damages of plaintiff in error, Dr. H. Leslie Moore, for an alleged breach by plaintiff in error of his contract to attend and treat the wife of defendant in error, during and after birth of a child, and for alleged malpractice on the wife, during her confinement, by Dr. A. D. Hardin, for whose acts and negligence, it was charged, plaintiff in error was liable. The plaintiff in error answered that he arranged for Dr. Hardin, who was a careful and skilful physician, to attend defendant in error's wife, during the childbirth, by express agreement with defendant in error, and that he was to be notified in the event any complications arose, but was never so notified, and that he had not violated his agreement with defendant in error.

The material facts proved were that plaintiff in error and defendant in error had entered into an agreement, whereby the wife of defendant in error was to have the services of plaintiff in error, as a physician, for an agreed fee, during the approaching confinement of the wife, who was visited and examined by defendant in error between 1 and 2 o'clock on the morning of February 6, 1911, and at that time plaintiff in error promised to return when needed. On account of the setting of a lawsuit against plaintiff in error and others, at Fort Worth, for February 6, 1911, and pressing professional engagements, plaintiff in error concluded that he would not be able to return to Mrs. Lee. It was the custom among the reputable physicians of Dallas, where the parties resided, for a physician, who determined that he could not meet all his engagements, to send some other physician, and, about 8 o'clock on February 6, 1911, plaintiff in error telephoned Dr. Hardin that he might need him during that morning. Before 9 o'clock, defendant in error notified Dr. Moore that it was time for him to come to Mrs. Lee, when Dr. Moore replied that, because of important business, he would be unable to come, but he would send an

other physician, to which defendant in error responded with a request to send him in a hurry. Until about a quarter past 9 o'clock, there was another physician in the neighborhood of defendant in error, with whom defendant in error talked, without asking him to attend Mrs. Lee. After being requested by defendant in error to send another physician in a hurry, plaintiff in error telephoned to Dr. Hardin, whose general reputation in Dallas as a physician was good, saying that he had a case to which he wanted to send him, that it was a partnership case, of which he expected to take care, and plaintiff in error requested Dr. Hardin to go out and look after the wife of defendant in error, and to notify him if he needed help or anything went wrong, whereupon he would either come himself or send assistance. Dr. Hardin reached the home of defendant in error about 10 o'clock and attended to the delivery of the child, and there was evidence to raise the issue of injury to Mrs. Lee through acts or negligence of Dr. Hardin. Defendant in error expressed no dissatisfaction to Dr. Hardin, at the time the child was delivered, and paid him on his second or third visit the full fee, which he testified he had agreed to pay plaintiff in error, and paid nothing to plaintiff in error.

A jury trial resulted in a verdict and judgment for plaintiff in error, which was reversed by the court of civil appeals, and section B of the commission of appeals recommended that the judgment of the court of civil appeals be affirmed.

The trial court charged the jury that the law required the exercise of ordinary care by plaintiff in error in his personal attention to Mrs. Lee, and also required the exercise of ordinary care by plaintiff in error in the selection of another physician for her. The trial court refused requests to charge that any negligence or lack of skill on the part of Dr. Hardin, resulting in injury to Mrs. Lee, was chargeable to plaintiff in

error, regardless of the care exercised by plaintiff in error in Dr. Hardin's selection.

The controlling question here is whether the action of the trial court was correct in giving and refusing these charges.

It is quite undeniable that defendant in error assented to plaintiff in error's own nonattendance on his wife. He admits that, when telephoned plaintiff in error's reasons for seeking to be released from treating his wife, his response was to urge haste in sending another physician. It is immaterial to the matter of plaintiff in error's liability for Dr. Hardin's negligence or lack of skill, under the issues joined herein, whether plaintiff in error represented Dr. Hardin to be his partner at the time he proposed sending him. No pleading was filed by defendant in error, alleging that Dr. Hardin was held out as plaintiff in error's partner, nor seeking to hold plaintiff in error liable as a partner with Dr. Hardin, nor seeking to recover any damages for any misrepresentation of Dr. Hardin's status

as a partner. So the question is, simply, What was plaintiff in error's duty, under the law, when defendant in error asked him to speedily despatch another physician to treat Mrs. Lee? To our minds this question admits of no answer save that the duty of plaintiff in error was to exercise ordinary care in the selection of the physician to be sent, as the jury was instructed by the trial court.

Physician-care in selecting substitute.

The opinion in Texas C. R. Co. v. Zumwalt, 103 Tex. 607, 30 L.R.A. (N.S.) 1206, 132 S. W. 113, declared that where a railroad company furnished an employee with a physician, the railroad company would not be held liable for the physician's negligence unless, in treating the employee, he was the agent of the railroad company. No more can plaintiff in error be held liable for Dr. Hardin's negligence or lack of

In the leading case of Cunningham v. International R. Co. 51 Tex. 510, 511, 32 Am. Rep. 632, it is said: "The true test

by

which to determine whether one who renders service to another does so as a contractor, or not, is to ascer tain whether he renders the service in the course of an independent occupation, representing the will of his employer only as to the result of the work, and not as to the means by which it is accomplished.' Shearm. & Redf. Neg. §§ 76-79; 1 Redfield, Railways, 505; Pack v. New York, 8 N. Y. 222. It is now the well-established doctrine in Europe, and the generally prevailing rule in this country, that the ordinary relation of principal and agent, and master and servant, does not subsist in the case of an independent employee or contractor who is not under the immediate direction of the employer."

The doctrine is reaffirmed in Cunningham v. Moore, 55 Tex. 373, 40 Am. Rep. 812, in this language: "It is a well-settled principle, founded on reason and supported by abundant authority, that the relation and liability of master depend upon the right of control over the servant."

This court said in Wallace v. Southern Cotton Oil Co. 91 Tex. 21, 40 S. W. 399: "If Davis was an independent contractor in the sense that the company had no right of control as to the manner in which the work was to be done, then he was not the servant of the company; and the plaintiff, having been employed by him, cannot recover.

-partnership

case.

pected to resume charge of the case when his other engagements would permit, and that he expected Dr. Hardin to be compensated for the services he would render, while plaintiff in error would be compensated for the services he would render. In discussing the effect of a division of service between physicians, Ruling Case Law says: "They may make such division of service as, in their honest judgment, the circumstances may require, and each, in serving with the other, is rightly held answerable for his own conduct, and as well for all the wrongful acts or omissions of the other which he observes and lets go on without objection, or which, in the exercise of reasonable diligence under the circumstances, he should have observed, but beyond this his liability does not extend. Finally, it seems that a physician or surgeon may, on leaving town or in other case of need, recommend or employ another physician or surgeon to treat a patient for him, and in the absence of negligence in such selection will not be liable for the negli gence or lack of skill of the substitute practitioner." 21 R. C. L. pp. 394, 395.

Given the most favorable interpretation to defendant in error, in determining plaintiff in error's responsibility for the alleged negligence and lack of skill of Dr. Hardin, the facts of this record disclose nothing plaintiff in error to furnish another further than an undertaking by physician, whose work, in the absence of plaintiff in error, was necessarily entirely free from his control. And, as said by the Ohio supreme court in Youngstown Park & Falls Street R. Co. v. Kessler, 84 Ohio St. 79, 36 L.R.A. (N.S.) 53, 95 N. E. 511, Ann. Cas. 1912B, 934: "It is not the law that one who contracts to furnish or pay for medical or surgical aid and attention to another is liable, at all events, for the mistakes or incompetency of the physician or surgeon he may employ for that purpose. There must be some neglect or carelessness or misconduct on his part in the performance of his obligations arising under such contract. If he act in good faith and with reasonable care in the selection of the physician or surincompetency or lack of skill or want geon, and has no knowledge of the of ability on the part of the person employed, but selects one of good standing in his profession, one authorized under the laws of this state to practise medicine and surgery, he has filled the full measure of his contract, and cannot be held liable in damages for any want of skill or malpractice on the part of the physician or surgeon employed."

In our opinion, there was no error in the charge of the court, nor in the refusal of the charges request- act of substitute. ed, and, finding no

-liability for

other reversible error in the record, it is ordered that the judgment of the Court of Civil Appeals be reversed, and that the judgment of the District Court be affirmed.

1. In general, 191.

II. Noncontract cases, 191.

III. Contract cases, 192.

I. In general.

both

Cases are excluded where physicians were present at the time of the conduct complained of, as are also cases of partnership.

A physician or surgeon is of course responsible for the malpractice of his apprentice (Hancke v. Hooper (1835) 7 Car. & P. (Eng.) 81), of his agent (Landon v. Humphrey (1832) 9 Conn. 209, 32 Am. Dec. 333), or assistant Tish v. Welker (1897) 7 Ohio N. P. 472, 5 Ohio S. & C. P. Dec. 725).

Thus, a physician, who has taken charge of and assumed the duties and responsibilities of a case of a broken leg himself, and who on his own account employs an assistant to dress and treat it, is responsible to the patient for the malpractice of such assistant. Tish v. Welker (Ohio) supra.

The cases upon the question whether the surgeon or physician of a hospital patient is responsible for the negligence of hospital physicians form a special class, as they arise under contract, but depend upon whether the defendant has undertaken the part of the treatment in which the negligence occurred.

It was held in Hunner v. Stevenson (1913) 122 Md. 40, 89 Atl. 413, that a surgeon who performs an operation is not "liable for the negligence of other physicians, nurses, or internes in hospitals, in the after treatment, unless he specially undertakes such employment." Similarly, the proprietor of a hospital cannot escape responsibility for the negligence of nurses and internes in permitting a patient of unsound mind to take poison, because he is under the care of his own physician a small part of the time. Broz v. Omaha Maternity & General Hospital Asso. (1914) 96 Neb. 648, L.R.A.1915D, 334, 148 N. W. 575, 7 N. C. C. A. 298.

In Norton v. Hefner (1917) 132 Ark. 18, L.R.A.1918C, 132, 198 S. W. 97, it was held that a surgeon who comes from his village home to a city hospital, to perform an operation, is not liable for the negligence of an interne in the hospital in looking after the subsequent dressing of the wound, if he was not negligent in the selection of the interne who should perform that duty. But it was held to be no answer to a suit against a surgeon, for leaving a rubber tube in the plaintiff's body after an operation, that the rubber tube may have been left in her wound by an attendant nurse or another physician in the hospital, where she testified that the surgeon was her physician, and operated on her, and attended her while in the hospital, and that the other physicians were acting under his directions in the treatment of her, and that he discharged her from the hospital at the time she left. Saucier v. Ross (1916) 112 Miss. 306, 73 So. 49, 14 N. C. C. A. 668.

It may be noted that De Forrest v. Wright (1852) 2 Mich. 368, quoted from in the reported case (MOORE v. LEE, ante, 185) was a case of the responsibility of the hirer of draymen, for their negligence.

II. Noncontract cases.

A physician going out of town, who recommends a certain other physician to his patients, is not liable for the malpractice of the person recommended. Keller v. Lewis (1898) 65 Ark. 578, 48 S. W. 755; Hitchcock v. Burgett (1878) 38 Mich. 501; Stokes v. Long (1916) 52 Mont. 470, 159 Pac. 28 (obiter).

Thus, in Keller v. Lewis (Ark.) supra, where a physician, on being approached for treatment, gave temporary treatment, and stated that he was going away for two or three weeks, and that in his absence a named physician would attend to his cases, it was held to be error to refuse the following instruction asked by him in a suit for negligence: "A physician.