Plаintiff instituted the instant litigation against the defendants above named to recover damages for personal injuries alleged to have been sustained by him as a result of the alleged malpractice of defendants in examining, treating and X-raying him after he had sustained a broken back in an accident. Defendant corporation in its answer admitted that Dr. Metzinger was its employee and denied that Dr. Joyant was its agent or employee. By way of affirmative defenses, said corporation pleaded unavoidable accident and contributory negligence.
When the cause came on for trial and before the jury was drawn, plaintiff dismissed the action as to defendant Dr. Charles Henry Wood. At the conclusion of the trial, the jury brought in its verdict for plaintiff and against defendants Dr. C. J. Joyant and Los Angeles College of Chiropractic, assessing plaintiff’s damages at $3,500. Thereafter the trial court denied defendant corporаtion’s motion for judgment notwithstanding the verdict or for a new trial, whereupon defendant corporation took this appeal from the judgment as well as from the order denying said judgment.
A brief résumé of the facts disclosed by the evidence, in the aspect most favorable to respondent, follows:
Between 9 :30 and 10:00 in thе morning of March 13, 1940, respondent, then aged 63 years and retired, sustained a broken back in an accident which occurred in the cellar of his home. When respondent attempted to move a water heater six feet high, two feet in diameter, and weighing three hundred fifty pounds, it swung off balance knocking him fiat on his fаce upon a hard dirt and cement floor and fell with crushing force on the lower portion of his back. His associate removed the heater from respondent’s back, and after remaining on the
Dr. Marianne Scarborough, a doctor óf medicine connected with the General Hospital, who personally attended and ren
Appellant urges (1) that there is no evidence that Dr. Joyant was an employee or agent of appellant on March 13, 1940; (2) that the trial court committed prejudicial error in its instructions to the jury; (3) that Dr. Joyant was not negligent and that his negligence, if any, did not proximately cause damage to respondent; (4) the verdict is excessive and patently the result of passion and prejudice; and (5) the trial court erred in denying appellant’s motion for judgment notwithstanding the verdict.
Appellant denied in its answer to the complaint herein that Dr. Joyant was either its agent or its employee at the time respondent was treated in its institution. Upon the issue thus created, the following testimony was presented at the trial:
Defendant Dr. Charles Henry Wood, who had been the president and a director of appellаnt college for twenty-eight years, testified that the college was housed in two buildings at 920 Venice Boulevard, in the city of Los Angeles, one of which was a three-story building containing 17,000 square feet; that there were three store rooms on the ground floor of said building facing on Venice Boulevard; that as one faced said building the store room on the left was occupied by the Los Angeles X-ray Laboratory; that the middle store room served as a waiting room for the college, and the store room on the right was occupied by a chemical laboratory; that on March 13, 1940, the equipment in the X-ray laboratory рersonally belonged to the witness, who had owned the laboratory for many years. On March 13, 1940, the said X-ray laboratory was operated by Dr. Joyant who had complete control of it; that said witness together with Dr. Boyce “founded that laboratory and operated it, and I made an arrangement with Dr. Joyant that in return for doing my work on my patients—I have quite a large clientele—and in return for doing the work for me and doing the teaching X-ray analysis and diagnosis to the student body, that he would not be compelled to pay any rent or any telephone service, or any janitor service, but there were no fees cоllected
Dr. Wilma Churchill von Walden tеstified she was the secretary and treasurer and a director of the Los Angeles College of Chiropractic; had charge and control of the faculty of the college; that on March 13, 1940, Dr. Joyant operated an X-ray laboratory in a portion of the building occupied by the college; thаt he taught X-ray analysis at the college when that subject appeared in the school curriculum; that the name of Dr. Joyant’s laboratory appeared on the front window thereof as follows: 1‘ Los Angeles X-ray Laboratory. ’ ’
Dr. Clement J. Joyant testified that he was a doctor of chiropractic аnd an X-ray technician and on March 13, 1940, operated the laboratory Imown as “Los Angeles X-ray Laboratory” at 918% Venice Boulevard, occupying space on the ground floor of a building which also housed the Los Angeles College of Chiropractic, the entrance to the latter being at 920 Venice Boulevard; that on his laboratory door facing Venice Boulevard was this sign: “Entrance, Los Angeles X-ray,” and on the front window facing Venice Boulevard was the sign reading “The Los Angeles X-ray Laboratory— Clement J. Joyant”; that he had operated said laboratory continuously from 1930; that he had an agreement with Dr. Wood that whenever the X-ray course appeared in the college curriculum he would teach it for the use of the space occupied by his laboratory, light, gas and telephone service; that said agreement was made in 1929 and continued in force and effect through March, 1940; that he made X-rays for any of the doctors in the field who referred their patients to him; that the college did not prescribe the charges he made for X-rays, nor did it dictate or prescribe rules for him relating to the conduct of his X-ray business, nor the hours during which the laboratory was to be open for business.
Respondent Stanhope testified that prior to March 13, 1940, he had never been treated at the Los Angeles College of Chiropractic and did not know anyone connected with said
“An agency is ostеnsible when the principal intentionally or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him. ’ ’ (§ 2300, Civ. Code.) In this connection it is urged by appellant that “before a recovery can be had against a principal for the alleged аcts of an ostensible agent, three things must be proved, to-wit:” (quoting from
Hill
v.
Citizens Nat. Tr. & Sav. Bank,
9 Cal. (2d) 172, 176 [
An examination of the evidence hereinbefore referred to which was produced on the issue of agency convinces us that respondent has met the requirements enumerated in the Hill case. So far as the record rеveals appellant did nothing to put respondent on notice that the X-ray laboratory was not an integral part of appellant institution, and it cannot seriously be contended that respondent, when he was being carried from room to room suffering excruciating pain, should have inquired whether the individuаl doctors who examined him were employees of the college or were independent contractors. Agency is always a question of fact for the jury. The evidence produced on this issue is sufficient to support the jury’s implied finding that Dr. Joyant was the ostensible agent of appellant collеge.
Without discussing each of the instructions objected to, suffice to say that this court hаs examined the fifty or more instructions given and is convinced that the jury was fully and impartially informed as to the principles of law applicable to the facts established by the evidence without resulting prejudice to appellant. (§4%, art. VI, Cal. Const.) Moreover, as heretofore stated, the evidence was sufficient on the question of agency to present that issue to the jury.
App ellant urges that “ there can be no recovery against an X-ray technician unless two facts are established:
“ (a) Negligence on the part of the technician;
“(b) Evidence that the pictures were used by physicians in treating plaintiff or as a diagnostic aid.”
The record herеin reveals that Dr. Joy ant did not follow the accepted practice of skillful roentgenologists in this community of taking a lateral X-ray wherever an injury to the spine is indicated. Additionally, he developed and read the X-rays immediately after he took them while respondent was still in the room, at which time he mаde the positive statement, “Well, this confirms the doctor’s diagnosis. There are no bones broken.” Therefore, it must be assumed that the X-rays were taken as a diagnostic aid and that if Dr. Joy ant had discovered through that medium that respondent’s back was broken, he would have made known that fact so that apрellant’s doctors could have given further attention to respondent’s injury.
Dr. Scarborough testified that in her opinion, as an expert, the period of respondent’s convalescence was greatly lengthened because of the lack of care received by him at the hands of defendants; that thе average case of spinal fracture with a compression such as respondent suffered, and for a man of his age, would require the back to be placed in a cast for four months and that such patient is usually back at work in six months, whereas respondent was still convalescing from his injury at the expiration of one year and eight months.
The evidence adduced at the trial herein amply supports the judgment based on the jury’s verdict that Dr. Joyant was negligent and that such negligence proximately caused damage to respondent.
From what has been said, it follows that there was no error in the denial of appellant’s motion for judgment notwithstanding the verdict.
The judgment and order appealed from are, and each of them is, affirmed.
Doran, J., and White, J., concurred.
Appellant’s petition for a hearing by the Supreme Court was denied October 22, 1942.