Nash v. Royster

• Decision Date: 08 April 1925
• Docket Number: 254.
• Parties: NASH v. ROYSTER.
• Court: North Carolina Supreme Court

127 S.E. 356

189 N.C. 408

NASH v. ROYSTER.

No. 254.

Supreme Court of North Carolina

April 8, 1925

Appeal from Superior Court, Wake County; Horton, Judge.

Action by Mary White Nash against Hubert A. Royster. Judgment for plaintiff, and defendant appeals, assigning errors. New trial ordered.

Civil action for damages tried upon issues raised by the pleadings on allegations and denials that plaintiff suffered great injury by reason of the defendant's negligence in failing properly to care for her after an operation, affecting her left knee, which, she alleges, resulted in purulent arthritis, described as "a very fatal disease."

From a verdict and judgment in favor of the plaintiff, the defendant appeals, assigning errors.

Negligence for jury on conflicting evidence.

Physician's agency question for jury.

Albert L. Cox and R. N. Simms, both of Raleigh, R. B. White, of Wake Forest, E. H. Malone, of Louisburg, and A. L. Purrington Jr., of Scotland Neck, for appellant.

W. H Yarborough, Jr., and Ben. T. Holden, both of Louisburg, and J. W. Bailey, of Raleigh, for appellee.

STACY C.J.

The exception addressed to the refusal of the court to grant the defendant's motion for judgment as of nonsuit, made first at the close of the plaintiff's evidence, and renewed at the close of all the evidence, needs no particular elaboration. The first exception has been waived, under the express provisions of the statute. C. S. 567. The defendant had the right to rely on the weakness of the plaintiff's evidence when she rested her case; but, having elected to offer testimony in his own behalf, he did so cum onere, and only the exception noted at the close of all the evidence may now be urged or considered. Harper v. Supply Co., 184 N.C. 204, 114 S.E. 173.

It is the settled rule of practice and the accepted position in this jurisdiction that, on a motion to nonsuit, the evidence which makes for the plaintiff's claim and tends to support her cause of action, whether offered by the plaintiff or elicited from the defendant's witnesses, will be taken and considered in its most favorable light for the plaintiff and she is "entitled to the benefit of every reasonable intendment upon the evidence, and every reasonable inference to be drawn therefrom." Christman v. Hilliard, 167 N.C. 6, 82 S.E. 950; Oil Co. v. Hunt, 187 N.C. 159, 121 S.E. 184; Davis v. Long, 189 N.C. 131, 126 S.E. 321.

In the present case, the evidence is conflicting on the main issue as to whether plaintiff received proper care and attention from defendant under the circumstances. This makes it a question for the jury. Loggins v. Utilities Co., 181 N.C. 221, 106 S.E. 822. We deem it unnecessary to set out the testimony of the several witnesses in detail. It is somewhat voluminous, and, to state it fairly, would require a recital of practically all of it. Hence a statement of only such portions as are pertinent and decisive of the legal questions involved will be undertaken.

There was evidence to the effect that on August 12, 1921, the plaintiff, a girl about 15 years of age, was brought by her parents, at the suggestion of their family physician, from Franklin county, N. C., where they live, to Rex Hospital in the city of Raleigh and placed under the care of Dr. H. A. Royster for treatment. She was suffering, at the time, from inflammation and swelling above her left knee. The swelling continued to increase until pus manifested itself in a "head," from two to two and one-half inches above the kneejoint, and on August 21, the defendant made an incision on the inside of plaintiff's thigh, removed the pus, and put in a small drain. That night the defendant left Raleigh for Rochester, Minn., to attend one of the Mayo clinics, and was gone for about two weeks. In the meantime, plaintiff's condition grew worse, the kneejoint became affected, and on August 29 a second operation was performed by Drs. Wilkerson and Thompson; the latter being called in for consultation by the former, though plaintiff's father testified that he employed Dr. Thompson independently of any other arrangement. This operation was for purulent arthritis, described as "a very fatal disease." In answer to a question as to whether plaintiff's condition was rendered worse by the delay in performing the second operation, Dr. Thompson said: "I think, of course, it would have been better earlier, but you could not do it until you knew that it had to be done." He further stated that he thought the proper course of treatment had been pursued by Dr. Royster.

The plaintiff left Rex Hospital on September 19, 1921, and was carried to a hospital in Rock Hill, S. C., where she could be treated by her uncle, Dr. Lyle. She is lame, and now has a stiff kneejoint, due to the infection which had lodged there, and she also has what is termed by the medical profession a weight-bearing leg.

There was evidence from the defendant tending to show that, after the operation on August 21, he had a talk with plaintiff's parents, Mr. and Mrs. Nash, in the presence of Drs. Wilkerson and Lawrence, in which he informed them of his intention to leave town. The defendant told them that the plaintiff had responded well to the operation; that there was no immediate cause for alarm; and that Dr. Wilkerson, a skillful and competent surgeon, would look after the patient while he was away. No objection was interposed to this arrangement. Dr. Wilkerson and Dr. Lawrence corroborated these statements in their testimony, but they were denied by the plaintiff's evidence.

It was further in evidence that the results obtained by plaintiff from the treatment received were as good as could be expected. Hence it was contended on behalf of the defendant that no damage had been proved, and that no act of his had been shown to have proximately resulted in injury to the plaintiff.

Damages were awarded by the jury on the theory that the defendant had negligently left the case, which resulted in injury to the plaintiff, or that Dr. Wilkerson negligently delayed the second operation, thereby producing harmful results, for which the defendant was held responsible under the following portion of his honor's charge:

"If the jury find from the greater weight of the evidence that upon leaving after the first operation on Miss Nash for a two-weeks' absence Dr. Royster, without consent of plaintiff or her parents, put Dr. Wilkerson in charge of her, this would constitute Dr. Wilkerson as Dr. Royster's agent, and, if the jury should find from the greater weight of the evidence that Dr. Wilkerson failed to give Miss Nash in her condition such reasonable skill, care, and diligence as are ordinarily exercised by members of his profession in similar cases, such failure on Dr. Wilkerson's part would be imputed to Dr. Royster under the law of principal and agent, and a principal being liable for defaults and failures of his agent acting within the scope of his authority."

As to whether Dr. Wilkerson was the agent of Dr. Royster, in looking after the plaintiff's case, during the defendant's absence, was a question of fact to be determined by the jury; and we think the court erred in holding, as a matter of law, that the relation of principal and agent necessarily followed from what took place unless the arrangement had been consented to by the plaintiff or her parents. Neither the consent of the plaintiff or her parents, nor the lack of such, is perforce the determinating factor as to whether the relation of principal and agent existed between the defendant and Dr. Wilkerson. Agency could exist with the plaintiff's knowledge and consent as well as without it. This is not the test. Whether an agency in fact has been created is to be determined by the relations actually existing between the parties under their agreements or acts. 21 R. C. L. 819; 31 Cyc. 1215. The evidence is not very direct on this point. Apparently the question was not mooted on the trial until the judge referred to it in his charge. In this respect, we think the evidence of Dr. Anderson touching the subject of custom among local physicians, excluded on the hearing, was competent as bearing on the question of agency, or the relation existing between Drs. Royster and Wilkerson so far as it had to do with their treatment of the plaintiff's case.

By the clear weight of authority, a physician or surgeon who sends a substitute practitioner to treat a case, on becoming unable personally to fill a professional engagement, is not liable for the latter's negligence or malpractice, unless the substitute acts as his agent in performing the service, or due care is not exercised in selecting the substitute practitioner. Moore v. Lee, 109 Tex. 391, 211 S.W. 214, 4 A. L. R. 185; Gross v. Robinson, 203 Mo.App. 118, 218 S.W. 924; Mullins v. Du Vall, 25 Ga.App. 690, 104 S.E. 513; Stokes v. Long, 52 Mont. 470, 159 P. 28; Gillette v. Tucker, 67 Ohio St. 106, 65 N.E. 865, 93 Am. St. Rep. 639; Keller v. Lewis, 65 Ark. 578, 47 S.W. 755; Hitchcock v. Burgett, 38 Mich. 501; Myers v. Holborn, 58 N. J. Law, 193, 33 A. 389, 30 L. R. A. 345, 55 Am. St. Rep. 606; 21 R. C. L. 395.

It has been held that a physician or surgeon is responsible for the negligence or carelessness, which proximately results in injury to another, of his apprentice (Hancke v. Hooper 7 Car. & I. [Eng.] 81), of his agent (Landon v. Humphrey, 9 Conn. 209, 23 Am. Dec. 333), of his assistant (Tist v. Welker, 7 Ohio N. P. 472), of his partner (Hyrne v. Erwin, 23 S.C. 226, 55 Am. Rep. 15), of an associate under certain conditions (Stokes v. Long, supra), or of any one in his employ while acting in the scope of such employment. And there may be a distinction, depending on the character of the engagement, between sending a substitute practitioner to take...