Dessauer v. Memorial General Hospital , 96 N.M. 92 ( 1981 )

OPINION

WOOD, Judge.

The personal representative of the Estate of Dessauer sought damages for wrongful death on the basis of negligence in administering a dosage of medication. The defendants were the Hospital (Memorial General Hospital) and the Nurse (Bourque), who was an employee of the Hospital. The Hospital and the Nurse filed third-party complaints against the Doctor (Malleis). The third-party claims alleged the Doctor was negligent in his care and treatment of Dessauer, and was negligent in his supervision of the Nurse. The third-party claims sought either contribution or indemnity from the Doctor. Among the defenses to the third-party complaints was the contention that negligence of each of the third-party plaintiffs was the sole cause of Dessauer’s death. The Estate’s suit against the Hospital and the Nurse was settled for $225,000.00, and a joint tortfeasor release was executed. The third-party contribution and indemnity claims were tried, and the jury’s answers to interrogatories were to the effect that neither of the third-party plaintiffs should recover against the Doctor. The Hospital and the Nurse appeal. We (1) answer two issues summarily and discuss (2) the question of a general verdict, and (3) a refused instruction based on vicarious liability of the Doctor.

Issues Answered Summarily

(a) The trial court instructed the jury on the theories of negligence asserted against the Doctor. However, it refused requested instructions which would have told the jury that the Hospital and the Nurse sought either indemnification of the entire $225,000.00, or contribution of one-half of that amount. The refusal of these requested instructions was not error for two reasons. First, as we point out in discussing the issue involving vicarious liability, the claims of the Hospital and of the Nurse must be distinguished. The refused instructions failed to make any distinction between the difference in the relationship of the Hospital and of the Nurse to the Doctor and, in the form requested, they were incomplete statements of the law which were properly refused. Panhandle Irrigation, Inc. v. Bates, 78 N.M. 706, 437 P.2d 705 (1968). Second, the jury’s answers to interrogatories determined the rights of both the Hospital and the Nurse to contribution and indemnity; if the answers had determined a right to recovery by either the Hospital or the Nurse, the amounts would have been a simple matter of accounting. If the jury should have been instructed on the facts of the joint tortfeasor settlement, a point we do not decide, the Hospital and the Nurse were not prejudiced because an accounting could have been achieved by utilization of the jury’s answers. Bailey v. Jeffries-Eaves, Inc., 76 N.M. 278, 414 P.2d 503 (1966).

(b) The trial court instructed the jury, in accordance with the second paragraph of U.J.I. Civ. 8.1, that the only way it could decide whether the Doctor was negligent was “from evidence presented in this trial by physicians and surgeons testifying as expert witnesses.” The Hospital and the Nurse assert that this was not a case for limiting the testimony to expert witnesses; rather, that the circumstances of this case permit application of the “common knowledge” exemption. See Gerety v. Demers, 92 N.M. 396, 589 P.2d 180 (1978). We disagree. This case involved emergency treatment. The Hospital and the Nurse rely on one aspect of the matter in asserting applicability of the common knowledge exemption. Singling out one aspect would have been improper because it would have ignored the fact of emergency treatment and distorted the circumstances under which an overdose of the medicine was administered. There was no error in requiring the Doctor’s asserted negligence to be determined by expert testimony.

General Verdict

Because the issues being tried involved contribution and indemnity claims of two parties, the trial court was of the view that the best procedure would be by interrogatories which, when answered, would amount to a special verdict. Accordingly, no “general verdict” in the traditional sense was submitted to the jury.

Following are the pertinent interrogatories, and the answers thereto:

INTERROGATORY NO. 1: Was Dr. Ronald J. Malleis negligent? Answer —No.

INTERROGATORY NO. 3: Was Glorious Bourque negligent? Answer — Yes.

INTERROGATORY NO. 4: • If the answer to Interrogatory No. 3 is “yes”, was the negligence a proximate cause of the death of Wiley J. Dessauer? Answer —Yes.

INTERROGATORY NO. 5. If the answers to Interrogatories Nos. 3 and 4 are “yes”, was Memorial General Hospital negligent apart from the negligence of Glorious Bourque? Answer — Yes.

INTERROGATORY NO. 6: If the answer to Interrogatory No. 5 is “yes”, was the hospital’s negligence a proximate cause of the death of Wiley J. Dessauer? Answer — Yes.

The Hospital and the Nurse do not claim that the above answers were improper under the evidence. Nor do they claim that the answers would not have disposed of the case if there had been a general verdict. The contention is that the answers have no legal effect because there was no general verdict.

The Hospital and the Nurse rely on R.Civ. Proc. 49, which reads:

In civil cases, the court shall at the request of either party, in addition to the general verdict, direct the jury to find upon particular questions of fact, to be stated in writing by the party requesting the same. When the special finding of facts is inconsistent with the general verdict, the former shall control the latter, and the court shall give judgment accordingly.

This rule is very similar to the statute enacted by Laws 1889, ch. 45. This statute is quoted in Walker v. N. M. & So. Pac. R’y Co., 7 N.M. 282, 34 P. 43 (1893), and the United States Supreme Court upheld the statute, against constitutional attack, at 165 U.S. 593, 17 S.Ct. 421, 41 L.Ed. 837 (1897).

Rule of Civ.Proc. 49 refers to a general verdict and “special findings”, also known as special interrogatories. A third category is the special verdict, which the trial court utilized in this case.

The United States Supreme Court opinion in Walker v. Southern Pacific Railroad, supra, distinguished between general verdicts and special verdicts as follows:

Now a general verdict embodies both the law and the facts. The jury, taking the law as given by the court, apply that law to the facts as they find them to be and express their conclusions in the verdict. . . . Beyond this, it was not infrequent to ask from the jury a special rather than a general verdict, that is, instead of a verdict for or against the plaintiff or defendant embodying in a single declaration the whole conclusion of the trial, one which found specially upon the various facts in issue, leaving to the court the subsequent duty of determining upon such facts the relief which the law awarded to the respective parties.

The distinction between a special verdict, and special interrogatories with a general verdict, is stated in Childress v. Lake Erie & W. R. Co., 182 Ind. 251, 105 N.E. 467 (1914):

There is, however—

“a manifest difference between a special verdict and a finding of the facts in answer to interrogatories propounded to the jury. A special verdict is in lieu of a general verdict, and its design is to exhibit all the legitimate facts and leave the legal conclusions entirely to the court. Findings of fact in answer to interrogatories do not dispense with the general verdict. A special verdict covers all the issues in the case, while an answer to a special interrogatory may respond to but a single inquiry pertaining merely to one issue essential to the general verdict.” Words and Phrases, vol. 7, p. 6596; Morbey v. Chicago, etc., R. Co., 116 Iowa 84-89, 89 N.W. 105, 107.

If a jury finds on special questions of fact in answer to interrogatories, without a general verdict, the finding is of no force, and the court cannot give to the special finding any weight unless they are sufficiently numerous and explicit to leave nothing for the court to do but to determine questions of law. If they affirmatively show the existence of every fact necessary to entitle plaintiff to a recovery and the nonexistence of every defense presented under the issues, or if they show as a matter of law that a valid defense has been established by the evidence, they may then constitute a special verdict.

The distinction made in Childress, supra, was recognized in Claymore v. City of Albuquerque, (Ct.App.) Nos. 4804/4805, filed December 9, 1980 (N.M.StB.Bull. Vol. 20 at 75). However, the distinction seems not to have been recognized in other decisions. Bryan v. Phillips, 70 N.M. 1, 369 P.2d 37 (1962), is a special interrogatory situation consistent with the Childress distinction. Bryant v. H. B. Lynn Drilling Corporation, 65 N.M. 177, 334 P.2d 707 (1959), seems to use special interrogatories and special verdict as interchangeable terms, contrary to Childress. The questions answered in Saavedra v. City of Albuquerque, 65 N.M. 379, 338 P.2d 110 (1959), amounted to a special verdict although referred to as special interrogatories.

Saavedra answers the question whether the jury’s answers in this case are sustainable as a special verdict. It states:

[T]he only provision for submitting special interrogatories to a jury is when they are accompanied by a general verdict, unless the latter is waived or it is so submitted by consent.

Careful consideration has been given the contention of the defendant that what was done here amounted to a submission on a special verdict, and that such is not prohibited under our rules, but our rule 49 is too limited to allow such construction. Reversible error was committed by the action taken in this case over the objection of the claimant as he was entitled to a general verdict as a matter of right when he asked for it. Such action must be held to have been prejudicial, and this in the face of the negative answer to interrogatory No. 2, supra.

Because of Saavedra, supra, we cannot uphold the jury’s answers in this case as a special verdict, despite Judge Sutin’s apparent willingness to disregard the prohibition against special verdicts. Because there was no traditional general verdict, as explained in Walker v. N. M. & So. Pac. R’y Co., supra, the question is whether the jury’s answers were the equivalent of a general verdict. We particularly consider the answer to Interrogatory No. 1. If that answer was, in fact, the equivalent of a general verdict, the absence of a verdict form labeled “General Verdict” does not matter. Brannin v. Bremen, 2 N.M. (Gild.) 40 (1880).

The Hospital and the Nurse requested that three “General Verdict” forms be submitted to the jury. The first would have awarded $225,000.00 to the Hospital and the Nurse on a theory of indemnity. The second would have awarded $112,500.00 to the Hospital and the Nurse on a theory of contribution. As we point out in discussing the issue involving vicarious liability, the claims of the Hospital and the Nurse must be distinguished. Because the verdict forms failed to make that distinction, they were properly refused.

The third general verdict form submitted by the Hospital and the Nurse provided: “We find that the Defendant [Doctor] was free from any negligence . . . . ” The answer to Interrogatory No. 1 said the same thing. This verdict form went on to state: “Plaintiffs are not entitled to recover any sum.” Such is the legal effect of the jury’s answer; not being negligent, the Doctor was not liable for either contribution or indemnity as an alleged tortfeasor. See Standhardt v. Flintkote Company, 84 N.M. 796, 508 P.2d 1283 (1973).

Because the jury’s answer was determinative of the right of the Hospital and the Nurse to recover damages from the Doctor as an alleged tortfeasor, that answer is the equivalent of, and is to be given effect as, a general verdict. Smith v. Gizzi, 564 P.2d 1009 (Okl.1977). This result is not contrary to Saavedra, supra, which held that prejudice resulted from the absence of a general verdict; here we have a general verdict.

Although the foregoing disposes of this point, we recommend to the Supreme Court a change in R.Civ.Proc. 49 to permit special verdicts. We do so because (1) an Order of the Supreme Court, dated March 30, 1981, approves special verdicts in comparative negligence cases, and (2) where the jury’s answers dispose of a party’s right to recover, good judicial administration is not furthered by disputes over the label to be applied to those answers.

Vicarious Liability

Consistent with the third-party claims of the Hospital and the Nurse against the Doctor, the requested instructions and verdicts which were refused, and the instructions and interrogatories submitted to the jury were based on negligence on the part of the Doctor. The jury’s answers established that the Doctor was not negligent. Negligence on the part of the Doctor is not involved in this point.

The Hospital and the Nurse requested an instruction which was adopted by the Supreme Court for use beginning April 1, 1981. The heading of U.J.I. Civ. 11.14 is: “Liability of Operating Surgeon — Agency (Captain of Ship Doctrine)”. This heading resulted in extensive discussion in the briefs of the special agency rule called “Captain of the Ship”. This label was recognized, at the oral argument, to be inappropriate and misleading because the contents of the instruction did not contain this special agency rule. See Sparger v. Worley Hospital, Inc., 547 S.W.2d 582 (Tex.1977). We point this out to emphasize that the requested instruction does not involve the Captain of the Ship Doctrine.

The instruction requested read:

A doctor who has the right to control and supervise the activity of assistants, nurses and others, is responsible for negligent acts or omissions of any such person during specific treatment under the immediate and direct control and supervision of the doctor.

The Hospital and the Nurse contend this instruction is no more than the borrowed servant or special employee doctrine approved in Dunham v. Walker, 60 N.M. 143, 288 P.2d 684 (1955). The claim is that this doctrine also applies in situations involving doctors, Sparger v. Worley Hospital, Inc., and the trial court erred in refusing this requested instruction.

It is unnecessary to decide whether the borrowed servant doctrine applies in medical malpractice cases where an injured plaintiff is seeking its application. We assume that it does apply. This, however, is not a case where an injured party is seeking its application; the Estate has settled its claims against the Hospital and the Nurse. This case involves contribution and indemnity. Whether a borrowed servant instruction would have been appropriate depends upon the nature of the liability stated in the requested instruction, and the application of contribution and indemnity law to that liability.

The requested instruction, quoted above, would make the Doctor liable for the negligence of the Nurse in this case. Liability to an injured party may be imposed by the doctrine of respondeat superior. Romero v. Shelton, 70 N.M. 425, 374 P.2d 301 (1962). Liability under this doctrine is a form of vicarious liability. When vicarious liability is imposed upon the master (in this case, the Doctor), the liability “has nothing to do with fault” and, whatever the rationalization, seems to be imposed in order to assist an injured person to collect any damage award from a deep pocket. James, Vicarious Liability, 28 Tul.L.Rev. 161 (1954).

The fact that the Doctor could be held vicariously liable to the injured party for the Nurse’s negligence requires that the claim of the Hospital and the Nurse be distinguished.

The claims were for contribution and indemnity. The distinction between these claims must also be made. “[T]he difference between indemnity and contribution in cases between persons liable for an injury to another is that, with indemnity the right . . . enforces a duty on the primary wrongdoer to respond for all damages; with contribution, an obligation is imposed by law upon one joint tortfeasor to contribute his share to the discharge of the common liability.” Rio Grande Gas Company v. Stahmann Farms, Inc., 80 N.M. 432, 457 P.2d 364 (1969). Indemnity is not allowed, however, when the parties are in pari delicto. Standhardt v. Flintkote Company, supra; Harmon v. Farmers Market Food Store, 84 N.M. 80, 499 P.2d 1002 (Ct.App.1972). Contribution is not allowed unless the party seeking contribution has paid more than its pro rata share. Section 41-3-2(B), N.M.S. A.1978; Commercial U. Assur. v. Western Farm Bur. Ins., 93 N.M. 507, 601 P.2d 1203 (1979). The concepts of contribution and indemnity are “deeply rooted in the principles of equity, fair play and justice.” Aalco Mfg. Co. v. City of Espanola, 95 N.M. 66, 618 P.2d 1230 (1980).

The Nurse

A common example of indemnity is “where a blameless employer recovers from a negligent employee, after the employer has been held liable to the injured third person upon the theory of respondeat superior.” Rio Grande Gas Company v. Stahmann Farms, Inc.; see Employers’ Fire Insurance Company v. Welch, 78 N.M. 494, 433 P.2d 79 (1967). Here we have the converse. The Nurse, who settled the Estate’s liability claim against her, seeks indemnification from the Doctor on the basis of respondeat superior. Being the primary wrongdoer, she had no claim for indemnification. Rio Grande Gas Company v. Stahmann Farms, Inc., supra; 1 Mechem on Agency § 1608 (2d ed. 1914); see Prosser, Law of Torts § 51 (4th ed. 1971).

Nor can the Nurse obtain contribution from the Doctor because the Doctor’s liability, as a tortfeasor, see § 41-3-1, N.M. S.A.1978, under respondeat superior, is based on the Nurse’s negligence. Melichar v. Frank, 78 S.D. 58, 98 N.W.2d 345 (1959), approved the following from a Uniform Laws publication: “ ‘Where a master is vicariously liable for the tort of his servant, the servant has no possible claim to contribution from the master ....’” If the negligence of the Nurse were eliminated, the Doctor would not be liable at all. It is not equitable to require the Doctor to contribute to the Nurse when the contribution would be based on the Nurse’s negligence. Larsen v. Minneapolis Gas Company, 282 Minn. 135, 163 N.W.2d 755 (1968); see Aalco Mfg. Co. v. City of Espanola, supra. The Nurse had no claim for contribution from the Doctor.

The law does not grant to the servant the same right given to the party injured by the servant’s negligence. As we have already noted, the doctrine of vicarious liability developed to provide recovery to plaintiffs injured by servants who (1) were about their masters’ business, and (2) were unable to respond in damages themselves. The combination of those circumstances produced what Prosser calls “a rule of policy, a deliberate allocation of a risk” because “it is just that he [the master], rather than the innocent injured plaintiff, should bear [losses caused by the torts of servants] . . . . ” Prosser, supra, § 69 at 459. Nevertheless, Prosser also points out in his treatise, § 51 at 311, that “there may be indemnity in favor of one who is held responsible solely by imputation of law because of his relation to the actual wrongdoer, as where an employer is vicariously liable for the tort of a servant . . . . ”

If the master may obtain indemnity from a servant, for whose tort the master has responded in damages, it is totally illogical to think the servant may claim a right to contribution or indemnity from the innocent master once the servant has paid his liability to the injured plaintiff. The doctrine of vicarious liability was fashioned to provide a remedy to the innocent plaintiff, not to furnish a windfall to a solvent wrongdoer.

The Hospital

In considering the Hospital’s claims, we reiterate that no negligence of the Doctor is involved; the Hospital’s claims against the Doctor are based on his assumed vicarious liability for the Nurse’s negligence. The Doctor cannot be liable to the Hospital unless the Nurse was liable to the Hospital. See U.J.I. Civ. 4.3 and 4.6. Unless the Hospital has a claim against the Nurse, it has no claim against the Doctor. Larsen v. Minneapolis Gas Company, supra.

At the time the requested instruction was refused, the Doctor was claiming that both the Hospital and the Nurse were negligent; this claim was subsequently established by the jury’s answers to the interrogatories. Indemnity is allowed against the primary wrongdoer and not against a tortfeasor in pari delicto. Standhardt v. Flintkote Company, supra; Harmon v. Farmers Market Food Store, supra. The Hospital had no indemnity claim against the Nurse as a joint tortfeasor; the Hospital made no claim at the trial that, as between the Hospital and the Nurse, the Nurse was the primary wrongdoer. The Hospital’s allegations being insufficient to show an indemnity claim against the Nurse, the Hospital’s indemnity claim against the Doctor was also insufficient.

The Hospital’s contribution claim against the Doctor was based on the negligence of the Nurse. Similarly to the indemnity claim, the Hospital made no claim at the trial that the Nurse was a joint tortfeasor with the Hospital. However, because the jury’s answers to interrogatories subsequently established that the Hospital and the Nurse were joint tortfeasors, we assume that at the time the instruction was refused, a contribution claim against the Doctor, on the basis of the Nurse’s negligence, was before the trial court. Such a claim would be for the Nurse to contribute to the Hospital her pro rata share; or, stated another way, that the Hospital had contributed more than its pro rata share. Section 41-3-2(B), supra; Commercial U. Assur. v. Western Farm Bur. Ins., supra. The record shows that the Hospital and the Nurse had paid $225,000.00 to the Estate, but there is nothing to show which of the two made the payment. Nor is there a claim that the Nurse’s part of the $225,-000.00 was less than her pro rata share. The Doctor, if liable under any theory, would be in the same position as the Nurse. Larsen v. Minneapolis Gas Company, supra. Thus, the Hospital’s contribution claim against the Doctor was also insufficient to support a vicarious liability instruction, directed to the Doctor, at the time the instruction was refused.

No instruction told the jury that the Doctor could be held liable for the Nurse’s negligence. There being a failure to instruct, the Hospital was required to tender “a correct instruction”. R.Civ.Proc. 51(1). An incorrect instruction is properly refused. Panhandle Irrigation, Inc. v. Bates, supra. The requested instruction was properly refused because it was incorrect. It was incorrect because (1) it failed to distinguish between the claims of the Hospital and the Nurse; (2) it failed to distinguish between contribution and indemnity; and (3) the instruction was inapplicable, in this case, under all of the distinctions.

The judgment of the trial court is affirmed.

The Hospital and the Nurse are to bear their appellate cost.

IT IS SO ORDERED.

WALTERS, J., concurs. SUTIN, J., concurs in result.