Penland v. French Broad Hospital, Inc.

Connor, J. The case on appeal settled by the judge, upon disagreement of counsel, and certified to this Court on defendant’s appeal, O. S., 644, does not show that at the close of the evidence for the plaintiffs, defendant moved for judgment dismissing the action as of nonsuit, C. S., 567. When plaintiffs rested their case, defendant introduced evidence, and at the close of this evidence, plaintiffs introduced evidence in rebuttal. At the close of all the evidence, as shown by the case on appeal, defendant moved for judgment dismissing the action as of nonsuit “upon the ground that in no view of the evidence, if believed, are the plaintiffs, or either of them entitled to recover in this action.” This motion was denied and defendant excepted. The assignment of error based on this exception cannot be considered by this Court. It is expressly provided by the statute, C. S., 567, that when the plaintiff has introduced his evidence, and rested his case, the defendant may move to dismiss the action or for judgment as in case of nonsuit. It is only when this motion has been overruled, and defendant has excepted, and thereafter introduced evidence, that he may, at the close of all the evidence, again move to dismiss the action. If this motion is denied, and defendant excepts, he has the benefit of this exception on his appeal to this Court. In the absence of a motion to dismiss at the close of the evidence for the plaintiff, and an exception to the denial of such motion, an exception to the denial of a motion by the defendant, who has thereafter introduced evidence, at the close of all the evidence, is not sufficient to present to this Court, on defendant’s appeal, the question as to whether upon all the evidence, the plaintiff is entitled to recover. The power of the Superior Court to grant an involuntary nonsuit is altogether statutory. Riley v. Stone, 169 N. C., 421, 86 S. E., 348. The provisions of the statute must be complied with, strictly, in order that defendant may have the benefit of its provisions. Upon this principle it has been uniformly held by this Court, since the enactment of the statute by the General Assembly in 1897, that an exception to the denial of a motion *318 by defendant to dismiss the action, made at the close of the evidence for the plaintiff, is waived when the defendant thereafter introduces evidence. Nash v. Royster, 189 N. C., 408, 127 S. E., 356; Gilland v. Stone Co., 189 N. C., 783, 128 S. E., 158; Wooley v. Bruton, 184 N. C., 438, 114 S. E., 628; Bordeaux v. R. R., 150 N. C., 528, 64 S. E., 439. The defendant’s failure to renew the motion to dismiss, at the close of all the evidence, deprives him of the right to present to this Court, on his appeal, his contention that there was error in the denial of his motion at the close of the evidence for the plaintiff, or at the close of all the evidence. So, where defendant has not moved at the close of plaintiff’s evidence to dismiss the action, he cannot by such motion at the close of all the evidence, avail himself of the provisions of the statute. The defendant in this action, however, at the close of all the evidence, and in apt time, C. S., 565, requested the court, in writing, to instruct the jury as follows: “1. That in no view of the evidence are the plaintiffs, or either of them, entitled to recover, and therefore, the jury is instructed to answer the first issue 'No,’ and that they need not answer the other issues. “2. That the burden of all the issues is on the plaintiffs, and the court charges that there is no evidence that the defendant hospital performed the operation on the plaintiff, Bessie Penland, or that the hospital selected the surgeon or surgeons who operated on her, and therefore, the jury will answer the first issue, 'No.’ ” To the refusal of the court to give these instructions, the defendant excepted, and on its appeal to this Court assigns such refusal as error, for which it is entitled to a new trial. By its assignments of error based on its exceptions to the refusal of the court to give these instructions, the defendant presents to this Court its contention that, conceding there was evidence from which the jury could find that the surgeon or surgeons who performed the operation on the plaintiff, Bessie Penland, by which her appendix was removed, were negligent as alleged in the complaints, there was no evidence tending to show, or from which an inference could reasonably be drawn, that said surgeon or surgeons performed the operation as agent or employee, or as agents or employees of the defendant corporation, as alleged in the complaints. All the evidence tended to show that prior to the performance of the operation, the plaintiffs, Bessie Penland and her husband, J. L. Penland, were advised by her physician that she was suffering with appendicitis, and that an operation for the removal of her appendix was necessary to give her relief; that acting upon the advice of her said physician, plaintiff agreed that the said Bessie Penland should be taken to the *319 hospital of defendant for said operation; that the operation was performed in said hospital by a surgeon selected and employed for that purpose, with the consent of plaintiffs, by the physician, who was attending the plaintiff, Bessie Penland. There was no evidence tending to show that said surgeon was employed or paid by the defendant corporation for said operation, or that defendant selected or recommended said surgeon as possessing the skill or professional qualifications required for the performance of the operation.' The fact that the said surgeon was on the “staff” of the hospital, or that he was a stockholder and officer of the defendant corporation, did not show or tend to show that he was the agent of or was employed by the defendant. .Any physician or surgeon practicing his profession in the city of Asheville, was qualified to become a member of the “staff” of said hospital, and to perform operations or treat his patients in said hospital. All the evidence tended to show that the defendant undertook only to provide facilities for the performance of the operation, and for the treatment of plaintiff, Bessie Penland, while she was recovering from the operation. There was no evidence tending to show that the defendant undertook to furnish or did furnish a physician or surgeon to perform the operation, or to care for the plaintiff while she was recovering from its effect. During the operation, and at all times subsequent thereto, she was under the care and treatment of physicians and surgeons chosen and employed by her husband, or at his request and with his consent, by her physician. Conceding that there was evidence from which the jury might infer that the surgeon who performed the operation negligently permitted gauze or packing to remain in the wound made by him in the performance of the operation (McCormick v. Jones, 152 Wash., 508, 278 Pac., 181, 65 A. L. R., 1019) we find no evidence from which the jury could find that defendant was liable for such negligence. In Pangle v. Appalachian Hall, 190 N. C., 833, 131 S. E., 42, if is said by this Court that “there can be no question about the liability of a privately owned or corporate hospital, conducted for individual gain, and not for charitable purposes, for damages to its patients resulting from negligence attributable to the agents of such hospital. Young v. Gruner, 173 N. C., 622, 92 S. E., 618; Green v. Biggs, 167 N. C., 417, 83 S. E., 553.” This principle, however, is not determinative of the right of plaintiffs to recover on this action. In Johnson v. Hospital, 196 N. C., 610, 146 S. E., 573, it is said: “In the case at bar the action for damages is brought solely against the corporate defendant, and not against the surgeon who, it is alleged, negligently injured the plaintiff. It is a well recognized rule of law that corporations are liable for the negligent, wilful or malicious torts of *320 their servants or agents, when acting within the course and scope of their employment. Ange v. Woodmen, 173 N. C., 33, 91 S. E., 586; Cotton v. Fisheries Co., 177 N. C., 56, 97 S. E., 712; Clark v. Bland, 181 N. C., 110, 106 S. E., 491; Sawyer v. Gilmers, 189 N. C., 7, 126 S. E., 183; Kelly v. Shoe Co., 190 N. C., 406, 130 S. E., 32. The ultimate inquiry then, is whether or-not Dr. Sloan, in treating the plaintiff, was acting as the servant or agent of the hospital corporation and within the course and scope of his employment. Clearly the corporation would not be liable for the negligent acts of its officers, merely because they were officers.” The facts in the .instant case, as shown by all the evidence, are almost identical with those in Johnson v. Hospital, supra, and in accordance with our decision in that case, defendant’s assignments of error based upon its exceptions to the refusal of the court to give the instructions prayed for, are sustained. The owner of a hospital, whether an individual, firm or corporation, is not liable for damages resulting from a surgical operation, or from treatment, medical or otherwise, in said hospital, where the surgeon who performed the operation or the physician who treated the patient, was employed by the patient or by some one other than such owner, and the damages resulted from the negligence of such surgeon or physician. The owner of the hospital, when the hospital is conducted for his, their or its gain, and not for charitable purposes, is liable for such damages when they result from injuries caused by the negligence of such owner, or by the negligence of his, their or its agents, servants or employees acting within the scope of their employment. When the owner of the hospital undertakes only to furnish the facilities for the operation, or for the treatment of the patient, and the patient selects and employs the surgeon who operates on or the physician who treats the patient, such owner, although he, they or it charges for the use of the facilities furnished, is not liable for damages resulting solely from the negligence of the surgeon or physician. “A private hospital is not responsible for any default on the part of an operating surgeon who practices his profession as an independent agent. Where a patient employs a surgeon not in the employ of the hospital, the hospital is not liable for his negligence, although the surgeon is an officer and stockholder of the hospital corporation.” 30 C. J., 467. In support of the text, the author of the article entitled “Hospitals,” cites Barfield v. South Highlands Infirmary, 191 Ala., 553, 68 So., 30, Anno. Cas., 1916C, 1097, in which it was held that where the medical and surgical treatment of a patient in an infirmary and an operation were prescribed and performed by a surgeon under an independent employment by the patient, the infirmary corporation was not *321 liable for bis negligence, unskillfulness or other wrong, though he was a shareholder and officer of the corporation. It is unnecessary to discuss or to decide other assignments of error on this appeal based upon exceptions to the admission of evidence offered by the plaintiffs. For error in the refusal to give the instructions prayed for by defendant, the judgments are reversed. New trial.