Mazer v. Lipshutz, 15447-15449.
Decision Date | 01 April 1966 |
Docket Number | No. 15447-15449.,15447-15449. |
Citation | 360 F.2d 275 |
Parties | Milton MAZER, Administrator of the Estate of Israel Abrams, Deceased, Appellant in No. 15448, v. Hattie LIPSHUTZ, Executrix of the Estate of Benjamin Lipshutz, Deceased, Appellant in No. 15447, v. Albert KOHN, Third-party Defendant, Appellant in No. 15449. |
Court | U.S. Court of Appeals — Third Circuit |
John B. Martin, Philadelphia, Pa., for defendant Lipschutz (Joseph B. Erwin, Duane, Morris & Heckscher, Philadelphia, Pa., on the brief), for appellant Lipshutz.
Harvey B. Levin, Philadelphia, Pa. (Robert M. Bernstein, Bernstein, Bernstein, Harrison & Kessler, Philadelphia, Pa., Lazarus & Levin, Philadelphia, Pa., on the brief), for plaintiff, Appellee in No. 15447, Appellant in No. 15448.
Before McLAUGHLIN, FORMAN and GANEY, Circuit Judges.
Rehearing Denied in Nos. 14458, 14459 May 10, 1966.
In this medical malpractice action the wrong type of blood was administered to plaintiff's decedent during the course of an operation upon him. In addition, one of two sponges left in the patient after the completion of the operation was never removed. At the first trial there were judgments in favor of the surgeon in charge, Dr. Lipshutz and the anesthesiologist, Dr. Chodoff. On appeal we reversed the judgment in favor of Dr. Lipshutz and ordered a new trial. We affirmed the judgment in favor of Dr. Chodoff. Mazer v. Lipshutz, 327 F.2d 42 (3 Cir. 1963), rehearing den. 1964. We held pp. 45, 46, We restricted the new trial to "Dr. Lipshutz's vicarious liability in relation to Kohn as delineated above." (p. 52). Kohn was the "head technician in charge of the hospital's blood bank," (p. 44). He was a third-party defendant.
At the second trial the jury found Dr. Lipshutz was vicariously liable for the negligence of Kohn and rendered a verdict in favor of the plaintiff and against the Estate of Dr. Lipshutz for $89,318 and for the same amount in favor of the Estate of Dr. Lipshutz and against Kohn. As in the first trial, a release and covenant not to sue by plaintiff releasing the hospital and its employees for a consideration of $60,000 had been put into evidence outside the hearing of the jury. On defense motions, the trial judge, taking into consideration the $60,000 paid by the hospital, reduced both judgments to $29,318. Plaintiff has appealed from the reduction of the amount of his judgment. The Lipshutz estate and Kohn have appealed from the order refusing to grant them judgments n. o. v.
The defense argument against plaintiff's judgment centers around the above mentioned release. We note that this affirmative defense was never pleaded on behalf of Lipshutz. Though this is a clear violation of Federal Rule of Civil Procedure 8(c) we do not find even a mention of it in the Lipshutz briefs. There was no objection to the admission of the release into evidence because of non compliance with Rule 8(c). The release was admitted into evidence. It was also in evidence at the first trial. Under the circumstances, the point on appeal that the failure to plead the release affirmatively forecloses the defense relying on it has no validity.
This brings us to the substantial question on the merits, namely, whether the release plaintiff gave the hospital merely reserved his rights against Dr. Lipshutz for any individual negligence on his part and so excluded vicarious liability of Dr. Lipshutz. The document in question is a Pennsylvania joint tort feasor release under the Contribution Among Tort Feasors Act of that Commonwealth (12 P.S. 2082-2089). It releases the hospital, its successors and assigns from all claims arising out of the injuries sustained by the plaintiff's decedent in the accident involved. Then follows in pertinent part the controverted paragraph:
The exact same issue was raised by the Lipshutz defense in the first appeal. In our opinion, after stating the facts, we held, Mazer v. Lipshutz, supra, p. 50:
"In view of the foregoing it follows that the jury under proper instructions would have been entitled to find Dr. Lipschutz, as the captain of the ship, vicariously liable for the administration of incompatible blood to Professor Abrams."
Later on in the opinion, pp. 54-55, we took up the defense contention that the release barred recovery by the plaintiff against Dr. Lipshutz for vicarious liability and said:
We find no justification for the defense position that the true meaning of the release is that it only excludes what is designated as "individual negligence" of Dr. Lipshutz. The latter has been found to be a principal in the operating room, the captain of the operating ship. As such he then, just as much as the hospital, was a primary tort-feasor. Kohn was an employee of the hospital. Kohn, during the operation, was also a subordinate of Dr. Lipshutz who was in charge of the operation. The release to the hospital, its agents and employees on its face did not release Kohn as a vitally important aid of the surgeon in the latter's overall performance of the operation. The hospital was not a party to the Lipshutz suit. There is no judicial finding anywhere in the litigation that Kohn during the operation was acting as an agent of the hospital. The exclusion from the release of plaintiff's rights against Dr. Lipshutz contains no restriction whatsoever. It protects plaintiff's "claims against Dr. Benjamin Lipshutz * * * on account of the accident, injuries and damages sustained by us at the time and place above mentioned." (Emphasis supplied). All liability of Dr. Lipshutz is clearly included in that unambiguous language. To say that it wiped out the doctor's responsibility for the conduct and acts of his technical assistants merely because they were also employees of the hospital is to misread the release itself and all of the pertinent facts. Pennsylvania law which governs upholds the sound doctrine that a servant may have two masters at one time. McConnell v. Williams, 361 Pa. 355, 361, 65 A.2d 243 (1949) dealt with a surgical operation with collateral negligence by a hospital intern who was assisting the surgeon in charge at the latter's request. The court held that the intern "* * * thereby became — or at least so a jury might find — his temporary servant for the purpose for which he was engaged". To the same effect Restatement of Agency § 226, Siidekum v. Animal Rescue League, 353 Pa. 408, 45 A.2d 59 (1946). Beyond doubt the release here did not release the principal Lipshutz from any of his responsibility arising out of the operative procedure. The hospital employee Kohn was functioning as the agent of the operating surgeon during the critical period. The negligence of which he was found guilty at that time was properly attributed to his superior, Dr. Lipshutz.
We have examined appellant's other specific points on this question. They are without merit and need no discussion.
The remaining problem before us concerns the reduction by the trial judge of plaintiff's verdict against the defendant Lipshutz from $89,318 to $29,318. The judge, on application...
To continue reading
Request your trial-
Griffin v. U.S.
...tortfeasor status, the benefit of the settlement inures to the plaintiff. This court has applied the Pennsylvania rule in Mazer v. Lipshutz, 360 F.2d 275 (3d Cir. 1966), where in a medical malpractice action against a surgeon we reverse the district court's reduction of plaintiff's verdict ......
-
Bonar v. Hopkins
...R. Co., 351 Pa. 60, 40 A.2d 89 (1944); Wilbert v. Pittsburgh Consolidation Coal Co., 385 Pa. 149, 122 A.2d 406 (1956); Mazer v. Lipshutz, 360 F.2d 275 (3 Cir. 1966). In a number of these precedents, the terms of the release are not reported in the opinions. However, from the Court's treatme......
-
Gentry v. Wilmington Trust Company
...the costs of settlement and plaintiffs' total damages, a different result might be essential to avoid injustice. But cf. Mazer v. Lipshutz, 360 F. 2d 275 (3d Cir. 1966). But it is the law of Delaware that unless the release provides for reduction in a greater amount, the claims of the injur......
-
Mangum v. Surles, 7
...but evidence of it considered); United States Fidelity & Guaranty Co. v. United States, 389 F.2d 697 (10th Cir. 1968); Mazer v. Lipshutz, 360 F.2d 275 (3d Cir. 1966) (although release given by plaintiff to an alleged joint feasor not pled, evidence considered and case decided on merits); Za......