Barnes v. Mitchell , 341 Mich. 7 ( 1954 )

Kelly, J.

Defendant, a chiropractor, operates a clinic at Three Rivers, Michigan. Plaintiff started his suit claiming that both of his hands were severely burned as a result of an X-ray treatment he received at defendant’s clinic on October 6, 1948. This appeal is taken'from the court’s judgment for the defendant notwithstanding the jury’s verdict of $3,-500 for the plaintiff.

Plaintiff did ndt go to defendant for treatment of his hands but for a back ailment. Plaintiff testified that every winter he would get “weather cracks” in his hands because as a wood pattern worker he had to work with wood, resin and tar. Defendant noticed this condition and convinced plaintiff he could cure his hands at the same time he gave him treatments for his back. Defendant, testifying as to the condition of the hands, said that plaintiff had an allergy, eczema.

Defendant testified he treated plaintiff’s back ailment by massage and diathermy, using an “electrical instrument that generates heat,” and stated: “I gave adjustment, massage to him and my assistant gave the diathermy and that part of it.” Plaintiff had appointments at the clinic 3 times a week, but he received X-ray treatments for his hands every second or third appointment. Defendant gave plaintiff’s hands 5 X-ray treatments previous to October 6,1948.

Defendant had 2 employees at his clinic, Yelda Parks and Bonnie Esterbrook. They are referred to as nurses in the briefs but the record does not disclose the nature or extent of their training or whether they were registered nurses.

. When plaintiff kept his appointment on October 6,1948, he was advised by Velda Parks that “Bonnie has forgot about you and gone home, she is supposed to give you your treatment, I will call her back.” Bonnie Esterbrook came back to the clinic in response to Velda Parks’ call, and while she was giving the X-ray treatment to plaintiff’s hands a muffled explosion was heard. Plaintiff testified that on his way home his hands commenced to burn, that he could smell burned flesh, and that his hands were all red when he arrived home. On his next regular appointment at the clinic, 3 days later, plaintiff showed his hands to defendant, stating he thought he had had too strong a treatment. Defendant said: “My goodness, your hands are burned. * * * I am glad the tube burst because if it had not burst, you would not have any hands.”

Both Dr. Grekin, an expert witness in skin treatment and use of X-ray, and Dr. Hildreth, a specialist in X-ray and radiology, testified, and. the record is convincing that plaintiff suffered X-ray burns from an overdosage of X-ray; that the palms of both hands were burned to such an extent that not only will the injury be permanent but with the danger that the X-ray dermatitis will break down into cancer.

Defendant was called to the stand by plaintiff for cross-examination under the statute. He did not attempt to explain or defend the actions of his employee Bonnie Esterbrook. He stated he was in Ohio on October 6, 1948, that he had never authorized her to give the plaintiff the X-ray treatment, nor had she ever given plaintiff a treatment previous to October 6th. Defendant testified that when he returned from Cleveland to his clinic he found the tube of his X-ray machine burned out.

The trial court in his opinion stated: “Neither Velda Parks nor Bonnie Esterbrook were parties defendant, nor were either of them called as witnesses in this case by either party, so we do not have the benefit of their testimony. It is not known whether they were available or not.”

Defendant answers plaintiff’s claim of negligence by merely saying that he never authorized his employee Bonnie Esterbrook to use the X-ray. Defendant did not testify that he cautioned her against using the X-ray machine or forbade her its use and admits that previous to October 6th she used electrical instruments generating heat to give diathermy treatments to plaintiff.

The court gave as his reason for rendering judgment notwithstanding the verdict that plaintiff failed to prove that it was the usual and customary practice for Bonnie Esterbrook to give X-ray treatments or that the treatment was given under the direction of the defendant.

There is nothing in the record that even allows speculation that Bonnie Esterbrook gave the treatment for her own profit or gain. As defendant’s employee she was using defendant’s clinic and X-ray machine to give a treatment to defendant’s patient and there is every reason to conclude that she thought she was furthering her employer’s interest in so doing. There was sufficient evidence to sustain the jury’s verdict that Bonnie Esterbrook was authorized to give the plaintiff the X-ray treatment. This Court has held: “In considering a motion by defendant for a judgment non obstante veredicto, the evidence must be viewed in the light most favorable to plaintiffs; the same considerations obtaining as upon a motion to direct a verdict.” Yacobian v. Vartanian (syllabus), 221 Mich 25. But even though Bonnie Esterbrook was exceeding her authority in using the X-ray machine, that would not excuse defendant from negligence.

In Riley v. Roach, 168 Mich 294 (37 LRA NS 834), this Court defined the term “in the scope of his employment” as follows (p 307):

“The phrase fin the course or scope of his employment or authority,’ when used relative to the acts of a servant, means while engaged in the service of his master, or while about his master’s business.”

In Chicago & Northwestern Railway Co. v. Bayfield, 37 Mich 205, 212, 213, it is stated:

“Nor do we think it follows that because Smith at the time was exceeding his authority, the company is not responsible for his action. It is in general no excuse to the employer that an injury which has occurred was caused by disobedience of his orders, whether they be express orders or implied orders. He assumes the risks of such disobedience when he puts the servant into his business; and the reasons for holding him responsible for the servant’s conduct are the same whether the injury results from a failure to observe the master’s directions, or from neglect of the ordinary precautions for which no specific directions are deemed necessary. It will be conceded that for a positive wrong beyond the scope of the master’s business, intentionally or recklessly done, the master cannot be held responsible; this being very properly regarded as the personal trespass or tort of the servant himself. But when the wrong arises merely from an excess of authority, committed in furthering the master’s interests, and the master receives the benefit of the act, if any, it is neither reasonable nor just that the liability should depend upon any question of the exact limits of the servant’s authority. The master fixes these, and it is his duty to keep his servant, in what is done by him, within the limits fixed. An act in excess would still have the apparent sanction of his authority; the occasion for it would be furnished by the employment, and the injured party could not;,always be expected to know or be able to discover whether it was or was not without express sanction.”

In Loux v. Harris, 226 Mich 315, we said (pp 317-322):

“The declaration charged defendant with liability as master of Wagner. Defendant admitted the relation, denied Wagner was afating within the scope of his employment and had verdict in his' favor because Wagner disobeyed his instructions. Was the trial judge in error in directing a verdict for defendant? * * *

“This suit is an .action by a third person against the owner of an automobile for a tort committed by a servant while about his master’s business. The motor vehicle statute extends liability of an owner to cases other than master and servant where an injury is occasioned by the negligent operation of an automobile ‘being driven by; the express or implied consent or knowledge of such owner.’ This, hotuever, is a common-law action against a master for the negligence of his servant while about the master’s business and, in considering the legal questions, the statute relied' upon in the court below must be laid entirely aside. An extended examination of text books and case law upon the subject of. liability of a master for- torts of a servant discloses quite general agreement upon certain principles. Some of such principles will be mentioned for we intend to apply them. (Emphasis supplied.)

“Selling gasoline .was a part-of defendant’s business and, therefore, within the scope of Wagner’s employment. Wagner violated instructions in taking the gasoline to the stranded renter of one of defendant’s cars. In doing this was he about the business of defendantror was his act a seyerance in and of itself of his relation to his master's business? Was he.driving on his master’s business? Certainly he was hot driving on. his own affairs. Disobedience of how to handle business placed in his.charge did not relieve the master.:- The liability of defendant depends npion whether' Wagner., in taking gasoline to the renter of one of defendant’s cars, was acting within the scope of his employment.

“In Riley v. Roach, 168 Mich 294; 307 (37 LRA NS 834), it was said:

.“ ‘The phrase “in the ,course or scope of his employment or authority,” when used relative to the acts of a servant, means while engaged in the service of his master, or while about his master’s business.'

“See, also, Hartley v. Miller, 165 Mich 115 (33 LRA NS 81, 1 NCCA 126); Brinkman v. Zuckerman, 192 Mich 624; Hill v. Haynes, 204 Mich 536.

“Wagner was authorized to sell gasoline at the garage. He made a , sale of what he was employed to sell but delivered the article in disobedience of instructions given him by his master, and employed defendant’s vehicle in doing 'so, contrary to the master’s instructions. He was, therefore, about his master’s business but acting in a forbidden way. Wagner’s disobedience in not notifying the defendant and in leaving the garage and using the automobile did not place him outside of the scope of his emplovment. * * *

“In Smith v. Yellow Cab Co., 173 Wis 33 (180 NW 125), a taxicab driver, in violation of his master’s instructions, took passengers outside of ,a city and, Avhile returning, caused an accident. It wás claimed the servant was outside the scope of his employment. In passing on this claim the court said [pp 35, 36]:

“ ‘If it were true that a servant is outside the scope of his employment whenever he disobeys the orders of his master the doctrine of respondeat superior would have but scant application, for the master coidd always instruct his servant to use ordinary care under all circumstances. The servant’s negligence would therefore always be contrary- to orders and the nonliability of the master would follow. But such is not the law. The servant is within the-scope of his employment when he is engaged in the master’s service and furthering the master’s business though the particular act is contrary to instructions. The purpose of the service rendered by the employee, and not the method of performance, is the test of whether or not the servant is within the scope of his employment. If the purpose is to further the master’s business and not that of the servant, the latter is within the scope of his employment though he be negligent or disobeys orders as to the method of its execution.’ * * *

“The tort of the servant was committed while he was about the business of his master and not while on any affair of his own. The case should have been left to the jury.”

This Court in Loveland v. Nelson, 235 Mich 623, considered a malpractice suit involving the extraction of a tooth. At the close of plaintiff’s proofs the trial judge directed a verdict on the ground that the testimony left the question of the proximate cause of plaintiff’s condition too conjectural to authorize the submission of the case to the jury, and that without adopting res ipsa loquitur no negligence of defendant was established. We said (p 625):

“This Court has not adopted the rule res ipsa loquitur but this does not prevent a plaintiff making a case by circumstantial evidence. In Burghardt v. Detroit United Railway, 206 Mich 545 (5 ALR 1333), this Court, with the citation of numerous sustaining authorities, said:

“ ‘This Court has not adopted the rule res ipsa loquitur; we have uniformly held that the happening of the accident alone is not evidence of negligence; and we have as uniformly held that negligence may be established by circumstantial evidence, and that where the circumstances are such as to take the case out of the realm of conjecture and within the field of legitimate inferences from established facts that at least a prima facie case is made.’

“And it is the province of the jury to draw the legitimate inferences from the established facts in this character of cases. Marx v. Schultz, 207 Mich 655 (19 NCCA 976); Wood v. Vroman, 215 Mich 449. The Wood Case was a malpractice case, and it was said by Mr. Justice [Nelson] Sharpe, speaking for the Court (pp 461, 462):

“ ‘The plaintiff was not required to prove to an absolute certainty that the infection was caused by the introduction of the germs in the pus. He was required to establish facts from which such an inference might fairly have been drawn by the jury.’

“So, if the plaintiff’s testimony, taken in its most favorable light, tends to make such a case that, by excluding other causes and the establishing of the circumstances surrounding the incident, the jury would, by drawing the legitimate inferences from the established facts, find negligence on the part of defendant, they have established at least a prima facie ease entitling them to take the judgment of the jury.”

Appellee in his brief urges the point that general principles controlling responsibility in master and servant cases are not applicable in this instance and states that “there is a limitation to the general rules of agency or master and servant.”

The only authority appellee cites for making this exception is 41 Am Jur, Physicians and Surgeons, §112, pp 223, 224:

“It is the established rule that a physician or surgeon must exercise due care in selecting his assistants, and on the simplest principles of the law, agency, or of master and servant, a physician or surgeon may be liable for the neglect or fault of his employee or servant, such as an assistant who is working under his direction, for injury resulting therefrom to a patient.”

We do not believe the above-cited section confines responsibility of a physician or doctor to only acts which are committed by the assistant who is working under the direction of the doctor.

In 70 CJS, Physicians and Surgeons, § 54, pp 978,, 979, it is stated:

“A physician is responsible for an injury done to a patient through the want of proper skill and care in his assistant, and through the want of proper skill and care in his apprentice, agent, or employee. The fact that a physician’s assistant is a’ member of' the same or a similar profession does not make the rule of respondeat superior inapplicable, and a physician is liable not only for negligence of laymen employed by him, but also for the negligence of' nurses or other physicians in his employ.”

Massachusetts has adopted a different principle than is advocated by appellee, as is evidenced by McDonald v. Dr. McKnight, Inc., 248 Mass 43 (142 NE 825). In a tort action against a dentist for personal injuries alleged to have been caused by the negligence of the employee of the defendant the court held (syllabi):

“(1) The question, whether the extractor of the tooth was acting within the scope of his ostensible employment as between the parties, was for the jury;

“(2) The plaintiff had a right to trust to appearances and to the not unreasonable assumption that the defendant would not permit unauthorized persons to appear to be acting as his agents; and he could not be expected nor was he required to ask for proof of the authority of the cashier or of the registered dentist or of the extractor of the tooth;

“(3) The defendant could not avoid liability by evidence that the extractor’s authority was limited.”

In McConnell v. Williams, 361 Pa 355 (65 A2d 243), the doctor was charged with being responsible for the negligent acts of an interne in a hospital after a baby’s birth and after the doctor gave the baby to tbe interne to apply drops to the baby’s eyes. The court said (p 357):

“Physicians and surgeons, like other persons, are subject to the law of agency.”

In the New Jersey case of Klitch v. Betts, 89 NJL 348 (98 A 427), the question was presented as to a dentist’s negligence fo.r the improper extraction of a tooth by his assistant. The court stated (pp 351, 352):

“The claim that the relationship of master and servant did not exist was based upon the fact that Snively’s hours in the defendant’s office were from 9 a.m. to 6 p.m., and that he was not authorized to extract teeth except under the supervision of the defendant, the contention being that because the tooth was extracted after 6 o’clock, and in the absence of the defendant, it was the independent act of Snively, and not done in the course of his employment. What Snively did was within his implied authority, and even if done without the authority of the defendant, for any violation of general rules laid down for Snively’s guidance the master is still responsible. When the defendant employed Snively and left him in charge of his office so that persons going there had a right to infer that he represented the defendant, the mere fact that it was after 6 o’clock did not destroy the relation of master and servant.

“The general rule is a very clear one, that the master is liable for any act of his servant done within the scope of his employment, and if a servant is acting in the execution of his master’s orders, and by his negligence causes injury to a third party, the master will be responsible, although the servant’s act was not necessary for the proper performance of his duty to his master or was even contrary to his master’s orders. McCann v. Consolidated Traction Co., 59 NJL 481, 487 (36 A 888, 38 LRA 236).

“The application of the rule respondeat superior does not depend upon the obedience- of the servant to his master’s orders, nor upon the legality of the servant’s conduct; where a servant is acting within the scope of his employment, and in so acting does something negligent or wrongful, the employer is liable, even though the acts done may be the very reverse of that which the servant was actually directed to do. Driscoll v. Carlin, 50 NJL 28, 30 (11 A 482). * * *

“To rebut the presumption of liability of a master for damage consequent upon the negligent act of a servant, done within the apparent scope of the latter’s employment, it must be shown either that the act was purely wanton or that it was not performed in furtherance of any duty within the actual scope of the servant’s authority. Rhinesmith v. Erie Railroad Co., 76 NJL 783 (72 A 15).

“In cases where the scope of authority of a servant or agent depends upon disputed matters of fact, the extent of such authority is ordinarily a question for the jury. Dierkes v. Hauxhurst Land Co., 80 NJL 369 (79 A 361, 34 LRA NS 693).”

There are no statutory provisions in this State applicable to the question presented to this Court, and, therefore, the common law determines the question of defendant’s liability for the admitted negligent burning of plaintiff’s hands. If the common-law rule is to be abandoned in this State it will have to be through legislative enactment rather than by a decision of this Court.

The defendant’s negligence in this case was established because;

1. There was sufficient evidence that the defendant authorized the X-ray treatment to submit the question to the jury and sufficient evidence to sustain the jury’s verdict;

2. It was not necessary for the plaintiff to prove that it was the usual and customary practice for Bonnie Esterbrook to give X-ray treatments or that the treatment was given under the direction of the defendant. There was sufficient evidence that Bonnie Esterbrook gave the X-ray treatment within the scope of her employment and to further the interest of the defendant rather than her own interest. We cannot sustain the trial court’s reason for judgment notwithstanding the verdict.

Defendant urges another reason not mentioned by the lower court for sustaining the judgment for defendant notwithstanding the verdict, namely, the failure of the plaintiff to meet the proof required in Ballance v. Dunnington, 241 Mich 383 (57 ALR 262); Nemer v. Green, 316 Mich 307; Facer v. Lewis, 326 Mich 702. In each of these cases this Court stated that the defendant physician’s responsibility to his patient would be determined by deciding whether he exercised the reasonable and ordinary care, skill and diligence possessed by others in the same line of practice in similar localities. The reason for these decisions is obvious—to determine the responsibility of the physician who claimed to be qualified to administer X-ray treatments.

The above-cited cases do not apply to the present case. No one, including the defendant, claimed that Bonnie Esterbrook was qualified to administer X-ray treatments, and all the facts and circumstances justified the jury’s finding that she was not qualified.

The judgment for the defendant notwithstanding the verdict is reversed and the case is remanded with directions to the trial court to enter a judgment in favor of the plaintiff in accordance with the verdict of the jury. Costs to plaintiff.

Bittzel, C. J., and Carr, Bushnell, Boyles, and Reid, JJ., concurred with Kelly, J. Dethmers, J. I concur in result for the first reason herein advanced.