
    (109 Tex. 391)
    MOORE v. LEE.
    (No. 2652.)
    (Supreme Court of Texas.
    April 16, 1919.)
    1. Physicians and Surgeons <S=18(5) — Malpractice op Substitute — Action—Pleading.
    In action for alleged malpractice of a substitute sent by defendant physician, specially employed to attend and treat plaintiff’s wife, where no pleading was filed by plaintiff, who assented to defendant’s nonattendance, alleging that substitute sent was held out as defendant’s partner, it would be immaterial on the question of defendant’s liability whether defendant represented that the substitute was his partner.
    2. Physicians and Surgeons <®=>16 — Furnishing Substitute — Care Required.
    Where defendant physician, when called to attend plaintiff’s wife pursuant to contract, stated that he would be unable to attend, and plaintiff asked him to speedily dispatch another physician defendant’s duty was to exercise ordinary care in selection of the substitute sent.
    3. Physicians and Surgeons @=16 — Negligence op Substitute — Liability.
    If defendant, who had-contracted to personally attend plaintiff’s wife during approaching confinement, but who was unable to do so, used ordinary care in selecting a substitute when requested by defendant to speedily dispatch another physician, he would not be liable for negligence or lack of skill of substitute sent in the absence of facts showing that the substitute was acting as his agent.
    4. Physicians and Surgeons <S=»16 — Partnership Agreement — Evidence.
    Where it was a long-established custom among doctors where the parties resided for a doctor to send another to those patients whom he was unable to attend, defendant’s statement to a physician selected by him to attend to a ease that it would be a partnership case cannot be construed otherwise than as meaning that defendant expected to resume charge when his other engagements would permit, and that each for his services would be entitled to compensation.
    5. Physicians and Surgeons @=»16 — Malpractice op Substitute — Instruction.
    Where defendant, when called to attend plaintiff’s wife pursuant to contract, stated that he would be unable to attend, and plaintiff asked him to speedily dispatch another physician which defendant did, court properly refused to charge that any negligence or lack of sidll of physician dispatched was chargeable to defendant, regardless of the care exercised in selection.
    .Error to Court of Civil Appeals of Fifth Supreme Judicial District.
    Suit by S. E. Lee against H. Leslie Moore. Judgment for defendant was reversed by the Court of Civil Appeals (162 S. W. 437), and, on writ of error, section B of the Commission of Appeals recommended an affirmance of the judgment of the Court of Civil Appeals.
    Judgment of Court of Civil Appeals reversed, and judgment of district court affirmed.
    Thomas & Rhea and 6. D. Hunt, all of Dallas, for plaintiff in error.
    L. R. Callaway, of Dallas, for defendant in error.
   GREENWOQD, J.

This suit was brought by defendant in error, S. E. Lee, to recover damages of plaintiff in error, Dr. H. Leslie Moore, for an alleged breach by plaintiff in error of his contract to attend and treat .the wife of defendant in error, during and after birth of a child, and for alleged malpractice on the wife, during her confinement, by Dr. A. D. Hardin, for whose acts and negligence, it was charged, plaintiff in error was liable. The plaintiff in error answered that he arranged for Dr. Hardin, who was a careful and skillful physician,. to attend defendant in error’s wife, during the childbirth, by express agreement with defendant in error, and that he was to be notified in the event any complications arose, but was never so notified, and that he had not violated his agreement with defendant in error.

The material facts proven were that plaintiff in error and defendant in error had entered into an agreement, whereby the wife of defendant in error was to have the services of plaintiff in error, as a physician, for an agreed fee, during the approaching confinement of the wife, who was visited and examined by defendant in error between 1 and 2 o’clock on the morning of February 6, 1911, and at that time plaintiff in error promised to return when needed. On account of the setting of a lawsuit against plaintiff in error and others, at Ft. Worth, for February 6, 1911, and pressing professional engagements, plaintiff in error concluded that he would not be able to return to Mrs. Lee. It was the custom among the reputable physicians of Dallas, where the parties resided, for a physician who determined that he could not meet all his engagements to send some other physician, and, about 8 o’clock on February 6, 1911, plaintiff in error telephoned Dr. Hardin that he might need him during that morning. Before 9 o’clock, defendant in error notified Dr. Moore that it was time for him to come to Mrs. Lee, when Dr. Moore replied that, because of important business, he would be unable to come, but he would send another physician, to which defendant in error responded with a request to send him in a hurry. Until about a quarter past 9 o’clock, there was another physician in the neighborhood of defendant in error, with whom defendant in error talked, without asking him to attend Mrs. Lee. After being requested by defendant in error to send another physician in a hurry, plaintiff in error telephoned to Dr. Hardin, whose general reputation in Dallas as a phy-sitian was good, saying that lie had a ease, to which he wanted to send him, that it was a partnership case, of which he expected to take care, and plaintiff in error requested D-r. Hardin to go out and look after the wife of defendant in error, and to notify him if he needed help or anything went wrong, whereupon he would either come himself or send assistance. Dr. Hardin reached the home of defendant in error about 10 o’clock and attended to the delivery of the child, and there was evidence to raise the issue of injury to Mrs. Lee through acts or negligence of Dr. Hardin. Defendant in error expressed no dissatisfaction to Dr. Hardin, at the time the child was delivered, and paid him on his second or third visit the full fee, which he testified he had agreed to pay plaintiff in error, and paid nothing to plaintiff in error.

A jury trial resulted in a verdict and judgment for plaintiff in error, which was reversed by the Court of Civil Appeals, and Section B of the Commission of Appeals recommended that the judgment of the Court of Civil Appeals be affirmed.

The trial court charged the jury that the law required the exercise of ordinary care by plaintiff in error in his personal attention to Mrs. Lee, and also required the exercise of ordinary care by plaintiff in error in the selection of another physician for her. The trial court refused requests to charge that any negligence or lack of skill on the part of Dr. Hardin, resulting in injury to Mrs. Lee, was chargeable to plaintiff in error, regardless of the care exercised by plaintiff in error in Dr. Hardin’s selection.

The controlling question here is whether the action of the trial court was correct in giving and refusing these charges.

It is quite undeniable that defendant in error assented to plaintiff in error’s own nonattendance on his wife. He admits that, when telephoned plaintiff in error’s reasons for seeking to be released from treating his wife, his response was to urge haste in sending another physician. It is immaterial to the matter of plaintiff in error’s liability for Dr. Hardin’s negligence or lack of skill, under the issues joined herein, whether plaintiff in error represented Dr. Hardin to be his partner at the time he proposed sending him. No pleading was filed by defendant in error, alleging that Dr. Hardin was held out as plaintiff in error’s partner, nor seeking to hold plaintiff in error liable as a partner with Dr. Hardin, nor seeking to recover any damages for any misrepresentation of Dr. Hardin’s status as a partner. So the question is simply, What was plaintiff in error’s duty, under the law, when defendant in error asked him to speedily dispatch another physician to treat Mrs. Lee? To our minds this question admits of no answer save that the duty of plaintiff in error was to exercise ordinary care in the selection of the physician to be sent, as the jury was instructed by the trial- court.

The opinion in Texas Central Railroad Co. v. Zumwalt, 103 Tex. 607, 132 S. W. 113, 30 L. R. A. (N. S.) 1206, declared that where a railroad company furnished an employs with a physician, the railroad company would' not be held liable for the physician’s negligence, unless, in treating the eniployé, he was the agent of the railroad company. No more can plaintiff in error be held liable for Dr. Hardin’s negligence or lack of skill, in the absence of facts to establish that Dr. Hardin was acting as the agent of plaintiff in error when he was treating defendant in error’s wife.

From the very nature of the employment, the physician who takes the place of another must, while he alone is treating the patient, exercise his own judgment and his own skill; and he is truly an independent contractor.

In the leading case of Cunningham v. Railroad Co., 51 Tex. 510, 511, 32 Am. Rep. 632, it is said:

“The true test * * * by which to determine whether one who renders service to another does so as a contractor or not is to ascertain whether he .renders the service in the course of an independent occupation, representing the will of his employer only as to the result of the work, and not as to the means by which it is accomplished. Shear. & Red. on Neg. §§ 76-79; 1 Red. on Railways, 505; Pack v. Mayor of City of New York, 4 Seld. [8 N. Y.] 222. It is now the well-established doctrine in Europe, and the generally prevailing rule in this country, that the ordinary relation of principal and agent and master and servant does not subsist in the case of an independent employé or contractor who is not under the immediate direction, of the employer.”

The doctrine is reaffirmed in Cunningham v. Moore, 55 Tex. 377, 40 Am. Rep. 812, in this language:

“It is a well-settled principle, founded on reason and supported by abundant authority, that the relation and liability of master depends upon the right of control over the servant.”

This court said in Wallace v. Southern Cotton Oil Co., 91 Tex. 21, 40 S. W. 399:

“If Davis was an independent contractor in the sense that the company had no right of control as to the manner in which the work was to be done, then he was not the servant of the company; and the plaintiff, having been employed by him, cannot recover. Cunningham v. Railway, 51 Tex. 509 [32 Am. Rep. 632].”

The law applicable to the liability of one medical practitioner for the acts of another, who undertakes to look after the former’? patients, and the reason therefor, is well condensed in De Forrest v. Wright, 2 Mich. 369 370, as follows:

“To hold that every person, under all circumstances, would be responsible for injuries committed by another person while employed in his behalf involves an absurdity no one would countenance. It would create a penalty from which few could escape; for every man is or ought to be directly or indirectly, nearly or remotely, engaged in the service or on behalf of his fellow man. But from an examination and comparison of the adjudged eases, the rule now seems very clearly to be this: That where the person employed is in the exercise of an independent and distinct employment, and not under the immediate control, direction, or supervision of the employer, the latter is , not responsible for the negligence or misdoings of the former.”

The case last cited was followed by the New Jersey Court of Errors and Appeals in Myers v. Holborn, 58 N. J. Law, 193, 33 Atl. 389, 30 L. R. A. 345, 55 Am. St. Rep. 606, on facts very similar to those of this case, the court saying:

“The principal facts- which were proved at the trial of the cause are as follows: The defendant, a practicing physician of the city of Bayonne, promised the plaintiff, who resided in that city, to attend his wife professionally during her confinement. A short time before that event took place he left the city for a three days’ vacation; having first visited the wife of the plaintiff, and made an examination of her condition, from which he concluded, as he informed her, that his services would not be needed for a few days. Before his return, however, she was confined. The plaintiff, when his wife’s travail came on, telephoned to the house of the defendant for him to come at once; and in response to this message one Dr. P. arrived, stating that Dr. Myers was out of town, and that he represented him, and proceeded to take charge of the case, and to deliver the plaintiff’s wife of her child, without any objection being made. It was not suggested that his treatment of the wife was unskillful, but evidence was offered to show that after the birth of the child he improperly severed the umbilical cord so close to its body that it was impossible afterwards to tie it, and that the child consequently died, in a short time, of umbilical hemorrhage. The shock caused by her child’s death under these circumstances, it was testified, so affected the mother as to seriously injure her health, and render her an invalid for many months, thereby depriving the plaintiff of her services and companionship, and making it necessary for him to incur expenses which he would not otherwise have been called upon to meet; and this suit was brought to recover compensation for such loss of services and companionship, and for such expenses, on the theory that Dr. P. was the agent and representative in this matter of the defendant, and that therefore he was legally liable for these results of Dr. P.’s unskillfulncss. The trial judge adopted this theory, advanced on behalf of the plaintiff, in his charge to the jury, and so instructed them. In this, it seems to me, there was an error. Dr. P. and the defendant were each of them practicing physicians of this state, having no business connection with one another, except that Dr. P. was attending the patients of the latter while he was temporarily absent. Even if it be admitted, therefore, that Dr. P. was employed by the defendant to attend upon the wife of the plaintiff, that fact did not render the defendant liable for his neglect or want of skill in the performance of this service, for an examination of the authorities will show that a party employing a person who follows a distinct and independent occupation of his own is not responsible for the negligence or improper acts of the other. Laugher v. Pointer, 5 Barn. & C. 547; Milligan v. Wedge, 4 Perry 6 D. 714; De Forrest v. Wright, 2 Mich. 368; Wood, Mast. & S. § 311.”

In the light of the long-established custom among the Dallas doctors for a doctor unable to treat all his patients, to send another doctor to those he is not able to attend, we do not think that plaintiff in error’s statements that he expected to take care of this case, and that it would be a partnership casé, can be reasonably construed otherwise than as meaning that plaintiff in error expected to resume charge off the case when his other engagements would permit, and that he expected Dr. Hardin to be compensated for the services he would render, while plaintiff in error would be compensated for the services he would render. In discussing the effect of a division of service between physicians, Ruling Case Law says:

“They may make such division of service as, in their ■ honest judgment, the circumstances may require and each, in serving with the other, is rightly held answerable for his own conduct, and as well for all the wrongful acts or omissions of the other which he observes and lets go on without objection, or which in the exercise of reasonable diligence under the circumstances he should have observed, but beyond that his liability does not extend. Einally, it seems that a physician or surgeon may, on leaving town or in other Case of need, recommend or employ another physician or surgeon to treat a patient for him, and in the absence of negligence in such selection will not be liable for the negligence or lack of skill of the substitute practitioner.” 21 R. C. L. pp. 394, 395.

Given the most favorable interpretation to defendant in error, in determining plaintiff in error’s responsibility for the alleged negligence and lack of skill of Dr. Hardin, the facts of this record disclose nothing further than an undertaking by plaintiff in error to furnish another physician, whose work, in the absence of plaintiff in error, was necessarily entirely free from his control. And, as said by the Ohio Supreme Court in Railway Co. v. Kessler, 84 Ohio St. 79, 95 N. E. 511, 36 L. R. A. (N. S.) 53, Ann. Cas. 1912B, 934:

“It is not the law that one who contracts to furnish or pay for medical or surgical aid and attention to another is liable at all events for the mistakes or incompetency of the physician or surgeon he may employ for that purpose. There must be some neglect or carelessness or. misconduct on his part in the performance of his obligations arising under such contract. If he act in good faith and with reasonable care in the selection of the physician or surgeon, and has no knowledge of the incompetency or lack of skill or want of ability on the part of the person employed, but selects one of good standing in his profession, one authorized under the laws of this state to practice medicine and surgery, he has filled the full measure of his contract, and cannot be held liable in damages for any want of skill or malpractice on the part of the physician or surgeon employed.”

In our opinion, there was no error in the charge of the court, nor in the refusal of the charges requested, and, finding no other reversible error in the record, it is ordered that the judgment of the Court of Civil Appeals he reversed, and that the judgment of the district court be affirmed. 
      tf&soFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     