Dissenting Opinion by
Mr. Justice Pomeroy:While I agree in general with the legal principles set forth in the Court’s opinion, including the applicability of §226 of the Restatement (Second) of Agency, I must dissent from its conclusion that a new trial of the claim against the hospital must be had.1
*255The negligence charged to the Hospital in the plaintiffs’ complaint was of three sorts: the employment of unqualified, untrained and careless personnel for work in the operating room; the failure to set up adequate safeguards and precautions to prevent the leaving of clamps in a patient’s body; and the failure of the hospital employees in attendance to inspect the situs of the operation and malee certain that no clamps or other foreign objects were left in the patient’s body. No evidence was introduced to show the Hospital’s neglect in these areas, except that it had in force no rule or policy as to clamp counts, and that its intern and two *256nurses in attendance did not in fact make a clamp count; but there was no evidence to indicate that the Hospital had any right to control either the application or the removal of the clamps while the doctor was performing the operation, or that its employees were in any way under the control or direction of the Hospital during the operating procedure. On the facts proved, therefore, the only issue of negligence of the hospital was whether it should have had in force a practice, policy or procedure which would require one or more of its employees to make a count of all surgical instruments used in the operation. The Court’s opinion overlooks the fact that this issue was discussed at length and was put to the jury by the trial judge several times in his charge:
“. . . the only duty of the hospital in this particular instance would be to use the care of an ordinary reasonably prudent person to provide guidelines for the conduct of operations of this character in its operating facilities, and whether it did or did not do that is for you to determine in passing upon the question of negligence of the hospital.”
“If in your judgment, in the exercise of reasonable care, the Board of Directors should have established guidelines regardless of what other bodies provide, then you could well find the defendant Hospital negligent in failing to have laid down such a guideline, which would require even the operating surgeon to comply with.”
It is also to be noted that although no points for charge were submitted by appellants (other than a point for binding instructions) they did request a special verdict as to the duty of the Hospital to require an instrument count by its employees. This request *257was accepted by the court, and the jury found no negligence in the failure to have such a requirement.2
It is true, as the Court’s opinion indicates, that appellants exempted to the court’s failure to charge on the general proposition that hospital employees can be the servants both of an operating doctor and a hospital, with possible resultant liability on both, but the court’s failure to do so was not prejudicial error under the proof in this case.3 While the trial court’s statement of the so-called “captain of the ship” doctrine was perhaps broader than necessary or proper,4 it did not rule out a finding of hospital negligence on the only theory warranted by the evidence; it was the jury, not the court, which held the hospital not liable.5 For the *258reasons indicated, I would affirm the order of the Superior Court.
Mr. Chief Justice Jones joins in this dissenting opinion.I also have grave doubt as to the propriety of the mandate contained in the opinion of the Court, which limits the scope of the new trial to the issue of liability. The result of this limitation, if liability is found as to the hospital, is to foist upon it the dollar *255amount of the verdict which another jury found in favor of the plaintiffs against another defendant. It is true, of course, as the Court states, that the plaintiffs “should not be denied their verdict [against Dr. Wagner] because a new trial is granted as to the other alleged tortfeasor”. The verdict against Dr. Wagner, who has not appealed, remains intact, and our eases have uniformly so held. See, e.g., Soltan v. Shahboz, 383 Pa. 485, 493, 119 A.2d 242 (1956). Cf. Frank v. W. S. Losier & Co. Inc., 361 Pa. 272, 278, 64 A.2d 829 (1949). But it is quite another thing to say that a defendant who has been exonerated by one jury in an earlier trial must, if found liable on a new trial, be “stuck” with a verdict that jury has returned against another defendant. My limited research has disclosed only one case in which our Court has sanctioned such a procedure. Ratcliff v. Myers, 382 Pa. 196, 113 A.2d 558 (1955). In that case Mr. Justice (later Chief Justice) Charles Alvin Jones, joined by Mr. Justice Chidsey, dissented, asserting that this procedure was a deprivation of property without due process of law with respect to the defendant faced with the new trial. 382 Pa. at 206. If the verdict in the present case against the doctor had been deemed by the plaintiffs to have been on the low side, they would be the first to assert that a new trial as to a co-defendant should be plenary. (It is to be noted that prior to trial the claim against Dr. Wagner had been settled for $14,000, and a joint tortfeasor release taken; the aggregate verdict was $37,500.) As it was, appellants’ proposal for a restricted new trial was presented in a “by the way” fashion in the “conclusion” portion of their brief, and was not responded to by appellees. I therefore do not pursue the matter further in this dissent
The special question was: “Was the Pittsburgh Hospital Association. negligent for failing to have in effect on September 5, 1963, a rule or regulation requiring a count to be made of all medical instruments in the operating room, prior to terminating the colectomy operation on September 5, 1963 in this case? Yes or No.” [Answer] “No.”
Judge McKay, the trial judge, acknowledged that “as an abstract legal treatise on the whole subject it [his charge] failed to cover possibilities of other situations that did not prevail at the trial,” but stated that “. . . it is not the function of a trial judge to dissert at length on possible situations not related to the case at bar.” I agree.
The scope of that doctrine has been most recently expressed by Chief Justice Jones in speaking for the Court in Thomas v. Hutchinson, 442 Pa. 118, 275 A.2d 23 (1971): “the ‘captain of the ship’ doctrine imposes liability on the surgeon in charge of an operation for the negligence of his assistants during the period when these assistants are under the surgeon’s control, even though the assistants are also employees of the hospital. Stated differently, the ‘captain of the ship’ concept is but the adaptation of the familiar ‘borrowed servant’ principle in the law of agency to the operating room of a hospital.” 442 Pa. at 125.
I disagree with the comment in the majority opinion that because of the doctrine of charitable immunity, the issue of hospital liability was academic before the decision in Flagiello v. Pennsyl*258vania Hospital, 417 Pa. 486, 208 A.2d 193 (1965). Not all hospitals were or are charities, and claims of immunity were honored only where they were asserted. The opinion of the Court recognizes, indeed, that Justice (later Chief Justice) Steen’s formulation of “captain of the ship” rule in McConnell v. Williams, 361 Pa. 355, 65 A.2d 243 (1949) was directed to the liability of the physician; it did not exclude joint liability of another person, including a hospital.