SUPPLEMENTAL OPINION ON DENIAL OF REHEARING
NOVEMBER 12, 1990
798 S.W.2d 438
1. Pleading — allegation of complaint not specifically denied is taken as admitted. — An allegation of a complaint not specifically denied is taken as admitted.
2. Physicians & surgeons — master/servant relationship. — When it is shown that the person causing the injury was, at the time, rendering a service for the defendant and being paid for that service, and the facts presented are as consistent with the master/servant relationship as with the independent contractor relationship, then the burden is on the one asserting the independence of the contract to show the true relationship of the parties; where the testimony showed that the deceased saw whichever doctor was on duty at the clinic at the time of his visit and that all of the records of the clinic relative to the deceased bore only the clinic letterhead and all billing and payment were between the clinic and the patient, the factual issue was brought within this rule.
Petition for Rehearing; denied.
Friday, Eldredge & Clark, by: C. Tab Turner, for appellants.
Charles Hicks, for appellees.
Sam Ed Gibson, Special Justice.In its petition for rehearing Medi-Stat insists that our opinion of July 9, 1990, affirming the judgment awarded against the appellants, overlooks the appellees’ failure to produce “any evidence at trial that Medi-Stat exercised control over the physicians in hiring and firing, the setting of work schedules and salary, the right to select the patients to be treated, or the method of treatment.”
We recognize that the emphasis of our opinion was given to a discussion of the cases of Runyan v. Godrum, 147 Ark. 481, 228 S.W. 397 (1921), and Arkansas Midland R.R. Co. v. Pierson, 98 Ark. 399, 139 S.W. 917 (1908), but that was because the primary thrust of appellant’s argument, in reliance on those cases, was that medical doctors cannot be employees as a matter of law so as to give rise to vicarious liability under the doctrine of respondeat superior. We examined that issue and considered it in depth in our earlier opinion. We will not reexamine it here.
Appellant did argue that appellees failed to meet their burden of proving that Dr. Eades was the agent or employee of Medi-Stat (citing AMI 207) and to directly answer that argument, we issue this supplemental opinion.
Appellant asserts that appellees’ complaint alleged that Medi-Stat was the employer of, and vicariously responsible for, Dr. Eades and that Medi-Stat denied that Dr. Eades was the employee of Medi-Stat. We do not find that to be so. Paragraph one of the complaint alleges that, “The defendant, Dr. Michael Eades, at all times relevant hereto, was a licensed practicing physician working as an agent or employee for Medi-Stat Medical Clinic, Inc., an Arkansas Corporation.” The answer nowhere specifically denies that allegation. The only relevant response reads, “The defendants admit that Dr. Michael Eades was a licensed practicing physician working at Medi-Stat Medical Clinic, Inc., an Arkansas Corporation.” An allegation of a complaint not specifically denied is taken as admitted. Meek v. U.S. Rubber Tire Co., 244 Ark. 359, 425 S.W.2d 323 (1968). Rule 8(b) of the Arkansas Rules of Civil Procedure reads in part:
A party shall state in ordinary and concise language his defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If he is without knowledge or information sufficient to form a belief as to the truth of an averment, he shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part or a qualification of an averment, he shall specify so much of it as is true and material and shall deny only the remainder.
Even if it could be said the agent/employee issue was joined by the pleadings, we think Ms. Kusturin’s testimony that Timothy saw whichever doctor was on duty at the clinic at the time of his visit and that all of the records of Medi-Stat relative to Timothy Cowan bear only the Medi-Stat letterhead and all billing and payment were between Medi-Stat and the patient, brought the factual issue within the purview of Schuster’s Inc. v. Whitehead, 291 Ark. 180, 722 S.W.2d 862 (1987):
[W]hen it is shown that the person causing the injury was, at the time, rendering a service for the defendant and being paid for that service, and the facts presented are as consistent with the master/servant relationship as with the independent contractor relationship, then the burden is on the one asserting the independence of the contract to show the true relationship of the parties. 722 S.W.2d at 864.
This disputed issue, it should be remembered, arises from the denial of Medi-Stat’s motion for a directed verdict on the ground that there was no evidence that Eades was the agent or employee of Medi-Stat. In Phillips Cooperative Gin Co. v. Toll, 228 Ark. 891, 311 S.W.2d 171 (1958), we said:
The rule is well established that where fairminded men might honestly differ as to the conclusion to be drawn from facts, whether controverted or uncontroverted, the question should go to the jury. St. L.I.M. & S. Ry. Co. v. Fuqua, 114 Ark. 112, 169 S.W.786. It is also well established that it is proper to direct a verdict for the defendant only when, under the evidence and all reasonable inferences deducible therefrom the plaintiff is not—under the law—entitled to recover. Wortz v. Ft. Smith Biscuit Co., 105 Ark. 525, 151 S.W. 691.
The petition for rehearing is denied.
Glaze, J., dissent. Turner, J., not participating.