Smith v. Mallinckrodt Chemical Works, a Corp.
| Decision Date | 03 April 1923 |
| Parties | VIOLA SMITH, Respondent, v. MALLINCKRODT CHEMICAL WORKS, a Corporation, and OTTO L. ROHLFING, Appellants |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon Granville Hogan Judge.
AFFIRMED.
Judgment affirmed.
Nagel & Kirby, and Everett Paul Griffin for appellants.
(1) The court erred in refusing to give the instruction in the nature of a demurrer to the evidence, offered at the close of the plaintiff's case and renewed at the close of the entire case. (2) Even if defendant Rohlfing were negligent and was employed by the defendant as a physician to treat plaintiff the only basis on which liability could be predicated against the defendant is that the defendant did not use reasonable care in the selection of a physician and there is no such allegation in the petition nor was the case tried on such theory. A physician is an independent contractor. Haggerty v. St. Louis, K. & N.W. R. Co., 100 Mo.App 426 (); O'Brien v. Cunard S. S. Co., 154 Mass. 272; Union Pacific R. Co. v. Artist, 60 F. 365; Myers v. Holborn, 58 N. J. L. 193; Allan v. State S. S. Co., 132 N.Y. 91; McDonald v. Mass. Gen., 120 Mass. 432; McDonald v. Mass. Gen. Hosp., 120 Mass. 432; Secord v. Railroad, 18 F. 221; Atch., Top. & Santa Fe R. R. Co. v. Zeiter, 54 Kan. 340; Maine v. Railroad, 109 Iowa 553; A. Coast Line Co. v. Whitney, 56 So. 937; S. F. R. Co. v. Price, 32 Fla. 46. (3) A physician is held to that care and skill which is exercised generally by physicians of ordinary care and skill in his or similar communities. The physician is not chargeable with negligence for failure to use his best skill and ability if he uses the care and skill which is exercised generally by physicians of ordinary care and skill in similar communities. Hailes v. Raines, 146 Mo.App. 241; West v. Martin, 31 Mo. 375; Robertson v. Wenger, 131 Mo.App. 224; Ghere v. Zey, 128 Mo.App. 362. (4) The burden of proof was on the plaintiff to prove (1) that negligent error was made by the physician and (2) that such negligence was the direct cause of the injury. The physician is not an insurer, nor is he liable for honest errors of judgment. Coffey v. Tiffany & Howard, 192 Mo.App. 469; Martin v. Courtney, 175 Minn. 255. (5) The court erred in giving instructions one, two, three, four and five for the plaintiff. (6) The court erred in refusing to give instructions offered by the defendant, to the effect that only nominal damages could be recovered. (7) The court erred in excluding competent evidence offered by the defendant. (8) The court erred in admitting incompetent evidence offered by the plaintiff, over the objections of defendant. (9) The verdict of the jury was excessive. (10) Where an action is brought for damages which are occasioned by one of two causes, for one of which defendant is responsible and for the other not, the plaintiff is fated to failure, as his evidence fails to show that the damages were produced by the former, or, if from the evidence, the probabilities are equally strong that the damages were caused by one as by the other. Fuchs v. St. Louis, 133 Mo. 196; Searles v. Railroad, 101 N.Y. 661; Smart v. Kansas City, 91 Mo.App. 592; Warner v. Railroad Co., 178 Mo. 134; Cain v. Lounge Co., 222 Mo. 508; Coranson v. Manufacturing Co., 186 Mo. 307; Epperson v. Postal Telegraph Co., 155 Mo. 382.
Albert E. Hausman for respondent.
(1) Defendant Otto L. Rohlfing was not an independent contractor but was a servant of defendant Mallinckrodt Chemical Works, and the corporation was liable for his negligent performance of the work it called upon him to do. Croghan v. Schwarzenbach, 79 A. 1027; Phillips v. St. Louis & San Francisco R. R. Co. , 211 Mo. 419; Jones v. Tri-State Co., 118 Minn. 217. (2) The act of defendant Rohlfing in attempting to diagnose the condition of plaintiff's eye, and in advising her with reference to the treatment thereof, was within the scope of his duty as an employee of Mallinckrodt Chemical Works. The scope of a servant's duties may be shown by testimony as to what he has theretofore done at the request of the master or his representatives. Krueger v. C. & A. R. R., 94 Mo.App. 458; Charlton v. St. Louis & S. F. R. R., 200 Mo. 413. (3) Defendants cannot now contend that defendant Otto L. Rohlfing was an independent contractor, for this was not their theory before the trial court. Defendants joined issue with plaintiff on the question whether defendant Mallinckrodt Chemical Works had (1) employed defendant Rohlfing to make a diagnosis of plaintiff's eye and advise her with reference to the treatment thereof; or (2) whether it was part of the duties of Rohlfing as an employee of the defendant to make such diagnosis and furnish such advice. Defendants' instruction 12. By this theory defendants are bound on appeal. Chandler v. Gloyd, 217 Mo. 394; Lange v. Mo. Pac., 208 Mo. 458; Mercantile Co. v. Burrell, 66 Mo.App. 117; Jennings v. St. Louis, I. M. & S. R. R., 99 Mo. 394; Seiter v. Bischoff, 63 Mo.App. 157; Berkson v. K. C. Cable Co., 114 Mo. 211. (4) Furthermore defendant Otto L. Rohlfing was regularly employed by defendant Mallinckrodt Chemical works upon a monthly salary, devoted all his time to its business and was prima facie its servant in all that he did at its request. The burden was on defendants to prove that he was an independent contractor, if such were the case. Slayton v. West End R. R., 174 Mass. 55; Berry v. Ford, 17 Mo.App. 212; Shamp v. Lambert, 142 Mo.App. 567; Jones v. Tri-State, 118 Minn. 217; Phillips v. St. Louis & S. F. R. R., 211 Mo. 419. (5) When a master undertakes to care for an injured servant, it becomes his duty to exercise reasonable and ordinary care to care for or advise him properly. Hunicke v. Quarry Co., 262 Mo. 560. (6) Plaintiff made a prima-facie case entitling her to go to the jury when she showed that defendant Rohlfing diagnosed the condition of her eye incorrectly and advised no treatment for it. Granger v. Still, 187 Mo. 197. (7) Plaintiff made a prima-facie case when she showed that defendant Rohlfing failed to heed her statement with reference to the waving clouds of color before her eye, for he then failed to exercise ordinary care to collect data essential to a proper conclusion or diagnosis. This is negligence for which he is liable. 30 Cyc., page 1579; West v. Martin, 31 Mo. 375; Granger v. Still, 187 Mo. 197. (8) Whether defendant Rohlfing used the care and skill required of him by law was properly submitted to the jury under instructions prepared and offered by defendants. The verdict of the jury is conclusive on that issue. Instructions Nos. 9, 10 and 11. (9) The question of proximate cause is for the jury. Though it may be difficult for the jury to determine whether one cause or another is the proximate cause of plaintiff's injury, nevertheless it is their duty to do so. And when they have done so, under proper instructions, an appellate court will not interfere. Defendant's instruction No. 13; Chaplin v. Hicks, 2 K. B. (1911) 786; Scheurer v. Rubber Co., 227 Mo. 359; Seckinger v. Philibert, 129 Mo. 590; Jenkins v. Pennsylvania R. R., 67 N. J. L. 331; Eicholz v. Poe, 217 S.W. 282; Sharp v. Railroad, 213 Mo. 517; McDonald v. Railroad, 219 Mo. 468; Poumeroule v. Cable Co., 167 Mo.App. 533; DeMaet v. Fidelity Storage Co., 231 Mo. 615; Western Union Telegraph Co. v. Church, 57 L. R. A. 905; Edison v. Metro. Street R. R., 209 S.W. 575. (10) Defendants have waived the question of sufficiency of the evidence to support finding of the jury that the negligence of Rohlfing was the proximate cause of the injury. They submitted that issue to the jury under instructions of their own preparation. Cases cited under point 3.
A negligence case. Plaintiff had a verdict and judgment for $ 7500. Defendants appeal, claiming there is no liability under the facts, that the acts of the defendants did not proximately cause plaintiff's injuries, and that the judgment is excessive. Error is also assigned because of the instructions, but this is based on the claim of non-liability.
Plaintiff charges that the defendant Rohlfing was an employee of the defendant Mallinckrodt Chemical Works; that on or about March 10, 1915, and while plaintiff was employed in the packing department of the defendant weighing drugs and chemicals and while she was engaged in the discharge of her duties as such employee, she suffered an injury to her left eye; that thereupon said defendant, through its agent and servant Otto L. Rohlfing, attempted to and undertook to make a diagnosis of said eye and did advise plaintiff with reference to the treatment thereof; that plaintiff at that time was a minor under the age of seventeen years, and trusting in the competency and skill of the said agent and servant of defendant to make said diagnosis and to give said advice, submitted thereto and relied thereon for a period of proximately one month; that at the end of said period the sight of said eye was so greatly diminished as to be practically destroyed.
It is further charged that when defendant Mallinckrodt Chemical Works, through said Rohlfing, undertook to make a diagnosis of plaintiff's eye and to advise her with reference to the treatment thereof, it thereupon became the duty of said defendant Chemical Works, through said Rohlfing, and it was the duty of said Rohlfing to exercise ordinary care and skill in the diagnosis made and advice given relative to said eye; that the said Chemical Works through said Rohlfing, did not make a correct and proper diagnosis of the condition of said eye and did not properly, correctly and efficiently advise plaintiff with reference to...
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