty from which few could escape; rhage. The shock caused by her for every man is or ought to be, di- child's death under these circumrectly or indirectly, nearly or re- stances, it was testified, so affected mote y, engaged in the service or on the mother as to seriously injure behalf of his fellowman. But from her health, and render her an inan examination and comparison of valid for many months, thereby dethe adjudged cases, the rule now priving the plaintiff of her services seems very clearly to be this: That and companionship, and making it where the person employed is in the necessary for him to incur expenses exercise of an independent and dis- which he would not otherwise have tinct employment, and not under been called upon to meet; and this the immediate control, direction, or suit was brought to recover comsupervision of the employer, the pensation for such loss of services latter is not responsible for the neg- and companionship, and for such exligence or misdoings of the former.' penses, on the theory that Dr. P. was

The case last cited was followed the agent and representative in this by the New Jersey court of errors matter of the defendant, and that, and appeals in Myers v. Holborn, 58 therefore, he was legally liable for N. J. L. 193, 30 L.R.A. 345, 55 Am. these results of Dr. P.'s unskilfulSt. Rep. 606, 33 Atl. 389, on facts ness. The trial judge adopted this

similar to those of this case, theory, advanced on behalf of the the court saying: "The principal

“The principal plaintiff, in his charge to the jury, facts which were proved at the trial and so instructed them. In this, it of the cause are as follows: The de- seems to me, there was an error. fendant, a practising physician of Dr. P. and the defendant were each the city of Bayonne, promised the of them practising physicians of this plaintiff, who resided in that city, state, having no business connection to attend his wife professionally with one another, except that Dr. during her confinement. A short P. was attending the patients of the time before that event took place, latter while he was temporarily abhe left the city for a three days' va- sent. Even if it be admitted, therecation; having first visited the wife fore, that Dr. P. was employed by of the plaintiff, and made an exami- the defendant to attend upon the nation of her condition, from which wife of the plaintiff, that fact did he concluded, as he informed her, not render the defendant liable for that his services would not be needed his neglect or want of skill in the for a few days. Before his return, performance of this service, for an however, she was confined. The examination of the authorities will plaintiff, when his wife's travail show that a party employing a percame on, telephoned to the house son who follows a distinct and indeof the defendant for him to come at pendent occupation of his own is not once; and in response to this mes- responsible for the negligence or im

case.

proper acts of the other. Laugher Given the most favorable interprev. Pointer, 5 Barn. & C. 547, 108 tation to defendant in error, in deEng. Reprint, 204, 4 L. J. K. B. 309, termining plaintiff in error's respon8 Dowl. & R. 550; Milligan v. Wedge, sibility for the alleged negligence 4 Perry & D. 714; 12 Ad. & El. 737, and lack of skill of Dr. Hardin, the 113 Eng. Reprint, 993, 10 L. J.Q. B. facts of this record disclose nothing N. S. 19; De Forrest v. Wright, 2

further than an undertaking by Mich. 368; Wood, Mast. & S. $ 311."

plaintiff in error to furnish another In the light of the long-established

physician, whose work, in the abcustom among the Dallas doctors,

sence of plaintiff in error, was necesfor a doctor unable to treat all his

sarily entirely free from his control. patients to send another doctor to

And, as said by the Ohio supreme those he is not able to attend, we do not think that plaintiff in error's

court in Youngstown Park & Falls statements that he expected to take

Street R. Co. v. Kessler, 84 Ohio St.

79, 36 L.R.A.(N.S.) 53, 95 N. E. care of this case, and that it would be a partnership case, can be reason

511, Ann. Cas. 1912B, 934: "It is ably construed otherwise than as

not the law that one who contracts meaning that plaintiff in error ex

to furnish or pay for medical or surpected to resume

gical aid and attention to another -partnership

charge of the case is liable, at all events, for the mis

when his other en- takes or incompetency of the phygagements would permit, and that sician or surgeon he may employ he expected Dr. Hardin to be com- for that purpose. There must be pensated for the services he would some neglect or carelessness or misrender, while plaintiff in error would conduct on his part in the performbe compensated for the services he ance of his obligations arising under would render. In discussing the ef- such contract. If he act in good

. fect of a division of service between a

faith and with reasonable care in physicians, Ruling Case Law says: the selection of the physician or sur“They may make such division of

geon, and has no knowledge of the service as, in their honest judgment, incompetency or lack of skill or want the circumstances may require, and of ability on the part of the person each, in serving with the other, is

employed, but selects one of good rightly held answerable for his own

standing in his profession, one auconduct, and as well for all the

thorized under the laws of this state wrongful acts or omissions of the

to practise medicine and surgery, other which he observes and lets go on without objection, or which, in

he has filled the full measure of his the exercise of reasonable diligence contract, and cannot be held liable under the circumstances, he should

in damages for any want of skill or have observed, but beyond this his malpractice on the part of the phyliability does not extend. Finally,

sician or surgeon employed.” it seems that a physician or surgeon

In our opinion, there was no error may, on leaving town or in other

in the charge of the court, nor case of need, recommend or em

in the refusal of ploy another physician or surgeon

the charges request- act of substitate.

-liability for to treat a patinnt for him, and in the ed, and, finding no absence of negligence in such selec- other reversible error in the record, tion will not be liable for the negli- it is ordered that the judgment of gence or lack of skill of the substi- the Court of Civil Appeals be retute practitioner.” 21 R. C. L. pp. versed, and that the judgment of 394, 395.

the District Court be affirmed.

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ANNOTATION.

Responsibility of physician or surgeon for acts or neglect of substitute.

I. In general, 191.

In Norton v. Hefner (1917) 132 Ark. II. Noncontract cases, 191.

18, L.R.A.1918C, 132, 198 S. W. 97, it III. Contract cases, 192.

was held that a surgeon who comes I. In general.

from his village home to a city hosCases are excluded where both

pital, to perform an operation, is not physicians were present at the time

liable for the negligence of an interne of the conduct complained of, as are

in the hospital in looking after the also cases of partnership.

subsequent dressing of the wound, if A physician or surgeon is of course

he was not negligent in the selection responsible for the malpractice of his

of the interne who should perform that apprentice (Hancke v. Hooper (1835)

duty. But it was held to be no answer 7 Car. & P. (Eng.) 81), of his agent

to a suit against a surgeon, for leaving (Landon v. Humphrey (1832) 9 Conn.

a rubber tube in the plaintiff's body 209, 32 Am. Dec. 333), or assistant

after an operation, that the rubber (Tish v. Welker (1897) 7 Ohio N. P.

tube may have been left in her wound 472, 5 Ohio S. & C. P. Dec. 725).

by an attendant nurse or another Thus, a physician, who has taken

physician in the hospital, where she charge of and assumed the duties and

testified that the surgeon

was her

physician, and operated on her, and responsibilities of a case of a broken leg himself, and who on his own ac

attended her while in the hospital, and count employs an assistant to dress

that the other physicians were acting and treat it, is responsible to the pa

under his directions in the treatment tient for the malpractice of such as

of her, and that he discharged her sistant. Tish v. Welker (Ohio) su

from the hospital at the time she left.

Saucier v. Ross (1916) 112 Miss. 306, pra. The cases upon the question wheth

73 So. 49, 14 N. C. C. A. 668. er the surgeon or physician of a hos

It may be noted that De Forrest v. pital patient is responsible for the

Wright (1852) 2 Mich. 368, quoted negligence of hospital physicians form

from in the reported case (MOORE v. a special class, as they arise under

LEE, ante, 185) was a case of the recontract, but depend upon whether

sponsibility of the hirer of draymen, the defendant has undertaken the part

for their negligence. of the treatment in which the neg

II. Noncontract cases. ligence occurred.

A physician going out of town, who It was held in Hunner v. Stevenson

recommends a certain other physician (1913) 122 Md. 40, 89 Atl. 413, that

to his patients, is not liable for the à surgeon who performs an operation malpractice of the person recommendis not "liable for the negligence of

ed. Keller v. Lewis (1898) 65 Ark. other physicians, nurses, or internes

578, 48 S. W. 755; Hitchcock v. Burin hospitals, in the after treatment,

gett (1878) 38 Mich. 501; Stokes v. unless he specially undertakes such

Long (1916) 52 Mont. 470, 159 Pac. employment." Similarly, the propri

28 (obiter). etor of a hospital cannot escape re

Thus, in Keller v. Lewis (Ark.) susponsibility for the negligence of

pra, where a physician, on being apnurses and internes in permitting a

proached for treatment, gave tempatient of unsound mind to take poi

porary treatment, and stated that he son, because he is under the care of

was going away for two or three his own physician a small part of the

weeks, and that in his absence a named time. Broz v. Omaha Maternity & physician would attend to his cases, General Hospital Asso. (1914) 96 Neb. it was held to be error to refuse the 648, L.R.A.1915D, 334, 148 N. W. 575, following instruction asked by him in 7 N. C. C. A. 298.

a suit for negligence: “A physician

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