Barnes v. Mitchell

• Decision Date: 29 November 1954
• Docket Number: No. 54,54
• Parties: George O. BARNES, Plaintiff and Appellant, v. L. D. MITCHELL, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 208

67 N.W.2d 208

341 Mich. 7

George O. BARNES, Plaintiff and Appellant, v. L. D. MITCHELL, Defendant and Appellee.

No. 54.

Supreme Court of Michigan.

Nov. 29, 1954.

Homer Arnett, Kalamazoo, for appellant.

Leonard J. Weiner, Three Rivers, Roy H. Hagerman, Sturgis, for appellee.

Before the Entire Bench.

KELLY, Justice.

Defendant, a chiropractor, operates a clinic at Three Rivers, Michigan. Plaintiff started his suit claiming that both of his hands were severely burned as a result of an X-ray treatment he received at defendant's clinic on October 6, 1948. This appeal is taken from the court's judgment for the defendant notwithstanding the jury's verdict of $3,500 for the plaintiff.

Plaintiff did not go to defendant for treatment of his hands but for a back ailment. Plaintiff testified that every winter he would get 'weather cracks' in his hands because as a wood pattern worker he had to work with wood, resin and tar. Defendant noticed this condition and convinced plaintiff he could cure his hands at the same time he gave him treatments for his back. Defendant, testifying as to the condition of the hands, said that plaintiff had an allergy, eczema.

Defendant testified he treated plaintiff's back ailment by massage and diathermy, using an 'electrical instrument that generates heat,' and stated: 'I gave adjustment, massage to him and my assistant gave the diathermy and that part of it.' Plaintiff had appointments at the clinic three times a week, but he received X-ray treatments for his hands every second or third appointment. Defendant gave plaintiff's hands five X-ray treatments previous to October 6, 1948.

Defendant had two employees at his clinic, Velda Parks and Bonnie Esterbrook. They are referred to as nurses in the briefs but the record does not disclose the nature or extent of their training or whether they were registered nurses.

When plaintiff kept his appointment on October 6, 1948, he was advised by Velda Parks that "Bonnie has forgot about you and gone home, she is supposed to give you your treatment, I will call her back." Bonnie Esterbrook came back to the clinic in response to Velda Parks' call, and while she was giving the X-ray treatment to plaintiff's hands a muffled explosion was heard. Plaintiff testified that on his way home his hands commenced to burn, that he could smell burned flesh, and that his hands were all red when he arrived home. On his next regular appointment at the clinic, three days later, plaintiff showed his hands to defendant, stating he thought he had had too strong a treatment. Defendant said: "My goodness, your hands are burned. * * * I am glad the tube burst because if it had not burst, you would not have any hands."

Both Dr. Grekin, an expert witness in skin treatment and use of X-ray, and Dr. Hildreth, a specialist in X-ray and radiology, testified, and the record is convincing that plaintiff suffered X-ray burns from an overdosage of X-ray; that the palms of both hands were burned to such an extent that not only will the injury be permanent but will the danger that the X-ray dermatitis will break down into cancer.

Defendant was called to the stand by plaintiff for cross-examination under the statute. He did not attempt to explain or defend the actions of his employee Bonnie Esterbrook. He stated he was in Ohio on October 6, 1948; that he had never authorized her to give the plaintiff the X-ray treatment, nor had she ever given plaintiff a treatment previous to October 6th. Defendant testified that when he returned from Cleveland to his clinic he found the tube of his X-ray machine burned out.

The trial court in his opinion stated: 'Neither Velda Parks nor Bonnie Esterbrook were parties defendant, nor were either of them called as witnesses in this case by either party, so we do not have the benefit of their testimony. It is not known whether they were available or not.'

Defendant answers plaintiff's claim of negligence by merely saying that he never authorized his employee Bonnie Esterbrook to use the X-ray. Defendant did not testify that he cautioned her against using the X-ray machine or forbade her its use and admits that previous to October 6th she used electrical instruments generating heat to give diathermy treatments to plaintiff.

The court gave as his reason for rendering judgment notwithstanding the verdict that plaintiff failed to prove that it was the usual and customary practice for Bonnie Esterbrook to give X-ray treatments or that the treatment was given under the direction of the defendant.

There is nothing in the record that even allows speculation that Bonnie Esterbrook gave the treatment for her own profit or gain. As defendant's employee she was using defendant's clinic and X-ray machine to give a treatment to defendant's patient and there is every reason to conclude that she thought she was furthering her employer's interest in so doing. There was sufficient evidence to sustain the jury's verdict that Bonnie Esterbrook was authorized to give the plaintiff the X-ray treatment. This Court has held: 'In considering a motion by defendant for a judgment non obstante veredicto, * * * the evidence must be viewed in the light most favorable to plaintiffs; the same considerations obtaining as upon a motion to direct a verdict.' Yacobian v. Vartanian (syllabus), 221 Mich. 25, 190 N.W. 641. But even though Bonnie Esterbrook was exceeding her authority in using the X-ray machine, that would not excuse defendant from negligence.

In Riley v. Roach, 168 Mich. 294, 134 N.W. 14, 19, 37 L.R.A.,N.S., 834, this Court defined the term 'in the * * * scope of his employment' as follows:

'The phrase 'in the course or scope of his employment or authority,' when used relative to the acts of a servant, means while engaged in the service of his master, or while about his master's business.'

In Chicago & N. W. Ry. Co. v. Bayfield, 37 Mich. 205, 212, it is stated:

'Nor do we think it follows that because Smith at the time was exceeding his authority, the company is not responsible for his action. It is in general no excuse to the employer that an injury which has occurred was caused by disobedience of his orders, whether they be express orders or implied orders. He assumes the risks of such disobedience when he puts the servant into his business; and the reasons for holding him responsible for the servant's conduct are the same whether the injury results from a failure to observe the master's directions, or from neglect of the ordinary precautions for which no specific directions are deemed necessary. It will be conceded that for a positive wrong beyond the scope of the master's business, intentionally or recklessly done, the master cannot be held responsible; this being very properly regarded as the personal trespass or tort of the servant himself. But when the wrong arises merely from an excess of authority, committed in furthering the master's interests, and the master receives the benefit of the act, if any, it is neither reasonable nor just that the liability should depend upon any question of the exact limits of the servant's authority. The master fixes these, and it is his duty to keep his servant, in what is done by him, within the limits fixed. An act in excess would still have the apparent sanction of his authority; the occasion for it would be furnished by the employment, and the injured party could not always be expected to know or be able to discover whether it was or was not without express sanction.'

In Loux v. Harris, 226 Mich. 315, 197 N.W. 494, 495, we said:

'The declaration charged defendant with liability as master of Wagner. Defendant admitted the relation, denied Wagner was acting within the scope of his employment, and had verdict in his favor, because Wagner disobeyed his instructions. Was the trial judge in error in directing a verdict for defendant? * * *

'This suit is an action by a third person against the owner of an automobile for a tort committed by a servant while about his master's business. The motor vehicle statute extends liability of an owner to cases other than master and servant where an injury is occasioned by the negligent operation of an automobile 'being driven by the express or implied consent or knowledge of such owner.' This, however, is a common-law action against a master for the negligence of his servant while about the master's business, and, in considering the legal questions, the statute relied upon in the court below must be laid entirely aside. An extended examination of text-books and case law upon the subject of liability of a master for torts of a servant discloses quite general agreement upon certain principles. Some of such principles will be mentioned for we intend to apply them. (Emphasis supplied)

'Selling gasoline was a part of defendant's business and, therefore, within the scope of Wagner's employment. Wagner violated instructions in taking the gasoline to the stranded renter of one of defendant's cars. In doing this was he about the business of defendant, or was his act a severance in and of itself of his relation to his master's business? Was he driving on his master's business? Certainly he was not driving on his own affair. Disobedience of how to handle business placed in his charge did not relieve the master. The liability of defendant depends upon whether Wagner, in taking gasoline to the renter of one of defendant's cars was acting within the scope of his employment.

'In Riley v. Roach, 168 Mich. 294, 307, 134 N.W. 14. 19, (37 L.R.A. [N.S.] 834), it was said:

"The phrase 'in the course or scope of his employment or authority,' when used relative to the acts of a servant, means while engaged in the service of his master, or while about his master's business.'

'See, also, Hartley v. Miller, 165 Mich. 115, 130 N.W. 336, 33 L.R.A. [N.S.] 81; Brinkman v. Zuckerman, 192 Mich. 624, 159 N.W. 316; Hill v. Haynes, 204 Mich. 536, 170 N.W. 685.

'Wagner was authorized to...