Mississippi Baptist Hospital v. Holmes, 38038

• Citation: 56 So.2d 709,214 Miss. 906
• Decision Date: 28 January 1952
• Docket Number: No. 38038,38038
• Parties: MISSISSIPPI BAPTIST HOSPITAL v. HOLMES et al.
• Court: Mississippi Supreme Court

Page 709

56 So.2d 709

214 Miss. 906

MISSISSIPPI BAPTIST HOSPITAL v. HOLMES et al.

No. 38038.

Supreme Court of Mississippi.

Jan. 28, 1952.

Watkins & Eager, Butler, Snow & O'Mara, Jackson, for appellant.

Barnett, Jones & Montgomery, Jackson, for appellees.

LEE, Justice.

The original opinion recognized that, prior to its rendition, a charitable institution in this State was liable for the negligence of its agents only when its governing authorities were guilty of negligence in the selection, employment or retention of such agents. Mississippi Baptist Hospital v. Moore, 156 Miss. 676, 126 So. 468, 67 A.L.R. 1116; Pace v. Methodist Hospital, Miss., 130 So. 468; and International Order of Twelve of Knights and Daughters of Tabor of Mississippi v. Barnes, 204 Miss. 333, 37 So.2d 487.

In the third and fourth paragraphs of that opinion, we also recognized that this cause was submitted to the jury in the trial court on the issues above stated, 'together with whether or not the technician was negligent and (if so whether) his negligent act was the proximate cause of the patient's death * * *'. It was admitted both by the pleadings and the proof that the technician was the employee of the defendant hospital at the time he performed the act complained of. We undertook to demonstrate that the act of the technician was a negligent one, and that such fact was not debatable. Under the facts therein set forth, it was also shown that the negligent act of the technician proximately caused, or contributed to, the death of the patient. The verdict of the jury necessarily involved a finding, (1) that the technician was employed by the defendant hospital, which fact was not in dispute; (2) that the act of the technician, in causing the wrong type of blood to be administered to the patient, constituted negligence; and, (3) that such act of negligence caused or contributed to the death of the patient--all as required by the doctrine of respondeat superior.

In the original opinion, we expressly overruled the Moore, Pace, and Barnes cases, supra, and held the defendant hospital to be liable under the doctrine of respondeat superior. The trial court had followed those cases in refusing to submit to the jury the count of the declaration which relied on the doctrine of respondeat superior. The jury was therefore instructed that unless the plaintiffs had shown by the preponderance of the evidence that the hospital failed to exercise reasonable care in the selection, employment or retention of the technician, and that the technician was negligent, and that his negligent act was the proximate or contributing cause of the patient's death, they should find for the hospital. Under the instructions, the jury had to believe that the technician was the employee of the hospital, that he was negligent, and that his negligence caused or contributed to the death of the patient. In other words, the jury was required to believe that all of the elements of liability under the doctrine of respondeat superior existed in connection with the injury and death, even though the instructions further required the plaintiffs to carry the additional burden of showing that the governing authorities of the defendant hospital had failed to exercise reasonable care in the selection, employment or retention of the technician involved.

But we are now asked to reverse and remand the case for a new trial in order to permit the jury to apply the 'new law'--liability under the doctrine of respondeat superior--which is announced in the overruling of the three cases hereinbefore mentioned, and we are asked to do this, notwithstanding that the jury on the former trial had found the facts to be such that the Court should apply the law of respondeat superior.

Appellant contends that the judgment of the lower court should be reversed, and a judgment entered for it here, because a peremptory was granted by the trial court as to count 5--respondeat superior--from which no cross-appeal was prosecuted, and that the original opinion held that the evidence was insufficient to make an issue for the jury on counts 1...