Aderhold v. Bishop

• Decision Date: 18 December 1923
• Docket Number: 11939.
• Parties: ADERHOLD ET AL. v. BISHOP.
• Court: Oklahoma Supreme Court

221 P. 752

94 Okla. 203, 60 A.L.R. 137, 1923 OK 1141

ADERHOLD ET AL. v. BISHOP.

No. 11939.

Supreme Court of Oklahoma

December 18, 1923

Where a patient engages the services of a firm of surgeons to perform a surgical operation for the removal of a goiter, and goes to an incorporated hospital, owned and operated exclusively by the operating surgeons, for the operation, and where during the operation the services of a head nurse of the hospital and a general employee of the hospital are used by the operating surgeons in the performance of the operation, such operating surgeons are liable to the patient for any negligent act of such head nurse in respect of the service performed by her and made use of by the operating surgeons in the performance of the operation.

Under such circumstances the relation of master and servant exists between the operating surgeons and the head nurse during such time as is required for the performance of the operation although such head nurse may not be in the regular employ of the operating surgeons.

A third person to whom servants of a general master have been temporarily loaned, with their consent, is for the time being their master; he having for the time being control of the servant.

Record examined, and held, that the instructions given by the court to the jury fairly stated the law applicable to the case.

Record examined, and held, that no misconduct on the part of plaintiff's attorney, or abuse of discretion on the part of the trial court sufficient to justify a reversal, is shown.

Record examined, and held, that the verdict for $12,620 is excessive upon the facts proven, and that the judgment should be reversed, and a new trial granted, unless a remittitur is filed for all in excess of $7,500 and interest thereon from date of judgment.

Commissioners' Opinion, Division No. 5.

Appeal from District Court, Canadian County; James I. Phelps, Judge.

Action by Bertha E. Bishop against T. M. Aderhold and J. A Hatchett, to recover damages for personal injuries. Judgment for plaintiff, and defendants appeal. Modified and affirmed.

In an action against a firm of surgeons for personal injuries sustained by a patient during an operation due to alleged negligence, where a question during cross-examination of defendants as to whether the sanitarium owned by defendants wherein the operation took place was indemnified against liability for personal injuries was excluded, but thereafter the question as to whether defendants were personally indemnified for personal injuries was permitted to be answered in the negative, after which an objection was sustained, held in view of cautionary instructions, that there was no abuse of discretion on the part of the court nor misconduct on the part of plaintiff's attorney requiring a reversal.

M. D Libby, of El Reno, and Ames, Lowe & Richardson, of Oklahoma City, for plaintiffs in error.

H. W. Morgan, of Anadarko, and Babcock & Trevathan, of El Reno, for defendant in error.

FOSTER C.

On the 10th day of May, 1918, the defendant in error, Bertha E. Bishop, as plaintiff below, commenced an action in the district court of Canadian county against the plaintiffs in error, T. M. Aderhold and J. A. Hatchett, doing business as the El Reno Sanitarium and Training School for Nurses, defendants below, to recover the sum of $25,240, as damages resulting from the alleged negligent performance of a surgical operation for the removal of a goiter. The parties will be hereinafter referred to as they appeared in the court below.

The plaintiff's action arose out of the following circumstances:

The plaintiff, while undergoing a surgical operation in the El Reno Sanitarium and Training School for Nurses, on the 23d day of July, 1917, for the removal of a goiter or enlargement of the thyroid glands, suffered a burn upon her lower limbs. The defendants, Dr. J. A. Hatchett, and Dr. T. M. Aderhold, of El Reno, Okl., were then partners in the practice of medicine and surgery, and performed the surgical operation. Dr. Aderhold was the operating surgeon and Dr. Hatchett his assistant. The burn upon the lower limbs of the plaintiff was not discovered except through the complaint of the plaintiff herself, after she had been removed from the operating table to her room in the sanitarium, and had so far recovered from the effect of the anæsthetic as to be able to complain of the pain in her lower limbs.

The El Reno Sanitarium is and has been for many years a corporation organized and existing under the laws of the state of Oklahoma, its true corporate name being "El Reno Sanitarium and Training School for Nurses." The incorporators were J. A. Hatchett, Mary H. Hatchett, F. H. Clark, and Elizabeth Clark, and its principal purposes, as expressed in its articles of incorporation, are:

First, "to provide and maintain a hospital for the suitable accommodation, nursing, medical and surgical treatment of such persons as may be in need of the same irrespective of sex, color, race or religious belief;" second, "to establish, maintain and conduct a school for the proper training of women as nurses."

By the articles of incorporation it was provided that the corporation should issue no shares of stock. At the time of said operation the said incorporators, Dr. F. H. Clark and Elizabeth P. Clark, had ceased to be members of the corporation, the said T. M. Aderhold having succeeded them therein. Dr. Hatchett had been president of the corporation from the beginning, and was such president at the time of the operation. Dr. Aderhold was its secretary. Aside from being a training school for nurses, the El Reno Sanitarium was a general hospital. It provided all modern instruments of surgery, operating room, skilled nurses, requisite to the treatment of patients for disease, and for surgical operations, except that it had no medical staff, and provided neither physicians nor surgeons.

The plaintiff alleged in her petition that the defendants were each practicing physicians and surgeons, doing business as "the El Reno Sanitarim, at El Reno, in Canadian county, Okl.," and contracted with her to perform an operation upon her for the removal of a goiter, and that while engaged in performing the operation they so negligently and unskillfully performed said operation that plaintiff's feet and ankles were scalded and burned, to her damage in the sum of $25,240.00.

The defendants answered by a general denial, and alleged further that plaintiff's alleged injury was in no manner due to their negligence or to the negligence of their servants or assistants.

The cause was tried on the 19th and 20th of May, 1920, resulting in a verdict by the jury for the plaintiff in the sum of $12,620. Motion for a new trial was filed and overruled, and the defendants bring the cause regularly on appeal to this court, and complain: First, that the trial court erred in overruling their demurrer to the evidence interposed at the close of plaintiff's case and in overruling their motion for a directed verdict at the close of all the evidence; second, in giving certain instructions to the jury and in refusing to give certain instructions requested by the defendants; third, in refusing to grant a new trial because of the misconduct of plaintiff's attorney and an abuse of discretion on the part of the trial court by which the defendants were prevented from having a fair trial; fourth, in admitting certain evidence for plaintiff over the objections of the defendants and in refusing to admit certain evidence offered by the defendants; fifth, because the damages allowed by the jury were excessive and given under the influence of prejudice and passion. There is no substantial conflict in the evidence.

Plaintiff was a school teacher, and resided at Anadarko, in Caddo county, Okl. She was suffering from a goiter or an enlargement of the thyroid gland. Dr. W. W. Kerley, residing at Anadarko, was and had for some time been her physician. The defendants, Dr. Hatchett and Dr. Aderhold, were partners engaged in the general practice of medicine and surgery at El Reno, Okl. As individuals, but not as a partnership, they were officers and directors of the El Reno Sanitarium, and practically owned said corporation. As a partnership they had no management or control of the corporation, but solely by virtue of being officers in said corporation they employed and discharged the nurses and other hospital attendants. In their partnership business as physicians and surgeons they in no way served said corporation and the corporation in no way served them.

The plaintiff's regular physician, Dr. Kerley, had long been acquainted with the El Reno Sanitarium and Training School for Nurses, and with the defendants, Dr. Hatchett and Dr. Aderhold. Dr. Kerley recommended that the plaintiff go to the El Reno Sanitarium, and that she employ the defendants to perform the operation. Representing the plaintiff, Dr. Kerley arranged, in a conversation over the telephone, with Dr. Hatchett and Dr. Aderhold to perform the operation. Plaintiff had no conversation or consultation with the defendants, or either of them, concerning the arrangement made by Dr. Kerley prior to the operation.

As recommended by Dr. Kerley, the plaintiff went to the El Reno Sanitarium, was given a room in the hospital, and she paid a hospital fee of $45 in advance. There is no evidence that plaintiff made any contract with the defendants concerning the El Reno Sanitarium, or for any service which the El Reno Sanitarium should perform in connection with her operation the contract being a simple engagement by the defendants to perform on plaintiff an operation for the removal of a goiter. When the time arrived for the performance of the operation Dr. Hatchett and Dr. Aderhold were...