St. Paul-Mercury Indemnity Co. v. St. Joseph's Hospital
| Decision Date | 12 June 1942 |
| Docket Number | 33194. |
| Citation | 4 N.W.2d 637,212 Minn. 558 |
| Parties | ST. PAUL--MERCURY INDEMNITY CO. v. ST. JOSEPH'S HOSPITAL. |
| Court | Minnesota Supreme Court |
Syllabus by the Court.
When a general employer (hospital) assigns his servant (nurse) to a duty for another (operating surgeon) and surrenders to the other direction and control in relation to the work to be done, the servant becomes the servant of the other insofar as his service relates to the work so controlled and directed and his general employer is no longer liable for his torts committed in the controlled work.
Oppenheimer Hodgson, Brown, Donnelly & Baer, of St. Paul, for appellant.
Weyl & Weyl, of St. Paul, for respondent.
In an action for contribution against defendant hospital, plaintiff recovered a verdict for $1,940.63. The trial court granted defendant's motion for judgment notwithstanding the verdict, judgment was entered, and plaintiff appeals.
The material facts are not in controversy. Lorraine Shafer selected and entered St. Joseph's as a surgical patient October 24 1938. She paid for her room and also for the use of the operating room. She was operated on for appendicitis by her own doctor. He was assisted during the operation by four nurses, all employes of the hospital assigned to that particular operation. During the course of the operation the doctor called for some 'warm water' with which he intended to irrigate the wound. Water was given him by one of the nurses, but he refused it because it was too hot. A nurse then brought another receptacle of water from an adjoining room. The doctor tested it by putting his finger in it. He testified that he thought it was cool enough. Either he or one of the nurses under his direction poured the water into the wound. The water proved to be too hot and burned plaintiff. She brought suit against the doctor and the hospital for $20,654.15, and the doctor's insurance company, plaintiff here, settled with her for $3,750. Defendant refused to participate in the settlement. The doctor assigned all his rights to the plaintiff. Plaintiff admits that the dector was negligent, and brought this action seeking contribution on the theory that the nurse or nurses were also negligent and that defendant was jointly liable with the doctor as their employer.
The case was tried before a jury and the questions of whether the nurses were negligent and whether defendant or the doctor was liable for their acts were submitted to it. The only question that we need consider is whether the hospital can be held liable for the acts of its nurses while they were assisting the doctor during the operation.
It is well established in this state that a hospital, private or charitable, is liable to a patient for the torts of its employes under the doctrine of respondeat superior. Mulliner v. Evangelischer Diakonniessenverein, 144 Minn. 392, 175 N.W. 699; Borwege v. City of Owatonna, 190 Minn. 394, 251 N.W. 915. It follows logically that a doctor is also liable, on the same theory, for the negligence of a nurse in his employ. Aderhold v. Bishop, 94 Okl. 203, 221 P. 752, 60 A.L.R. 137.
The problem, then, is simply one of master and servant--whether the nurses at the time of the alleged negligence were the employes of the doctor or of the hospital. Concededly, they were in the general employ and pay of the hospital and assigned by it to assist in the operation. However, the acts complained of occurred during the operation, were ordered and checked by the operating surgeon, and were of such a nature that, according to his testimony, the nurses while performing them were under his absolute control.
In Aderhold v. Bishop, supra, the operating surgeons were held liable for the negligent acts of assisting nurses, genera employes of the hospital, during an operation. The court pointed out (94 Okl. 206, 221 P. 755, 60 A.L.R. 137): Also, the following portion of Western Union Tel. Co. v. Rust, 55 Tex.Civ.App. 359, 120 S.W. 249, was cited therein: 'Where a servant...
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