While performing a surgical operation on a colored employee of appellant at the Baptist State Hospital on October 7, 1927, and while removing all enlarged and infected gland from the inguinal region or groin of said employee, the late Dr. J. P. Runyan punctured said gland or it was caused to burst and the fluid or exudate therefrom was thrown upon him and appellee, some of which struck her in the left eye. Appellee's eye became infected therefrom calling the loss of said eye, and said infection caused her to undergo other serious and painful operations, as well as the removal of said eye, from which she suffered intense pain. Her personal appearance has been greatly marred because thereof.
Appellee sued Dr. Runyan and appellant for damages, alleging that both were in the employ of appellant — she as head nurse in said hospital and as an assistant to him, and he as head surgeon. She alleged negligence on the part of Dr. Runyan and appellant in failing to warn her of the infectious condition of said gland, and that Dr. Runyan carelessly and negligently cut into said gland and ruptured it without warning her that he intended to do so and without first ascertaining whether it was infected. Later appellee amended her complaint as follows: "It is stated in the complaint, and the first amendment thereto, that all infected gland in the lower right abdominal region of Wilson Cobbs was carelessly and negligently cut into, or ruptured, by the defendant, Dr. J. P. Runyan, while using a surgical instrument, *Page 585 resulting in a quantity of pus and infected tissue from the gland flying into the left eye of plaintiff and injuring same. This is, in part, erroneous. At the time the infected gland was ruptured, or torn, Dr. J. P. Runyan did not have in his hand a surgical instrument. The infected gland was carelessly and negligently ruptured, or torn, by the defendant, Dr. J. P. Runyan, while attempting to remove the infected gland with his hands and fingers, and without the use of a surgical instrument.
"At all times mentioned in the complaint, and amendments thereto, the defendant, Dr. J. P. Runyan, was a careless, incompetent, negligent and all unskillful physician and surgeon. At all times mentioned in the complaint, and amendments thereto, the defendant, the Chicago, Rock Island Pacific Railway Company, knew, or by the exercise of ordinary care, could have known that the defendant, Dr. J. P. Runyan, was a careless, incompetent, negligent an unskillful physician and surgeon." These latter allegations of negligence were denied by Dr. Runyan and appellant. The case went to trial on these issues alone and was submitted to the jury, first, on the negligence of Dr. Runyan in the performance of said operation, and, second, on the negligence of appellant in employing a "careless, incompetent, negligent and unskillful physician and surgeon"; that appellant knew or by the exercise of ordinary care could have known Dr. Runyan to be "a careless, incompetent, negligent and unskillful physician and surgeon."
It becomes unnecessary to discuss the alleged negligence of Dr. Runyan in performing the particular operation, although, if he were free from such alleged negligence, no recovery could be had against either, no matter what his general reputation may have been or the knowledge of appellant with reference thereto. I assume, for the purpose of this opinion, that Dr. Runyan was negligent as alleged, and that the evidence thereof is sufficient to support the verdict against him, although, in my opinion, there was no such substantial evidence. Assuming, however, that he was negligent in this particular operation, what is the measure of appellant's liability? It is undisputed in this record that appellant did not own *Page 586 the Baptist State Hospital, nor was it operating it, nor was it engaged in rendering hospital facilities and the services of physicians, surgeons and nurses to its sick and injured employees for profit. A small deduction was made by it from the wages of employees, which went into a hospital fund, for furnishing the facilities and services above mentioned to its employees. Under such circumstances, it has been the settled law in this State, since the decision of this court in Arkansas Midland Railroad Co. v. Pearson, 98 Ark. 399, 135 S.W. 917, that a "railroad company that assumed gratuitously to collect and preserve such fund and provide hospital accommodations and competent physicians and surgeons to operate it, without any profit or gain or hope thereof therefrom, should not be required to pay damages for such negligence or malpractice, it being no part of its business under its charter to maintain a hospital. At mast, it can only be considered a trustee for the proper administration and expenditure of such fund, and should be held only to ordinary care in the selection of competent and skillful physicians to administer relief and provide attention to sick and injured employees." It was there further said that: "A physician cannot be regarded as an agent or servant in the usual sense of the term, since he is not and necessarily cannot be directed in the diagnosing of diseases and injuries and prescribing treatment therefor, his office being to exercise his best skill and judgment in such matter, without control from those by whom he is called or his fees are paid." See also Runyan v. Goodrum, 147 Ark. 481, 228 S.W. 397.
Counsel for appellee recognize this to be the law in this State and based their cause of action against appellant on the ground that it employed a careless and negligent physician in Dr. Runyan, and that it either knew he was a careless and negligent physician and surgeon, or by the exercise of ordinary care could have known it; and in instruction No. 1, given by the court at their request, the only hope expressed on which to hang a verdict against appellant is the same basis. Said instruction follows: "1. If you find, from a preponderance of the evidence that the plaintiff, Mrs. Sue Britt, *Page 587 while assisting Dr. J. P. Runyan perform a surgical operation, and, while in the exercise of ordinary care for her own safety, was injured, and that Dr. J. P. Runyan, in performing the surgical operation, negligently failed to warn plaintiff that he intended to dissect the gland or tissue, and that both plaintiff and Dr. J. P. Runyan were, at the time the operation was performed, in the employ of, and performing duties required of them by, the defendant, the Chicago, Rock Island Pacific Railway Company, and that before and at the time the operation was performed, Dr. J. P. Runyan was a careless, negligent, and an unskillful surgeon, and the defendant, the Chicago, Rock Island Pacific Railway Company, at, and before, the time the operation was performed, knew or, by the exercise of ordinary care could have known, Dr. J. P. Runyan was a careless, negligent, and an unskillful surgeon, and that the defendant, the Chicago, Rock Island Pacific Railway Company, negligently failed to use ordinary care in selecting, employing and retaining in its employ, Dr. J. P. Runyan, as a surgeon, and that the negligence of Dr. J. P. Runyan, if any, and, also, of the defendant, the Chicago, Rock Island Pacific Railway Company, if any, was the proximate cause of the injury, if any, sustained by the plaintiff, then your verdict will be for the plaintiff, unless you should find the plaintiff, Mrs. Sue Britt, was guilty of contributory negligence or assumed the risk, as defined elsewhere in these instructions."
What are the facts on which this instruction is based? No witness testified that Dr. Runyan was in fact "a careless, negligent and an unskillful surgeon." Dr. Samuel G. Boyce, of Little Rock, said that Dr. Runyan had a general reputation in Little Rock of being careless and negligent. Mrs. Routh said that he was so considered. One witness testified that he was employed by appellant as switchman for a few months in the latter part of 1925, and that he had heard some of the employees say Dr. Runyan was careless and negligent — hard to find when he was wanted; that he saw a petition signed by 20 or 25 employees to have Dr. Runyan removed as chief surgeon, but he refused to sign it. Dr. L. M. Sipes, *Page 588 pastor of the Pulaski Heights Baptist Church testified that Dr. Runyan was a good physician and surgeon, but mixed up in too many things. On the other hand, a large number of eminent physicians of Little Rock testified to the high standing and good reputation of Dr. Runyan as a physician and surgeon. No witness testified to any actual knowledge of appellant of his alleged negligence, carelessness or unskillfulness. The chief surgeon of appellant in Chicago, Dr. Plummer, who is in charge of the hospital department and who employed Dr. Runyan and appellee, testified positively that he had no knowledge of the charges; that Dr. Runyan had the reputation of being a skilled surgeon, had been chief surgeon for appellant at Little Rock for nearly 30 years at the time of his death; that he had never heard of the petition to remove him; that Dr. Runyan frequently attended meetings of district surgeons in Chicago, made addresses and read papers at said meetings; that he had visited Dr. Runyan's hospital in Little Rock, also the Baptist State Hospital, had observed his work, seen his equipment and knew his reputation to be that of a competent and skillful surgeon; that he had received no complaints as to his ability or competency or carefulness with his surgical work.
Now, the only duty imposed by law on appellant in this regard was to exercise ordinary care to select a capable, competent and skillful surgeon, or in keeping such a one in its employ. Ark. Midland Rd. Co. v. Pearson, supra; St. L., I. M. S. Ry. Co. v. Taylor,113 Ark. 445, 168 S.W. 564. Of course, if appellant knew or by the exercise of ordinary care should have known him to be incompetent, then appellant would be liable. It did not in fact so know. Should it have so known, exercising ordinary care? Although a petition was circulated in 1925, two years prior to appellee's injury, no witness testified as to what became of this petition. It may have been destroyed. It was not sent to Dr. Plummer, and, so far as this record discloses, it was not brought to the attention of any official of appellant. I cannot agree that the evidence of Dr. Boyce and the other lay-witnesses mentioned is sufficient to make a *Page 589 question for the jury as to whether appellant should, in the exercise of ordinary care, have known of the bad reputation given him by such witnesses. Such knowledge must have been brought home to appellant, or such a notoriously bad reputation must have been established that a person exercising ordinary care must have known about it, or at least such a reputation as would justify the jury in inferring the fact of knowledge. The case of St. L. S.W. Ry. Co. v. Webb, 170 Ark. 1089,282 S.W. 966, has no application here for in that case "it is pointed out that it is not charged that these doctors were lacking in skill or that they were negligent in their capacity as surgeons," which is the whole basis of this lawsuit, assuming Dr. Runyan to have been negligent.
But the majority opinion is based on the doctrine of respondeat superior, — that the relation of master and servant existed between appellant and Dr. Runyan. In the opinion it is said: "There was considerable testimony as to whether the appellant was negligent in employing or retaining an incompetent surgeon. It is not necessary to set out this testimony because, as we understand the law, if the operation was negligently performed and this negligence caused the injury, the appellant is liable without regard to whether the appellant exercised care in the selection or retention of the surgeon, the sole question being, whether he was negligent in the operation and whether this negligence caused the injury complained of."
It is difficult to understand how the majority can make use of such language, since the only action of negligence on the part of appellant relied on and submitted to the jury is that already quoted in the amendment to the complaint and in instruction No. 1 heretofore set out in full. Appellee did not submit to the jury her right to recover from appellant on the sole ground of Dr. Runyan's negligence in the performance of the operation, but the only instruction asked or given for appellee required the jury to find, in addition to the negligence of Dr. Runyan, that appellant was negligent in the employment of a careless and unskillful surgeon. Now, since appellee based her cause of action against appellant on *Page 590 this sole ground and submitted same to the jury on this sole ground, she ought to be required to stand or fall by the same ground in this court.
It seems to me the majority have overruled the cases of Ark. Midland Railroad Co. v. Pearson and Runyan v. Goodrum, supra, although an attempt is made to distinguish them. In doing so, it is said in this case there is no evidence that appellant "gratuitously assumed to collect and preserve a fund therefrom to provide hospital accommodations and medical attention without gain or profit." In my opinion the evidence is undisputed that such is the fact. The witness Blessing testified that the hospital association got its funds from the employees from deductions from their salaries made by the railroad company, the amount of deductions being dependant on the occupation the employee was in as it does at the present time. The money thus collected was paid out on the order of the chief surgeon, and that the Rock Island did not charge anything for handling the fund. Dr. Plummer testified that he had been connected with the Rock Island Hospital Association since 1902; that the fund for the association was collected from the old C. O. G. Railroad employees just as it is now by deductions once each month from salaries and wages of employees of appellant; that he has administered the fund since 1916; that Mr. Shonlou, his assistant, attended to the details; and that his salary was not paid out of the hospital fund, but was paid by appellant, but that a portion of Shonlou's salary, $75 per month, was paid out of said fund. Shonlou testified that Dr. Runyan and associates, known as Baptist State Hospital Clinic, which included appellee, were paid $401.50 per month, of which $162.75 was paid by appellant and $238.75 paid by the hospital association. This testimony was not disputed. It shows unequivocally that appellant not only made no charge for collecting and handling the fund for the Employees Hospital Association, but paid a substantial portion of the expense of its operation out of its own funds. I am therefore of the opinion that the rule announced in Arkansas Midland Railroad Co. v. Pearson, *Page 591 supra, is controlling and should be followed or the case overruled.
In Runyan v. Goodrum, 147 Ark. 481, 228 S.W. 397, the same question was involved. This court there held "that the relation of master and servant cannot exist between physicians and surgeons who are not X-ray specialists themselves and the X-ray special or Roentgenologist, whom they employ to assist them in the diagnosis and treatment of diseases." The case of Ark. Midland Railroad Co. v. Pearson was cited and quoted from with approval, as also the cases of Keller v. Lewis,65 Ark. 578, 47 S.W. 755, and Norton v. Hefner,132 Ark. 18, 198 S.W. 97, the following being quoted from the latter case: "This view of the law is based upon the theory that the doctrine of respondeat superior applies only in case of the negligence of a servant who acts under the direction and control of the master (De Forrest v. Wright, 2 Mich. 368), and does not apply to a physician or other professional man who, when employed, acts upon his own initiative without direction from others." In that case, Norton v. Hefner, Dr. Norton performed all operation on Hefner's wife and arranged with a young physician at the hospital to look after the patient until she recovered. Hefner sued Dr. Norton for damages for the alleged negligence of the young physician whom he had left in charge of the patient. In addition to the language last above quoted, the court said: "Appellant (Norton) was not guilty of negligence in the performance of the operation, nor in the selection of a physician to continue the treatment after he left the city. Not being negligent in these respects, he cannot be held responsible for the negligence of the other physician who was left in charge merely because the other physician took charge on his suggestion and arrangement."
I am therefore of the opinion that the above cases demonstrate that the relation of master and servant did not exist between appellant and Dr. Runyan, and that the doctrine of respondeat superior cannot apply in this case, even though Dr. Runyan may have been negligent in performing the operation. *Page 592
I respectfully dissent, and am of the opinion the case should be reversed and dismissed. I am authorized to say that Mr. Justice SMITH and Mr. Justice BUTLER concur in the views here expressed.