Runyan v. Goodrum

• Decision Date: 21 February 1921
• Docket Number: 185
• Citation: 228 S.W. 397,147 Ark. 481
• Parties: RUNYAN v. GOODRUM
• Court: Arkansas Supreme Court

228 S.W. 397

147 Ark. 481

RUNYAN v. GOODRUM

No. 185

Supreme Court of Arkansas

February 21, 1921

Appeal from Lonoke Circuit Court; George W. Clark, Judge; reversed.

Judgment reversed and cause dismissed.

Buzbee Pugh & Harrison, for appellants.

1. It is well settled that a physician or surgeon may recommend or employ another physician or surgeon to treat a patient for him or assist him in treating a patient, and in the absence of negligence in such selection he will not be liable for the negligence or lack of skill of the physician or surgeon so recommended or employed by him. 30 L. R. A. 345; 65 Ark. 578; 132 Id. 18; L. R. A. 1918 C 132; 199 F. 760; 211 S.W. 214; 218 Id. 924.

2. It is also well established that a physician or surgeon may be liable for damages caused by the negligence or default of his employee or servant under his direction. 64 L. R. A. 969; 180 Mo. 322; 87 Ohio St. 401; 45 L. R. A. (N. S.) 640; 46 Id. 611; 239 Pa.St. 351. The liability of appellants is governed by the rule laid down with reference to the employment by a physician or surgeon of another physician or surgeon rather than by the rule established in reference to the employment of a nurse or similar assistant, but the court declined to adopt our theory and hence this appeal, as the court refused to give the instructions requested, which was error. 30 L. R. A. 345; 65 Ark. 578.

Appellants were not liable for the negligence of Miss Green, if any there was. The relation of master and servant did not exist between appellants and Miss Green, and the doctrine of respondeat superior does not apply. One who employs a person who follows a distinct and independent occupation of his own is not responsible for the neglect or improper acts of the other. 98 Ark. 399; 51 Tex. 510; 211 S.W. 214; 2 Mich. 369.

X-ray work is a distinct and independent occupation and a profession, and appellants were not liable for the negligence of either Doctor McGill or Miss Green and the case should be reversed.

3. The verdict is outrageously excessive under the evidence, and the argument of counsel for appellee to the jury was prejudicial. 100 Ark. 526; 78 Id. 56; 92 Id. 569; 59 Id. 105; 58 Id. 454; 65 Id. 619; 70 Id. 179; 188 S.W. 838.

Lewis Rhoton and J. C. Goodrum, for appellee.

1. The complaint and amendments allege negligence on the part of Miss Green, the admitted agent, servant and employee of defendants, and that defendants were negligent in not using reasonable care in furnishing a reasonably safe x-ray machine. The evidence shows negligence for which appellants were responsible and the jury so found, and the verdict is sustained by the evidence and should not be disturbed.

2. The verdict is not excessive. 122 Ark. 305; 35 Id. 492; 278 S.W. 924; 2 Bingh. 156. This case is controlled by the principles announced in 208 S.W. 924; 108 Mo. 322; 45 L. R A. (N. S.) 640; 46 Id. 611. See, also, 106 Ark. 91. The instructions were really too favorable to appellants. Appellee was seriously and permanently injured, and appellants were clearly liable.

WOOD J. SMITH, J., dissenting.

OPINION

WOOD, J.

The appellee brought this action against the appellants to recover damages for personal injuries. She alleged in substance that the appellants were partners in the general practice of medicine and surgery; that they owned and operated St. Luke's Hospital in the city of Little Rock, Arkansas; that she became a patient of appellants and under the advice of appellant Kirby went to St. Luke's Hospital, where a Miss Green, an employee, servant and agent of appellants, made an exposure of appellee's body to an x-ray machine; that, through the negligence and ignorance of Miss Green in exposing the body of appellee to the x-ray machine for an unreasonable length of time in the morning and again in the afternoon of the 3d day of December, 1918, and again on the following day, she was seriously burned and permanently injured. Appellee also alleged that appellants permitted Miss Green to use an old and defective screen, which, in order to obtain proper reflection for fluoroscopic examination, required a current dangerous in strength and a dangerous and excessive length of time in making the exposure. Other acts of negligence were alleged, but all except the above were abandoned at the hearing. The appellee alleged that she had been damaged through the negligence of appellants as above set forth in the sum of $ 25 800, for which she prayed judgment.

The appellants answered, denying the allegations of the complaint. They set up that the injury resulted without any fault on the part of the operator and without any defect in the machine itself, and by reason of the uncontrollable nature of the x-rays.

Over the objection of appellants, the court gave instructions to the jury in which it was assumed that under the evidence the relation of master and servant existed between the appellants and Miss Green, and told the jury in effect that if they found that Miss Green was negligent in the use of the machine and that the injury to the appellee was the result of such negligence, the appellants were liable. The court further instructed the jury, over the objection of appellants, that appellants were liable if they failed to exercise ordinary care to furnish reasonably safe appliances, provided such failure was the proximate cause of the injury to the appellee. The appellants prayed the court to instruct the jury to the effect that if the appellants exercised ordinary care in employing Miss Green to operate the x-ray machine in question, they were not liable for her negligence, if she was negligent. Appellants also asked the court to tell the jury in effect that if the appellants failed to furnish a machine that was in good condition, and if such failure resulted in injury to the appellee, appellants would not be liable for such injury, provided they exercised that care which ordinarily prudent physicians and surgeons would have exercised in the circumstances. The court refused these prayers, to which the appellants duly excepted. The trial resulted in a judgment in favor of the appellee in the sum of $ 25,000, from which is this appeal.

1. The first question is, Did the relation of master and servant exist between the appellants and Miss Green? The facts concerning this are substantially as follows: The appellants are partners in the general practice of medicine and surgery. They maintain a hospital in the city of Little Rock, known as St. Luke's. At this hospital they have various departments, and among them a laboratory and x-ray department, which in December, 1918, was in charge of Dr. A. C. McGill, who was in the employ of the appellants as a specialist in laboratory and x-ray work. Doctor McGill was a graduate in medicine of Tulane University, and had made special preparation for x-ray work at Battle Creek, Michigan, and also at the Presbyterian Hospital, Chicago, Illinois. He had been doing the x-ray work at St. Luke's Hospital since 1913, and was an experienced and skillful operator of the x-ray machine, familiar with all of its parts and accessories. Appellants Kirby and Sheppard became associated with appellant Runyan about 1916 or 1917. Thereafter there was a great increase in the x-ray work at St. Luke's, and Miss Green was employed by appellants to assist Doctor McGill in that work. She began to work under Doctor McGill early in 1917, and continued for about two years, and was operating the x-ray machine at the time of the injury to appellee.

Concerning the qualifications of Miss Green as an x-ray specialist, Doctor McGill, a witness for the appellee, testified that she was as competent as he; that he had given her the same instructions that he had received. "She was very careful and very efficient and had x-rayed hundreds of patients," which he estimated all the way from six hundred to a thousand. She was not a graduate of medicine, but the testimony both for the appellants and for the appellee shows that this was not essential in order to make one an x-ray specialist. Doctor McGill testified that "one of the best x-ray men he knew of on the face of the earth was not a doctor." He referred to the person who operated the x-ray machine for the Mayos, "whose x-ray department was something enormous." Doctor Kirby testified that when he was pursuing his medical studies in St. Louis, the man in charge of the x-ray department in the St. Louis City Hospital, and who was considered one of the best x-ray men in that city, was not a doctor.

Doctor McGill testified that the x-ray business or profession is a distinct and separate profession from that of surgery; that "it is a true specialty, as much so as surgery." He and Doctor Bathurst, another witness for the appellee, testified that in the vicinity of Little Rock it is rather the rule than the exception that the x-ray work is done by some other person than the surgeon himself; that, while a few surgeons here do their own x-ray work, it is not the rule. The testimony of appellants Kirby and Runyan was to the same effect, and further that, with the amount of surgery done by them, it would be impossible for them to personally do their own x-ray work. Moreover, none of the appellants were x-ray specialists. They were entirely ignorant of x-ray work, and were wholly dependent for such work on their x-ray department, which was under the supervision and full control of Doctor McGill and operated by him and his assistant, Miss Green.

The testimony of appellants Runyan and Kirby and of their business manager, King, shows that the x-ray department at St. Luke's Hospital is separate and distinct from the other departments of the hospital work and used for x-ray purposes by the doctors in attendance at the hospital. During the progress...