Lamb v. Oakwood Hospital Corp. ( 1972 )

41 Mich. App. 287 (1972) 200 N.W.2d 88

LAMB
v.
OAKWOOD HOSPITAL CORPORATION.

Docket No. 10772.

Michigan Court of Appeals.

Decided May 31, 1972.

Maile, Leach & Schreier, for plaintiffs.

Richard A. Kitch, for defendant Oakwood Hospital.

John C. Frakes, for defendant Dundas.

Richard C. Tripp, for defendant Mercier.

Before: LEVIN, P.J., and BRONSON and VAN VALKENBURG,^[*] JJ.

PER CURIAM.

Plaintiffs appeal a jury verdict of no cause of action as to defendant Oakwood Hospital and defendant Mercier and a directed verdict as to defendant Dundas. On December 30, 1963, defendant Dundas, a physician at defendant hospital, performed a tonsillectomy and an adenoidectomy on plaintiff Gary Lamb, then six years of age. Defendant Dundas prescribed that three drugs be given to the plaintiff by means of an intramuscular injection while he was in the recovery room. The drugs were administered by defendant Mercier, a registered nurse employed by defendant hospital and assigned to the recovery room. Shortly after his release from defendant hospital, plaintiff developed a paralysis of the left leg. This action followed.

Plaintiffs first allege that the trial judge committed reversible error when he charged the jury on proximate causation and damages and referred to defendant hospital as being "non-profit". No objection to the jury charge was raised below. This Court will not review possible errors in jury instructions raised for the first time on appeal. People v Duerson, 35 Mich App 223 (1971).

Plaintiffs next contend that the trial judge erred when he denied plaintiffs' motion to dismiss the defendant hospital's cross-claim against defendant Mercier. Plaintiffs claim that as a result their case was prejudiced by the trial judge's instruction that if the jury found that defendant Mercier was negligent, it should automatically find for defendant hospital on its cross-claim.

Cross-claims against co-parties are allowed by GCR 1963, 203.3. The purpose of this rule is to allow all claims between parties arising out of a single transaction to be tried at the same time. Providential Development Co v United States Steel Co, 236 F2d 277 (CA 10, 1956). The trial judge still retains control over entry of such claims to protect the parties who brought the original action and may order separate trials if he believes them necessary to avoid prejudice or confusion. GCR 1963, 505.2. Defendant Oakwood Hospital received permission to file its cross-claim on July 12, 1968, almost two years prior to trial. Plaintiffs did not assert that the cross-claim was prejudicial to them until after all the proofs had been entered at trial. Under the circumstances, the trial judge did not abuse his discretion in denying the motion. Further, the trial judge's instruction on cross-claims was simple and straightforward. We perceive no prejudice to plaintiffs.

Plaintiffs' third allegation of error is that the verdict was against the great weight of the evidence. We do not see the merit in this argument. There was evidence from which the jury could find that defendant Mercier gave plaintiff Gary Lamb the injection according to accepted community standards and that his paralysis could occur in the absence of negligence.

Finally, plaintiffs content that it was error to enter a directed verdict in favor of defendant Dundas. They argue that when defendant Mercier gave the injection she was acting as the servant of both the defendant hospital and defendant Dundas. We need not discuss this issue in light of the jury's finding that defendant Mercier was not negligent. There is no liability imposed on the master if the servant is not negligent. 57 CJS, Master and Servant, § 571, p 318.

Affirmed.

NOTES

[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.