Jackson v. Joyner
| Citation | 236 N.C. 259,72 S.E.2d 589 |
| Decision Date | 08 October 1952 |
| Docket Number | No. 93,93 |
| Parties | JACKSON, v. JOYNER. |
| Court | United States State Supreme Court of North Carolina |
W. W. Candler, Don C. Young, and Cecil C. Jackson, Asheville, for plaintiff, appellant.
Harkins, Van Winkle, Walton & Buck, Asheville, for defendant, appellee.
The plaintiff challenges the correctness of these instructions:
These instructions in effect withdrew from the jury the question of negligence of Dr. Joyner based on the conduct of nurse Hanson.
The record discloses that the child's mother in arranging for the operation contacted and engaged only Dr. Joyner. He in turn, after demurring to the mother's suggestion that her family physician be engaged to give the anaesthetic, arranged for the help and assistance of the nurses, including nurse Hanson, who administered the anaesthetic.
On this record the evidence is sufficient to justify the inference that during the time the child was being prepared for the operation and while the operation was in progress, Dr. Joyner, as surgeon in charge, had full power of control over the nurses, including nurse Hanson, so as to make him responsible for the way and manner in which the anaesthetic was administered by Hanson.
And when a surgeon occupies such position, his duties and liabilities respecting supervision and control over the administration of the anaesthetic are substantially the same as those respecting the other phases of the operation and his treatment of the patient generally; that is, he is bound to exercise such reasonable care and skill respecting the administration of the anaesthetic as is usually exercised by average physicians and surgeons of good standing in the same community. 41 Am. Jur., Physicians and Surgeons, Sec. 95. See also Jackson v. Mountain Sanitarium & Asheville Agriculture School, 234 N.C. 222, 67 S.E.2d 57; Nash v. Royster, 189 N.C. 408, 127 S.E. 356.
It is true Hanson was in the general employ of the hospital; nevertheless, on this record it is inferable that he stood in the position of a lent servant who for the purpose and duration of the operation occupied the position of servant of Dr. Joyner. 35 Am.Jur., Master and Servant, Sec. 18. And the rule is that where a servant has two masters, a general and special one, the latter, if having the power of immediate direction and control, is the one responsible for the servant's negligence. 35 Am.Jur., Master and Servant, Sec. 541. See also Hodge v. McGuire, 235 N.C. 132, 69 S.E.2d 227, 229; Hayes v. Board of Trustees of Elon College, 224 N.C. 11, 15, 29 S.E.2d 137. The power of control is the test of liability under the doctrine of respondeat superior. 35 Am.Jur., Master and Servant, Sec, 539.
It would seem from what we have said that the challenged instructions must be held for error in eliminating from the case the doctrine of respondeat superior.
The defendant seeks to sustain the instructions as given on the theory that the nonsuit as to Hanson, affirmed on former appeal on authority of Byrd v. Marion General Hospital, 202 N.C. 337, 162 S.E. 738, relieves Dr. Joyner from liability for any act or omission connected with the conduct of nurse Hanson in administering the anaesthetic, and such is urged to be the law of the case.
The contention would seem to be without merit, but it calls for an analysis of the decision in Byrd v. Marion General Hospital, supra. There, the action was against the lessee of a hospital and a staff nurse. The attending physician was not sued. The evidence disclosed that the alleged acts of negligence of the nurse were committed in administering a heat treatment to a patient while the physician in charge was standing by directing the mode of treatment and impliedly approving the treatment as given by the nurse. The treatment was not obviously or inherently dangerous. It was there held that the nurse was justified in assuming that the treatment, administered in the presence of the physician, was proper under the circumstances, and it was further held that the treatment so administered was deemed the treatment of the physician and not of the nurse, and that nonsuit should have been allowed.
In short, Byrd v. Marion General Hospital, supra, holds that as between patient and nurse, the nurse who follows the orders of the physician or surgeon in charge is not ordinarily liable if injury results from the treatment as prescribed. But nothing is said in the Byrd case to justify the contention that exoneration of the nurse, ipso facto, immunizes the physician in charge.
On the contrary, the rationale of the decision in the Byrd case is, not that nonsuit as to the nurse immunizes the physician, but rather, if the acts and omissions complained of be negligent, they then are referable and imputable to the true author thereof, the physician who directed or suffered the negligent conduct through the instrumentality of an agent under his control, and that therefore the physician alone is responsible and liable therefor.
Further, it is to be observed that the principle announced in the Byrd case stands as an exception to the general rule that an agent who does a tortuous act is not relieved from liability by the fact that he acted at the command or under the direction of his principal. 2 Am. Jur., Agency, Sections 324 and 326.
But be that as it may, the decision on former appeal, based...
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Harris v. Miller
...to test the liability of a surgeon for the negligence of operating room personnel under the borrowed servant rule: in Jackson v. Joyner, 236 N.C. 259, 72 S.E.2d 589 (1952), and later in Starnes v. Hospital Authority, 28 N.C.App. 418, 221 S.E.2d 733 (1976). In Jackson, plaintiff's intestate,......
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Shumaker v. US
...46. 9 In light of CFMC's lack of control the loaned servant theory argued by Plaintiffs is not applicable. See Jackson v. Joyner, 236 N.C. 259, 261, 72 S.E.2d 589, 591 (1952). Nor does the holding in Cahill v. HCA Management Co., 812 F.2d 170 (4th Cir.1987), help Plaintiffs' case because HC......
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Connette v. Charlotte-Mecklenburg Hosp. Auth.
...application of the Byrd approach in the resolution of Harris . The seminal case on the issue presented in Harris — Jackson v. Joyner , 236 N.C. 259, 72 S.E.2d 589 (1952)1 —had given rise to a judicially created "presumption that the surgeon in charge controls all operating room personnel," ......
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Voss v. Bridwell
...the law means it. Restatement, Agency 2d, § 220, [1958]; and Yorston v. Pennell, 1959, 397 Pa. 28, 39, 153 A.2d 255. In Jackson v. Joyner, 236 N.C. 259, 72 S.E.2d 589, a physician performing an operation selected and arranged for the help of an aneathetist employed by a hospital and had ful......