Moore v. Lee
| Decision Date | 16 April 1919 |
| Docket Number | (No. 2652.) |
| Citation | 211 S.W. 214 |
| Parties | MOORE v. LEE. |
| Court | Texas Supreme Court |
Thomas & Rhea and G. D. Hunt, all of Dallas, for plaintiff in error.
L. R. Callaway, of Dallas, for defendant in error.
This suit was brought by defendant in error, S. E. Lee, to recover damages of plaintiff in error, Dr. H. Leslie Moore, for an alleged breach by plaintiff in error of his contract to attend and treat the wife of defendant in error, during and after birth of a child, and for alleged malpractice on the wife, during her confinement, by Dr. A. D. Hardin, for whose acts and negligence, it was charged, plaintiff in error was liable. The plaintiff in error answered that he arranged for Dr. Hardin, who was a careful and skillful physician, to attend defendant in error's wife, during the childbirth, by express agreement with defendant in error, and that he was to be notified in the event any complications arose, but was never so notified, and that he had not violated his agreement with defendant in error.
The material facts proven were that plaintiff in error and defendant in error had entered into an agreement, whereby the wife of defendant in error was to have the services of plaintiff in error, as a physician, for an agreed fee, during the approaching confinement of the wife, who was visited and examined by defendant in error between 1 and 2 o'clock on the morning of February 6, 1911, and at that time plaintiff in error promised to return when needed. On account of the setting of a lawsuit against plaintiff in error and others, at Ft. Worth, for February 6, 1911, and pressing professional engagements, plaintiff in error concluded that he would not be able to return to Mrs. Lee. It was the custom among the reputable physicians of Dallas, where the parties resided, for a physician who determined that he could not meet all his engagements to send some other physician, and, about 8 o'clock on February 6, 1911, plaintiff in error telephoned Dr. Hardin that he might need him during that morning. Before 9. o'clock, defendant in error notified Dr. Moore that it was time for him to come to Mrs. Lee, when Dr. Moore replied that, because of important business, he would be unable to come, but he would send another physician, to which defendant in error responded with a request to send him in a hurry. Until about a quarter past 9 o'clock, there was another physician in the neighborhood of defendant in error, with whom defendant in error talked, without asking him to attend Mrs. Lee. After being requested by defendant in error to send another physician in a hurry, plaintiff in error telephoned to Dr. Hardin, whose general reputation in Dallas as a physician was good, saying that he had a case, to which he wanted to send him, that it was a partnership case, of which he expected to take care, and plaintiff in error requested Dr. Hardin to go out and look after the wife of defendant in error, and to notify him if he needed help or anything went wrong, whereupon he would either come himself or send assistance. Dr. Hardin reached the home of defendant in error about 10 o'clock and attended to the delivery of the child, and there was evidence to raise the issue of injury to Mrs. Lee through acts or negligence of Dr. Hardin. Defendant in error expressed no dissatisfaction to Dr. Hardin, at the time the child was delivered, and paid him on his second or third visit the full fee, which he testified he had agreed to pay plaintiff in error, and paid nothing to plaintiff in error.
A jury trial resulted in a verdict and judgment for plaintiff in error, which was reversed by the Court of Civil Appeals, and Section B of the Commission of Appeals recommended that the judgment of the Court of Civil Appeals be affirmed.
The trial court charged the jury that the law required the exercise of ordinary care by plaintiff in error in his personal attention to Mrs. Lee, and also required the exercise of ordinary care by plaintiff in error in the selection of another physician for her. The trial court refused requests to charge that any negligence or lack of skill on the part of Dr. Hardin, resulting in injury to Mrs. Lee, was chargeable to plaintiff in error, regardless of the care exercised by plaintiff in error in Dr. Hardin's selection.
The controlling question here is whether the action of the trial court was correct in giving and refusing these charges.
It is quite undeniable that defendant in error assented to plaintiff in error's own nonattendance on his wife. He admits that, when telephoned plaintiff in error's reasons for seeking to be released from treating his wife, his response was to urge haste in sending another physician. It is immaterial to the matter of plaintiff in error's liability for Dr. Hardin's negligence or lack of skill, under the issues joined herein, whether plaintiff in error represented Dr. Hardin to be his partner at the time he proposed sending him. No pleading was filed by defendant in error, alleging that Dr. Hardin was held out as plaintiff in error's partner, nor seeking to hold plaintiff in error liable as a partner with Dr. Hardin, nor seeking to recover any damages for any misrepresentation of Dr. Hardin's status as a partner. So the question is simply, What was plaintiff in error's duty, under the law, when defendant in error asked him to speedily dispatch another physician to treat Mrs. Lee? To our minds this question admits of no answer save that the duty of plaintiff in error was to exercise ordinary care in the selection of the physician to be sent, as the jury was instructed by the trial court.
The opinion in Texas Central Railroad Co. v. Zumwalt, 103 Tex. 607, 132 S. W. 113, 30 L. R. A. (N. S.) 1206, declared that where a railroad company furnished an employé with a physician, the railroad company would not be held liable for the physician's negligence, unless, in treating the employé, he was the agent of the railroad company. No more can plaintiff in error be held liable for Dr. Hardin's negligence or lack of skill, in the absence of facts to establish that Dr. Hardin was acting as the agent of plaintiff in error when he was treating defendant in error's wife.
From the very nature of the employment, the physician...
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