Withington v. Jennings

• Decision Date: 16 October 1925
• Citation: 253 Mass. 484,149 N.E. 201
• Parties: WITHINGTON v. JENNINGS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

253 Mass. 484

149 N.E. 201

WITHINGTON

v.JENNINGS.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 16, 1925.

Exceptions from Superior Court, Worcester County; G. A. Flynn, Judge.

Action of tort by Rena F. Withington against Curtis H. Jennings. Verdict was directed for defendant, and plaintiff excepts. Exceptions overruled.

F. W. Morrison, of Worcester, for plaintiff.

C. M. Thayer, of Worcester, for defendant.

CARROLL, J.

The plaintiff, by the advice of her family physician, went to the Heywood Hospital, a charitable institution, to have her tonsils removed by the X-ray method, on April 2, 1921. She was introduced at the hospital to Dr. Meachen who was not a licensed physician, but was the X-ray technician employed by the hospital for X-ray work. While administering the third treatment, on May 21, he neglected to use a filter, and as a result the plaintiff suffered an injury for which damages are claimed.

The defendant was employed by the hospital; he was in charge of its X-ray department, and received for his services one-half of the fees paid to the hospital for X-ray work. He was not consulted by the plaintiff and she did not see him at any of her visits to the hospital. He testified that he specialized in X-ray work; that he prescribed X-ray treatments but did not administer them or take X-ray pictures; that this work was done at the hospital by Dr. Meachen, who was a third year medical student, employed by the hospital to do this and other work; that he gave Meachen directions for the X-ray treatment of tonsils; that the state of the art as ‘practised in the community in 1921 called for a standardized dosage without examination by him of the patient’; that ‘it was not customary for physicians to administer X-ray treatments or take X-ray pictures; that this work was customarily done by persons having experience in using the X-ray machine,’ and he understood that ‘Meachen had considerable experience in this work before coming to the Heywood Hospital.’

Meachen was not employed by the defendant; he was not the defendant's agent or servant. They were fellow employees of the Heywood Hospital. The defendant was not responsible for the neglect of Meachen in administering the treatment which was entirely in his control. The evidence does not show any negligent act of the defendant contributed to the plaintiff's damage; he did not participate in the operation, and was not liable for her injury. The verdict was directed for the...