Morey v. Thybo

• Decision Date: 23 April 1912
• Docket Number: 1,849.
• Citation: 199 F. 760
• Parties: MOREY v. THYBO.
• Court: U.S. Court of Appeals — Seventh Circuit

199 F. 760

MOREY v. THYBO.

No. 1,849.

United States Court of Appeals, Seventh Circuit.

April 23, 1912

Chris P. Ellerbe, Linn R. Brokaw, and Dan McGlynn, for plaintiff in error.

Frank F. Noleman, June C. Smith, and William F. Bundy, for defendant in error.

Before BAKER, KOHLSAAT, and MACK, Circuit Judges.

BAKER Circuit Judge.

Morey plaintiff in error, a physician and surgeon, seeks to reverse a judgment against him for malpractice.

Three counts were in the declaration. Two were broad enough to cover every act of Morey's throughout the case. In the third, Mrs. Thybo alleged that Morey, 'together with one Rice, another physician and surgeon whom the defendant then and there called in to assist him and for consultation, ' negligently tore and lacerated her vagina and uterus in delivering her of a child, failed to remove all of the afterbirth, and used unsterilized instruments, in consequence of which blood poisoning developed.

At the close of the evidence Morey asked for a directed verdict and separately moved that the third count be withdrawn from the jury.

Undisputed facts are that Morey alone was first employed; that from June 5th, when the amniotic sac broke, until 10 p.m. of June 11th Morey was in sole charge; that Morey had no business relation, or even acquaintance, with Rice; that Mrs. Thybo and Rice were oldtime friends; that in the afternoon of the 11th Mr. Thybo, the husband, telephoned to Rice to come from St. Louis to the Thybo home at Vandalia, Ill.; that after Rice's arrival at 10 p.m. he concluded from his examination that delivery was impossible without the use of instruments; that, by agreement of Rice and Morey, Rice was to use the instruments and Morey to administer the anaesthetic; that this division of service was known to Mrs. Thybo and her husband and not objected to; that deliveries of the child and of the placenta, Morey and Rice each doing his part, were effected during the early hours of the 12th; that Morey left at 2 a.m., and Rice returned to St. Louis at 4 a.m.; and that subsequent treatment was by Morey.

Throughout the giving of testimony it clearly appears that Morey was contending, first, that his own conduct, both before Rice came in, and after Rice had left, and also while Rice was present, was without fault; and, second, that he was in no wise responsible for any of Rice's malpractices. Inasmuch as every act of Morey's for which he would be immediately responsible was within the first two counts, the question presented by the motion to ignore the third count was whether, under all the evidence, there was any legal basis for charging Morey with Rice's acts or omissions.

If the pleader meant to hold Morey on the principle of respondeat superior, the above-recited facts show that the attempt was vain. Rice's only contractual relation was with the Thybos.

Two physicians, independently engaged by the patient and serving together by mutual consent, necessarily have the right, in the absence of instructions to the contrary, to make such a division of service as in their honest judgment the circumstances may require. Each must not only bring to the case the ordinary knowledge and skill of the profession, but also give his best personal attention and care. Harris v....