Hyrne v. Erwin
| Decision Date | 15 July 1885 |
| Citation | 23 S.C. 226 |
| Parties | HYRNE v. ERWIN. |
| Court | South Carolina Supreme Court |
1. Partners in the practice of medicine are all liable for an injury to a patient resulting from the negligence, either of omission or commission, of any one of the partners within the scope of their partnership business; but for an injury resulting from the act of one partner outside of the common business, the offending partner is alone responsible. The subject of the liability of partners generally considered.
2. There is no error in charging a jury that partners in the practice of medicine are sureties for the proper and faithful performance of their engagements by each of them.
3. The judgment of the Circuit Court on a motion for a new trial in a case at law, is final as to all questions of fact involved in the motion; for alleged errors of law therein involved, an appeal lies.
4. A point not brought to the attention of the judge below by request to charge, and not ruled upon, not considered here.
Before WALLACE, J., Barnwell, November, 1883.
This was an action by E. W. Hyrne against J. D. Erwin and C. W Erwin, partners in the practice of medicine, commenced in December, 1882, to recover $5,000, damages for negligent and unskilful conduct in the setting and treatment of plaintiff's broken arm. The testimony shows that the arm was set on the night of December 6, 1881, by Dr. C. W. Erwin who visited the patient again the next day, but not afterwards until December 10, when sent for, and again the next day, when he took his father, Dr. J. D. Erwin, with him who then, for the first time, saw the plaintiff. The negligence alleged was in the treatment of the plaintiff's arm by the younger Erwin, before his father was called in, and in the failure to visit between the 7th and 10th of December.
The testimony for the plaintiff tended to show negligence by Dr. C. W. Erwin on these occasions; the testimony for the defendant tended to show that the surgeon had done all that approved practice required.
The opinion of this court states all of the charge that is furnished in the Brief. The exceptions are sufficiently stated in the opinion.
Mr. Robert Aldrich , for appellant.
Mr. J. J. Brown , contra.
The appellants, father and son, are partners in the practice of medicine in Barnwell County. In December, 1881, the plaintiff had his arm broken by the falling of his horse, and the defendants were called in. Both attended in the first instance, but the case was principally managed afterwards by Dr. C. W. Erwin, the son, both, however, attending occasionally.[1] The plaintiff alleged that the attention given was so negligent and unskilful that he lost the use of his arm; that he is no longer able to engage in his accustomed pursuits; that he has been, and still is, disabled from attending to his ordinary business, whereby he has heretofore obtained support and maintenance for himself and family, to his damage $5,000. The case was heard by Judge Wallace and resulted in a verdict of $1,000 for the plaintiff. The appeal assigns error to the presiding judge at two stages of the case: the first involves his charge to the jury, and the second his refusal to grant a new trial on motion made on the minutes of the court after verdict.
The portion of the charge excepted to was as follows: The judge said He further said: " That if the jury believed the plaintiff and his witnesses as they testified on the point of the setting of the arm by Dr. C. W. Erwin, and the plaintiff's complaint at the time that the bandages were too tight, the great swelling of the arm and the discoloration of the fingers the next day, the earnest request of the plaintiff and his wife to him to loosen the bandages, his refusal and leaving the patient in this condition, and not returning for several days, when mortification had ensued in consequence, then this made out a case of wanton injury, in which event the defendant, C. W. Erwin, alone would be liable."
When these two portions of the charge are considered together, the law laid down by the Circuit Judge seems to have been this, to wit, that when two or more physicians are practising their profession in partnership, reasonable care, diligence, and skill on the part of each in the performance of their duties is guaranteed by each and all of them, and if either fails to exercise such reasonable care, diligence, and skill in the management of a case entrusted to his care, resulting in damages, all will be responsible. If, however, a wanton case of mismanagement is made out against one alone, and damage result from this, the others would not be responsible. Was this error? Certainly not such an error, if any, as to give cause of complaint to either of the defendants. It did no harm to the younger Dr. C. W. Erwin, and it opened a door of escape for the elder Dr. J. D. Erwin, to which, according to strict law, it may be, he was not entitled.
The law applicable to such cases, as we understand it, is the same as that which obtains in the general doctrine of agency; it applies, too, in the relation of master and servant, and like cases. It is this: In a partnership the parties associated are, in one sense, agents of each other, and the act of one within the scope of the partnership or business is the act of each and all, as fully so as if each was present and participating in all that is done. And each guarantees that within the scope of the common...
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