The decision made in this case on appeal does not overrule certain general principles which must be considered in cases of this character. It seems to me that it is error to hold Dr. Komasinski liable in this case. The evidence is that he had never treated a fracture similar to the one disclosed by the X rays. After a number of X rays had been taken, he concluded "I felt that we should have another opinion on the reading of the X rays and the treatment necessary for the type of fracture it was. That was on November 30, 1946." He then referred the matter to Dr. Bump with Mrs. Morrill's consent. He chose Dr. Bump "because I felt that his experience in this type of fracture was greater than mine and that he would be able to treat it in a much better way than I would be able to." There is no claim whatsoever that he was in any way negligent in procuring or recommending the services of Dr. Bump. There is no question that Dr. Bump is recognized as a surgeon of ability in cases of this kind. There is no evidence tending to show that Dr. Komasinski was guilty of any want of care while present at the time the cast was placed on plaintiff, or that he was negligent in carrying out Dr. Bump's instructions for subsequent care. I submit, therefore, that this case is ruled byMayer v. Hipke (1924), 183 Wis. 382, 197 N.W. 333.
It is evident that both Komasinski and Mrs. Morrill placed their reliance on Dr. Bump, and it seems clear to me from the evidence that Dr. Bump assumed responsibility for the treatment, including the diagnosis and putting on the cast. Dr. Komasinski made it plain that he did not want Mrs. Morrill to rely on his judgment and, with her consent, he appealed to Dr. Bump. It appears from the record that some time before Mrs. Morrill had had a fracture and had been attended by Dr. Bump. She told Dr. Komasinski that it was entirely satisfactory to her that Dr. Bump should be called in. The majority opinion holds Dr. Komasinski jointly liable. He did continue to see Mrs. Morrill after the cast was put on, *Page 428 but it appears that he was following Dr. Bump's instructions in her care. In view of such evidence I do not see how Dr. Komasinski can be held liable under the rule of the HipkeCase.