Donald v. Swann

• Decision Date: 16 June 1931
• Docket Number: 6 Div. 906.
• Citation: 24 Ala.App. 463,137 So. 178
• Parties: DONALD v. SWANN.
• Court: Alabama Court of Appeals

137 So. 178

24 Ala.App. 463

DONALD v. SWANN.

6 Div. 906.

Court of Appeals of Alabama

June 16, 1931

Rehearing Denied Aug. 4, 1931.

Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.

Action for trespass to person by Ruthie Catherine Swann against D C. Donald and another. From a judgment for plaintiff, the named defendant appeals.

Reversed and remanded.

Certiorari denied by Supreme Court in Donald v. Swann (6 Div 999) 137 So. 181.

Respondeat superior doctrine held not applicable to action for unauthorized operation on theory operation constituted trespass.

The following charges were refused to defendant:

D. "I charge you, gentlemen, that if you are reasonably satisfied, from the evidence in this case, that plaintiff was suffering with pernicious anemia when she came under Dr Donald's care, and that she presented herself to him for diagnosis, treatment and care, then, gentlemen, Dr. Donald was authorized to use the ordinary and usual methods of diagnosing, treating and caring for said patient, which are ordinarily used by physicians and surgeons in this community, and in so doing there was no trespass on the person of the plaintiff."

I. "I charge you, gentlemen of the jury, that proof that goes no further than to show that the injury could have occurred in the way alleged, does not warrant the conclusion that it did so occur."

J. "I charge you, gentlemen of the jury, that if plaintiff's ailments as complained of could, with as reasonable probability, be attributed to the pernicious anemia with which she was suffering at the time she entered the hospital, and the previous injury to her back, then, gentlemen, you cannot find a verdict for the plaintiff."

X. "I charge you, gentlemen, under the undisputed evidence in this case, plaintiff suffered no permanent injury from the spinal puncture."

Coleman, Coleman, Spain & Stewart, of Birmingham, for appellant.

Harsh & Harsh, of Birmingham, for appellee.

SAMFORD J.

The action was in two counts and against two defendants, to wit, the Birmingham Baptist Hospital and Dr. D. C. Donald, this appellant. The first count charged malpractice, and the second a trespass to the person, as will hereinafter appear. The first count was charged out, and the affirmative charge was given on the second count as to the hospital, leaving a charge against Dr. Donald, this appellant, of trespass to the person, in that he by himself or agent extracted or attempted to extract fluid from the spinal column of plaintiff over plaintiff's objection and against her will, from which she suffered damage, etc. The operation of puncturing the spinal column of plaintiff was not performed by this defendant, but by another surgeon, at his request or instigation. This created Dr. Collier (the doctor performing the operation) the agent of this defendant in the doing of the act complained of. If, therefore, the act was a trespass to plaintiff's person, it was participated in by this defendant. Dr. Collier was simply carrying out the instructions of this defendant to do a certain act. If the act was unauthorized and done against the will and over the protest of plaintiff, it would be an assault and battery or trespass to the person, for which an action would lie equally against Dr. Collier, who actually committed the assault, and this defendant, who directed it to be done. 5 Corpus Juris, 626 (13).

The doctrine of respondeat superior is not here involved. The distinction lies in the fundamental difference between an action for malpractice and an action for trespass to the person. Trespass to the person is an intentional act which is unlawful, while malpractice arises on account of negligence. Hershey v. Peake, 115 Kan. 562, 223 P. 1113.

It is laid down as a general rule, and supported by unquestioned authority, that every human being of adult years and sound mind has a right to determine what shall be done with his own body, and any operation performed, even by a surgeon acting in good faith, which is done without the consent and over the protest of the party operated on, is an assault and battery for which an action will lie. Hershey v. Peake, supra; Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92, 52 L. R. A. (N. S.) 505, Ann. Cas. 1915C, 581; Francis v. Brooks, 24 Ohio App. 136, 156 N.E. 609; Rolater v. Strain, 39 Okl. 572, 137 P. 96, 50 L. R. A. (N. S.) 880; Hively v. Higgs, 120 Or. 588, 253 P. 363, 53 A. L. R. 1052. We recognize the rule that a physician who sends a substitute, upon becoming unable to fill a professional engagement, is not answerable for the negligence or malpractice of the substitute as the same is stated and approved in Parsons v. Yolande, etc., C. Co., 206 Ala. 642, 91 So. 493; Moore v. Lee, 109 Tex. 391, 211 S.W. 214, 4 A. L. R. 185, and other cases cited by appellant; but as has been pointed out, the claim for negligence and malpractice has been eliminated from the case at bar and here rests upon the contention that Dr. Collier was the agent of defendant, in which event a different rule applies. Moore v. Lee, 109 Tex. 391, 211 S.W. 214, 4 A. L. R. 185; 48 Corpus Juris, 1130 (120).

The...