28 A.D.2d 592 | N.Y. App. Div. | 1967
Lead Opinion
Concurrence Opinion
I concur in the result and in the expression of the majority’s views generally and write only to emphasize my thought that the minority memorandum appears to depend in large part on a distinction far greater than seems to me warranted between the corporate defendant and its component school. The latter was not, so far as the record discloses, a separate legal entity; it was, in the words of respondent’s brief, “ operated * * * by the defendant-appellant”; and, having in mind the incalctilable harm that any careless or otherwise incompetent worker in the hospital proper could wreak, I find incredible the suggestion or inference that the administrative officers of the corporate defendant did not have complete and undivided authority over and control of the student nurses, generally and as respected their selection and employment and their discharge, thus firmly establishing employment status. The other applicable tests demonstrate the same result. Herlihy, J., dissents and votes to affirm, in the following memorandum: The majority are reversing a verdict of the jury and dismissing the complaint as a matter of law. In .this posture of the action the plaintiff is entitled to the most favorable version of the evidence and the reasonable inferences flowing therefrom. While the court would appear to be deciding the issue limited to the facts in the present case, the legal principles it proclaims are such as to deny a student nurse any common-law rights and, it might be argued, of sufficient vitality and broadness as to deny recovery in any similar student relationship. The majority bottoms its opinion upon two factors relating to the master and servant doctrine in reaching its conclusions. (1) It determines that the plaintiff was acting under the direction of a hospital nurse and, therefore, under the control of the hospital. Coneededly there must be a close inter-relationship between a hospital and its nursing school, all within the same compound. In order to qualify for graduation the necessity of practical training in the intricacies of the profession is a major part of the training course. From the present record, the jury was entitled to find that the control