*1 Works. Smith v. Chemical good right bnt he has no to make an faith, he acts merely to one creditor the means indebtedness placing surplus securing that creditor his beyond property security over and the hands of put beyond way as to reach such creditor such delay other or so as to hinder creditors them may prefer their lawful And while debtor actions. right delegate right no he has to one creditors, his upon power of his and confer creditors such creditor among to discriminate the other creditors the distri- surplus placed bution of the hands. will his The law pérmit bay debtor to thus hold creditors at fully having while his chosén satisfied creditor, himself, compels compromise the other creditors to their claims pleasure. necessary consequence and await Ms arrangement delay such an is to and hinder other cred- surplus, clearly itors as the stat- designed prevent ute was and thwart.” judgment It follows the be reversed and the should judgment cause with directions to enter remanded, for plaintiff. opinion foregoing PER CURIAM:—The Biggs, adopted opinion judgment
C., is as the the court. The accordingly of the circuit court is reversed and the cause remanded with recommended directions as Com- Danes, missioner. concur. Allen, J., JJ., P. Becker and , Respondent VIOLA MALLINCKRODT SMITH, Corporation, CHEMICAL and OTTO L. WORKS, Appellants. ROHLFING, Opinion April Appeals.
St. Louis Court of Filed 1923. ' Physician: Negligence: 1. PHYSICIANS AND SURGEONS: Master’s Diagnosis Eye: Incorrect and Treatment of Evidence: Sufficient to Negligence. damages by Establish Case of action In an an em- against ployee injuries employer physician and its to her employer’s physician eye, evidence that her undertook to TEEM, MAECH
Smith v. Chemical been, general practitioner, and was not treat her oculist, with which to instruments and did not have the notwithstanding this, plaintiff’s eye, he undertook examine *2 although symptoms diagnosis treatment, the make a a and advise expert given by plaintiff, in- state would the oculists were retina, yet a mere cold it was dicate a detached he advised examination, eye, the a from the first in and at the end of week condition, eye improved in a worse when the had not but was treatment, gave diagnosis to held and advice as then the same reasonably jury the could conclude that from such evidence the generally physician exer- did use care and skill which the community. ordinary by physicians care and skill in cised Negligence: Respondeat Superior: 2.MASTER AND SERVANT: Liability. Providing Physician: an Master Unskilled em- While obligation ployer furnish to an is under no to medical services employee, yet to do it was his where he undertake so selecting reasonably physician to a skilled use reasonable in perform the service. Physician Attending -: 3.-: -: Provided Master Employee: Acting Scope Employment. Fellow Within In an ac- employer damages by employee against tion and a for an injuries physician eye negligent diagnosis for to her due employ employer, physician and treatment of her physician a clerk and that evidence that knowledge employer advantage medical and used took of his employees physician furnishing medical him a to its attend- jury injuries, minor from such evidence the ance eases of held finding physician treating plaintiff were warranted (cid:127) employee acting scope within the of his as an of the company. fendant Physician’s Neg- 4. -- — : -:-:-: Master Liable for injured ligence. employee’s employer an and Where employee employer, provided physician, plaintiff’s a an wrong diagnosis improper plaintiff’s eye, gave a treatment physician in treat- and such accordance with such acting scope employment, employer ment was within the discharge liability by merely employing competent did not doctor, go treat in a it must further manner negligent patient attended, and is liable for acts of such employer physician, and held under the evidence the was liable negligent employee physician. of its for the acts Physcians Surgeons: Negigence: Employee’s Eye -: Physician: Injured: Providing Master Causal Connection Unskilled Smith, v. Chemical against Sufficiency. In action an Evidence: injuries employer physician the evi- held to her and its concluding jury that as a warrant dence was sufficient plaintiff’s improper diagnosis and treatment result of deprived thereon, had of chance she she was liance progress treatment, securing proper which event cured, may been have arrested or she have been usually connection, negligence, a matter of like the causal facts, case such was the instant and in from other inference determine. Damages: Damages: Injured: Employee’s Eye Excessive -:6. showed Not Excessive. Where the evidence $7500 Verdict injured, suffering known as what she result, verdict was almost blind as “detached retina” excessive. was not $7500 City Appeal of tlie Court St. Louis.— from tlie Circuit *3 Judge. Hogan Granville Hon.
Affirmed. appel- Kirby,
Nagel Paid and Everett & Griffin lants. give refusing
(1) the instruc- Tlie court erred evidence, of demurrer to the offered in the nature tion and renewed at the the close of at close (2) Even if defendant entire case. employed by negligent the defendant as a and was were physician bility only plaintiff, lia- basis on which to treat predicated against that defendant is be could reasonable care the selection did not use allegation peti- physician no of a and there is theory. physician A on such tion nor was case tried Haggerty independent Louis, v. St. contractor. App. (and 426 cases cited R. 100 Mo. & W. K. N. Co., therein); 154 272; Mass. Co., v. Cunard S.S. O’Brien Myers v. Fed. Hol- 365; 60 Artist, R. v. Union Pacific Co. 132 Y. Allan v. S. S. N. 193; Co., 58 L. State born, N. J. TEEM, 1923. 161 MAECH Smith v. Chemical v. 120
91; McDonald Mass.
Mass.
Gen.,
432; McDonald
Hosp.,
v. Mass.
120
432;
Gen.
Eailroad,
Mass.
Secord’v.
Top.
18 Fed. 221; Atch.,
Fe E. E.
v.
& Santa
Zeiter,
Co.
162 y. Smith Chemical Works. Lonnge 508; 222 Co., Mo. 134; v. 178 Mo. Cain
road Co.,
Epperson
Manufacturing
186
Co.,
307;
Mo.
v.
Coranson
Telegraph.
(1)
Rohlfing
L.
not an inde-
Defendant Otto
pendent
contractor hut was
servant
Mal-
of defendant
corporation
Works,
linckrodt
liable
Chemical
upon
negligent performance
for his
him
of the work
called
Croghan
Schwarzenbach,
1027;
to do.
v.
79 Atl.
Phillips
&
v. St. Louis
San Francisco R. R.
211
Co>., Mo.
(2)
419; Jones v.
Co.,
Tri-State
difficult to determine whether one cause proximate plaintiff’s injury, another is the cause of never- they theless it is their to do so. And when have appellate done so, court instructions, Chap- will not interfere. Defendant’s 13; instruction No-. (1911) v. Hicks, lin 2 K. 786; B. Scheurer Co., v. Rubber Seckinger 227 359; Mo. 590; v. 129 Mo. Philibert, Jen- Pennsylvania v. N. v. R., 331; kins Poe, R. 67 J. L. Eicholz Sharp 282; 217 S. 517; W. Railroad, v. Mo-. McDonald v. Railroad, 468; Poumeroule v. Cable App. Storage Fidelity Co-., Co., DeMaet v. Chemical
Smith *6 Telegraph v. Church, Co. Union 615; Western R. Street S. Metro. A. Edison R., R. 57 L. question of (10) the have waived Defendants W. 575. jury support finding sufficiency of the to proximate negligence cause was the of the that They injury. to' issue the submitted that the of preparation. cited own Cases of their instructions under point 3. negligence case. Plaintiff had a ver- BIGGS, C. A claim-, appeal, judgment Defendants and $7500. dict liability ing is under the that -the acts no facts, there defendants, proximately plaintiff’s in- cause the juries, judgment also and excessive. that the Error assigned this based because of the but instructions, non-liability. claim of charges an
Plaintiff that defendant Works; Mallinckrodt defendant Chemical plaintiff was March and while 10, 1915, that on about department packing weighing drugs and while she was en chemicals' duties, discharge employee, gaged in of her eye; thereupon injury left that she suffered said through agent L. defendant, and servant Otto1 diag Rohlfing, attempted make and undertook to eye plaintiff nosis of said and did advise reference with plaintiff that time was to the treatment a thereof; trusting years, age minor under the of seventeen competency agent said and servant and skill diagnosis, give said to make and to said period period submitted thereto and relied thereon for advice, proximately,one month; at the end of said greatly sight eye of said diminished as to be so practically destroyed. charged when defendant is further Mallinck- through Rohlfing,
rodt Chemical said undertook Works, eye diagnosis and to advise her make thereupon with thereof, reference the treatment Works, Chemical became through of said defendant Rohlfing, Rohl- of said said and MANOR TEEM, v. Chemical
Smith diagnosis ordinary care and skill fing exercise eye; given relative to said said advice made and Eohlfing, through make did not said Works, Chemical of said a correct correctly efficiently properly, advise and did treatment of said reference ignorantly, improperly, negligently, carelessly, did so diagnose wrongfully unskilfully the said thereof, to the treatment with reference advise plaintiff thereon, reliance of and destroyed result thereof sight plaintiff’s eye thereof and the lost. generel denial. answer was
Defendants’ Viewing *7 light plain- in a to favorable the evidence considering to do in the our as it is tiff, as whether or prima-facie made, there was a ease following prove facts: Plaintiff at the it tended to years negligence alleged sixteen acts of was' time of the employed age on the floor of a build- fourth of and was depart- packing ing in defendant maintained its twenty-six buildings, some and which was one of ment, plant, being comprising the defendant’s entire weigh Her chemicals medicines. at time to off forelady Kuennan; floor immediate was Miss general forelady Loeb, and the foreman over was Miss superintendents a Mr. Wolfer. The floor was the entire building and Mr. were Mr. Hund Smith. the entire having physician, Eohlfing was a licensed The defendant practice graduating from after 1896, been admitted college. years Por six he was attached some a medical Hospital, surgical and from division of St. John’s to the employed phyisician 1902 he 1898 to as was profession City practiced his He Workhouse. health and when he abandoned because his
to' being profession. In 1910 was his he dissatisfied by later as. order clerk and employed receiving his duties be- what became known clerk, departments ing various and distribute to the to receive by He was chemicals and medicines used the defendant. Smith v. Chemical Works. employed complained
so the time the accident of. employed As packing first such clerk was on the floor of the department building in which working, was and within a short time after he first superintend- he was called foreman and portions plant ent of various to attend to em- ployees required who have been hurt medical or usually attention, of minor such as cuts character, cases period This burns. continued of some three years complained plaintiff. before accident appeared packing that Dr. was called department average on an of about twice a month and, twenty-six buildings this was one of some stated, plant. only the entire He was called direction of the superintendent, slip paper foreman print- and a packing ed and depart- furnished to the foreman of the ment, and when medical attention needed the em- ployees slip give the foreman fill would out the employee, Rohlfing. who would see Dir. No one but the authority department packing foreman had to fill slips. out forelady these Under the custom the quired report any injury any employee to the fore- appeared man. plant superintendent Also it Rohlfing’s seek would advice as to what should employees required be done with medical attention; appeared keep that Dr. would sometimes the ployee and attention until the em- *8 super-
had recovered, which was fact known to the At intendent. one he took care of Mrs. Ruff, time plant, was and who was a witness for plaintiff, period two A weeks. small officewas up packing department the fitted on fourth floor of the building, employees of the which the knew Dr. Rohl- fing’s office. charge by Rohlfing any employee
No made Dr. to was performed, for what services he and was none made Rohlfing’s employees. the defendant Dr. TERM, 1923. MARCH Smith v. Chemical salary paid monthly
compensation the fixed him awas company. defendant day appeared particular the that in
It March, arranged being a fire drill established, response of the em- plant, to alarm all at and including plaintiff, packing department, ployees of the building. adjoining yard Plaintiff at ran to the packing engaged known as cocaine medicine, time was atrophine. get rush the build- to out and In said plaintiff got ing some on alarm account of the eye. Shortly atrophine thereafter in her left of cocaine plaintiff her fore- work, to her when had returned and eye lady told her and was noticed thereupon forelady plaintiff what occurred, told Mr. and was foreman, Wolfer, called Mr. eye plaintiff’s which water, Wolfer bathe the telephoned thereupon first foreman done. The department packing Dr. floor of the eye, plaintiff’s Rohlfing he did and look at to come appeared shortly the fourth thereafter. gold plaintiff is known as what floor took plaintiff’s proceeded examine chloride room where thereupon eye fingers. by opening He told it with his eye, it would she cold in her and that that had days maybe or four a week. Plaintiff be over three waving him condition of the time there was told eye yellow waving be- she black below and that saw part uppert her and that cold fore the hardly pained that she see. her, could Several plaintiff reported days forelady to her thereafter again better, was no and the foreman Mr. Wolfer, Rohlfing, sent for Dr. who did come at once, day, come on the sixth or seventh when he examined plaintiff’s eye, plaintiff again him about the told waving appeared colored conditions existed. again evidence that Dr. told just a cold and a month or that it take more get
for her to well. “being Plaintiff testified that he doctor” During took she all of word. this time *9 212 MISSOURI APPEAL REPORTS,
Smith, y. Chemical Works. work, -mained at her and thereafter weeks, for several finally eye pained to snch an extent in June, she visited an Dr. oculist, Runde, when it was ‘‘ suffering found that she was from what is known tachment of the retina” and was almost blind in her left aas result. appeared testimony expert physicians
It usual treatment for detachment of the retina patient when discovered is first rest for the internally, use of certain medicine taken and where treat- given promptly ment is appears, when the -afflictionfirst twenty-five that there is a favorable result in from thirty-five per longer cent of the cases. The the detach- given, ment probability exists before the treatment improvement of a or cure is lessened: The condition is progressive, given promptly and unless treatment is considered in from delayed, incurable. Where treatment is per only one to two cent of the cases are the physicians any able to obtain results. Detached retina blindness means unless the condition is promptly and properly appears, treated when good it first and'then twenty-five thirty-five sults are per .obtained from cent partial the eases. There are also-cases of detachment, destroy which does wholly sight, and which if given prompt improve progress or treatment, of the con- subjective dition symptoms, is arrested. of detached appearance retina are wavy of colored clouds mist before symptoms which are cold. It presence shown atrophine or cocaine could not cause detached retina, usually it is the result of a blow or shock or it might by fright near-sightedness. be caused or appeared from the evidence that regular physician had and that when a serious injury plant patient occurred at defendant’s regular physician either sent to hospital. or to a There was no required contention that to submit to- treatment any physician, other right that she employ had the any one she saw fit. TERM, MARCH *10 y. Works.
Smith Chemical of the defendant on behalf There evidence was some eye be- her trouble with had to the effect that Rohlfing reason her, and treated that Dr. fore the time upon trial, testimony given plaintiff’s she is former a impeached the time a as to when certain extent place. we matters, however, took occurrence With ques- jury’s settled the verdict are as not concerned, testi- and contradictions inconsistencies tions of mony. appeared con- that the from the evidence
It further plaintiff’s detached is the dition existed except by the use of could not he discovered retina, paricular and that at oculists, instrument used Works, was no such instrument Chemical time there during practice Rohlfing was not that Dr. his general practitioner. hut a oculist, theory upon recovery which seeks diag- alleged unskilfully
that the Dr. act of eye improperly nosing ad- the condition of her vising treatment, her refrain to its caused as to. proper
getting prompt which resulted treatment, impairment eyesight. the loss or Taking there can he no true, as negli- it was sufficient to doubt that establish Rohlfing. gen- gence against He had been practitioner, and and did not eral was not an oculist, plain- have the instruments with which to examine eye. Notwithstanding tiff’s this, he undertook to make a, diagnosis symp- although a treatment, to advise given by plaintiff, expert toms were which the oculists would state indicate a detached retina. He advised that awas mere cold in the and that at the end of a week from the first examination and when the improved gave condition, not hut was in a worse he then same and advice as treatment. From reasonably such evidence the could conclude that gen- Dr. which use care and skill erally ordinary physicians exercised community. care and skill in the ' 212 MISSOURI v. Chemical
Smith negligence, Rohlfing’s Granting it follow does Dr. superior respondeat under the exists doctrine of company between circumstances negligent company rendering Rohlfing, liable for his employed that he was can be no There act? employ general the defend- a clerk previous medical of his on account such, but that ant as experience known custom arose, habit and which through company, as a doctor services employees. treating were used was used as doctor, he was While *11 through company, knowledge him such to the of employees. to its medical attendance undertook to furnish charge and there service made such no was for While was no obligation furnish on the defendant by reason so,, do it did undertake to service, such employees. duty such such fact a arose towards certainly duty to use reasonable of the defendant per- physician selecting reasonably in skilled of such defend- service, violation form the for a no contention here ant be liable. There was would selecting Dr. Rohl- care in did not exercise due defendant physician, fing perform the service as liable for the manner seeks hold the defendant Bohlfing performed service; in such mode in which Dr. diag- improperly words, malpractice in other act his nosing plaintiff’s ailment. .per- Bohlfing plead in does not
Defendant forming acting in- defendant as an the service was for dependent acting but denies that contractor, any capacity. in it is true he was While salary, equally true as clerk at a fixed it advantage knowl- his medical that the defendant took edge furnishing physician to its in and used him as a injuries. employees minor medical attendance in cases of warranted From evidence the were the stated v ques- Bohlfing finding performing the acts that Dr. acting scope of as an em- tion within long ployee company. for a He had of'the defendant TERM, MARCH
Smith v. Chemical performing period been like of time services knowledge quest his master. of and with might justified saying ques- be While we acting as Dir. an inde- tion pendent to whether pleaded, contractor is not involved because not ruling we refrain from the defendant liable on technical pleading. Where dis- performed being character of the service closed employee under was such that the law doctrine respondeat superior applied should not be for the supervision reason that the master had no control or performance over such service, then said could be establish failed'to a ease. regarded
This under case the evidence must be one where defendant undertook to furnish medical at- employees person Rohlfing. tendance of Dr. regard liability Whatever be the law in rule of master as established circumstances, jurisdictions, of other defend- decisions ant refers, becomes immaterial our event Su- preme Court has established a rule in such cases. Phillips
In the & F. v. St. Louis R. Co., S. (N. S.) 211 419, S. W. L. R. 1167, A. *12 Repts. 786, Am. St. 14 Ann. 742, Cas. the defendant com pany operated hospital through independent associa department tion, the court holds is in effect a of supported the railroad, which was contributions from employees. the railroad and also from The association its physicians charge employ was in who were in the patient hospital the railroad. The a sought company and to hold defendant railroad liable negligent physicians. acts of the The court held that liability company discharge by merely its not employing competent go doctors, but that it must' fur proper ther patients and treat in a manner the received, ruled that is liable defendant negligent physicians for the acts of such were Phillips servants. areWe bound the decision in the 212 .172
Smith, y. Chemical Works. authority we rule that the and under case, negligent of its em- acts liable case was in this Rohlfing. ployee, Dr. granting defendant’s counsel
It is asserted responsibility Rohlfing’s negligence and defendant’s Dr. to show no evidence unskilfully therefor, there was improp diagnosing Rohlfing’s act proximate erly treating plaintiff’s cause of was the Rohlfing’s injuries. true that Dr. act did It is plaintiff’s known as de in the condition result to warrant the evidence was sufficient retina, tached improper jury concluding a result thereon, reliance and treatment securing deprived she that she was proper of.the chance progress of the treatment, which event may may been have been arrested or she have expert that, cured. Dr. testified Runde, oculist, when prompt proper given, ex cures be treatment is thirty-five pected twenty-five per cent improved by cases. Plaintiff’s chance of a cure would be age good reason of connec health. The causal negligence, usually tion, like of inference matter from other and we under evidence in facts, hold that jury the case such for the determine. [Seckinger Eichholz 957; 31 Philibert, 590, 129 Mo. S. W. — Sharp Poe, v. Rail —, 282; v. road, Mo. 217 S. W. v. Rail 1154; Mo. S. W. MacDonald 517, road, v. Cable 468, S. W. Poumeroule App. Co., 152 S. W. 114.] The cause was submitted judg-
instructions, the verdict excessive, ment should be affirmed. foregoing opinion PER CURIAM: The Biggs, adopted opinion judgment
C., as the the court. The accordingly circuit court is P. Allen, J., affirmed. Becker and Danes, JJ., concur.