Jim C. McKELVY, Petitioner, v. Dr. Forrest C. BARBER, Respondent, 381 S.W.2d 59

WALKER, Justice. Our opinion delivered in this cause on March 4, 1964, is withdrawn and the following is substituted therefor: Jim C.’ McKelvy, petitioner, brought this suit again Dr. Forrest C. Barber, respondent, to recover damages alleged to have resulted from negligent medical treatment. Respondent’s motion for instructed verdict at the conclusion of all the evidence was granted by the trial court, and the Court of Civil Appeals affirmed. 368 S.W.2d 38. As the case reaches us, the appeal presents two procedural problems and two questions of substantive law.

We have concluded that respondent was not entitled to a peremptory instruction on any of the grounds asserted in his motion, and the cause will be remanded for a new trial. Petitioner injured his finger in the course of his employment by American Manufacturing Company. He was taken by the Personnel Director to the office of respondent, who treated the injury. Petitioner later developed tetanus and was totally and permanently disabled at the time of trial. He settled with Pacific Employers Insurance Company, the compensation carrier for American, prior to the institution of this suit.

While respondent’s motion for instructed verdict contains twenty numbered paragraphs, it actually asserts two basic and independent grounds for granting a peremptory instruction in his favor. These are: (1) that there is no evidence to support a finding that the tetanus was proximately caused by any negligence on respondent’s part; and (2) that since the undisputed evidence shows that respondent was acting as the agent, servant or employee of American and its compensation carrier in treating petitioner, he is immune from liability by virtue of the provisions of

Article 8306, § 3, Vernon’s Ann.Tex.Civ. Stat. The judgment of the trial court merely recites that specific grounds were set forth in the motion for instructed verdict, and that the court was of the opinion that the motion was well taken and should be granted. To reverse the judgment of the trial court under these circumstances, it was necessary for petitioner to assume the appellate burden of establishing that the peremptory instruction cannot be supported on either of the grounds set out in the motion.

If he has waived the right to question either of such grounds or if either is sound, the judgment of the trial court must be affirmed. Petitioner was not required to file a motion for new trial as a prerequisite to an appellate attack on the action of the trial court in granting a peremptory instruction. Rule 324, Texas Rules of Civil Procedure. His brief as appellant in the Court of Civil Appeals contains three points of error which assert that there is evidence to support findings that the tetanus was proximately caused by respondent’s negligence.

Since he did not have a point of error complaining of the action of the trial court in sustaining the motion for instructed verdict on the second ground mentioned above, respondent says that petitioner has waived any complaint he might have had with respect thereto. We do not agree. In the introduction to his brief as appellee in the Court of Civil Appeals, respondent stated that he presumed petitioner was not contesting the motion for peremptory instruction on any grounds other than as stated in the three points of error.

By his Counterpoint No. 16 and the argument thereunder, however, respondent sought to uphold the instructed verdict on the statutory immunity ground urged in the trial court. Petitioner responded with an extended discussion of the question in his reply brief, and respondent then filed an additional reply dealing only with that issue. The Court of Civil Appeals did not affirm on the theory that petitioner had waived the right to complain of any error on the part of the trial court in granting a peremptory instruction on the second ground stated in the motion for instructed verdict.

On the contrary, it considered the question on the merits, concluded that the position taken by respondent was sound, and accordingly affirmed the judgment of the trial court without considering the three points of error set out in petitioner’s original brief. After a point of law has thus been briefed by all parties and decided by the Court of Civil Appeals, we think it should be treated as having been properly presented for decision at the intermediate court level even though not raised by a formal point of error in the appellant’s brief.

Section 3 of

Article 8306 provides that the employees of a subscriber shall have no right of action against their employer or against any agent, servant or employee of said employer for damages for personal injuries. An agent, servant or employee within the meaning of this statute is ordinarily one for whose conduct the employer would, aside from the Workmen’s Compensation Act, be legally responsible under the doctrine of respondeat superior. The statutory immunity does not extend, for example, to an independent contractor. See Haynes v. Taylor, Com.App., 35 S.W.2d 104, 38 S.W.2d 1101; Cotton v.

Henger, Tex.Civ.App., 312 S.W.2d 299 (modified and affirmed, 159 Tex. 139, 316 S.W.2d 719). The injured claimant may thus be entitled to recover in a third-party action even though the defendant would be regarded as the employer’s agent for some purposes. An important consideration in such cases is whether the employer had that right to control the physical details as to manner of performance which is characteristic of the relationship of master and servant. See American Nat. Ins. Co. v. Denke, 128 Tex. 229, 95 S.W.2d 370, 107 A.L.R. 409.

As pointed out by the Court of Civil Appeals, it is undisputed that respondent was the doctor for American Manufacturing Company. Petitioner so testified, as did respondent and a representative of the company. Respondent says that when all parties have thus conceded that he was engaged in work for the employer, a presumption arises that the relationship of master and servant existed between them. He contends that the courts below were required to give effect to such presumption because no evidence tending to show the existence of any other relationship was introduced.

It is unnecessary to decide here whether there are circumstances under which a medical practitioner who treats a patient would he regarded as the servant of another. In the ordinary case, however, where an industrial employer or its compensation carrier arranges for and pays a particular physician or surgeon to care for employees injured in the course of their employment, the parties do not contemplate that the relation of master and servant will arise between the employer or carrier on the one hand and the physician or surgeon on the other.

The doctor is generally expected to exercise and rely entirely upon his own professional knowledge and skill without interference from either the employer or the insurance carrier. There is no presumption then of a master and servant relationship where the proof merely shows that an ordinary employer or insurance company has arranged for a doctor to treat another person. See 41 Am. Jur. Physicians and Surgeons § 116; Annotation, 19 A.L.R. 1168, 1183; Annotation, 69 A.L.R.2d 305, 320; Restatement, Second, Agency § 223, Comment a; Mechem, Outlines of the Law of Agency, 4th ed. 1952, § 432 et seq.

It appears from the evidence in this case that respondent is engaged in the general practice of medicine. Only about fifteen or twenty per cent of his practice is of an industrial nature. He is not on a retainer with American Manufacturing Company, but is paid for his services as they are rendered. His charges for treating injured workmen are paid by Pacific Employers, while American pays his fees for making physical examinations.

The details of his relationship with the company are not fully developed, but the mere fact that he is generally regarded as the “company doctor” and is paid by Pacific Employers does not conclusively establish that he is subject to the ultimate control of either in his treatment of industrial injuries. In our opinion the evidence fails to show as a matter of law that respondent is the agent, servant or employee of American Manufacturing Company or its compensation carrier in rendering such services, and the instructed verdict cannot rest upon the second ground stated above. See Pedigo & Pedigo v.

Croom, Tex.Civ.App., 37 S.W.2d 1074 (wr. ref.); Hoffman v. Houston Clinic, Tex.Civ.App., 41 S.W.2d 134 (wr. dis.). This brings us to the second procedural question raised by respondent As indicated above, the Court of Civil Appeals did not pass upon petitioner’s three points of error which attacked the first ground set out in the motion for instructed verdict. The failure of the intermediate court to consider and sustain such points was not assigned as error in petitioner’s motion for rehearing in the Court of Civil Appeals or in his application for writ' of error here.

Respondent says that in this situation the judgment of the trial court must he affirmed in any event because it rests upon an independent ground which cannot now be questioned. He thus seeks to invoke the rule that applies when the intermediate court has overruled points of ferror attacking an independent ground .upon which the judgment of the trial court rests and its action in that respect is not brought forward for review. See City of Deer Park v.

State, 154 Tex. 174, 275 S.W.2d 77. “[I]t seems to be the definitely settled rulé that the party' who' prevailed in the Court of Civil Appeals.-is-entitled to have his assignments, -which' were properly presented in that court, 'considered by the Supreme Court in so far as may be necessary to • determine what judgment should have been rendered by the Court of Civil Appeals.” Holland v. Nimitz, 111 Tex. 419, 232 S.W. 298, 239 S.W. 185.

This refers to assignments or points 'of error that were not passed- on by the Court of Civil 'Appeals. ’ We have also .said on several occasions that “when it is determined that the Court of Civil Appeals. erred in basing its- judgment on a particular ground, the Supreme Court is authorized to consid-er the briefs filed in that court, not for the purpose of reversing its judgment, but for th.e purpose only .of determining -whether, by.-considering .other assignments' therein, fit'could affirm such" judgment.” See Texas Employers Ins. Ass’n v. Kennedy, 135 Tex. 486, 143 S.W.2d 583; Driver v.

Worth Construction Co., 154 Tex. 66, 273 S.W.2d 603; Garcia v. Moncada, 127 Tex. 453, 94 S.W.2d 123. These “ground rules” which have •evolved through the years aré-usually applied in’the' ordinary case where each of several points of error in the Court of Civil Appeals, if sustained, would require that the judgment of the trial court be reversed. All complaints of that nature must be considered and overruled-before the intermediate court can properly affirm..

If it does affirm and the appellant brings forward only some of the points in his application for writ of error, his other points in the Court of Civil Appeals are -deemed to be waived, whether passed on by that court or not. This is so because the intermediate court plainly errs when it affirms- without considering a contention that might lead to a reversal, arid the burden is on the ■ losing party to complain of the error if he wishes us to pass on the question.

When the Court of Civil Appeals reverses in the ordinary case mentioned above, it will either .render or remand as may be required by the point or points of error which are sustained. The losing party must then bring forward for review all rulings of the intermediate court which .led to a reversal. If we decide that its holdings on these, questions are unsound, the brief of the prevailing party in the Court .of Civil Appeals may be examined to'determine whether there are other points of error which warrant an affirmance of its judgment on a ground hot" considered by the intermediate court. See Meyer v.

Great American Indemnity Co., 154 Tex. 408, 279 S.W.2d 575. We may 'also remand, the cause to the Court of Civil Appeals to enable it to pass on points of the prevailing party there which were1 rendered immaterial under its initial holding, even though the sustaining' of such points would le'ad to a judgment different from that originally entered-by the - intermediate court. See Wood v. Kane Boiler Works, 150 Tex. 191, 238 S.W.2d 172; Ritchie v. American Surerty Co., 145 Tex. 422, 198 S.W.2d 85; Baker v. Baker, 143 Tex. 191, 183 S.W.2d 724; Block v.

Aetna Casualty & Surety Co., 138 Tex. 420, 159 S.W.2d 470; McKenzie Construction Co. v. City of San Antonio, 131 Tex. 474, 115 S.W.2d 617. • This is not one of the ordinary cases, and •in our opinion is not governed by the general rules, discussed above. The judgment of the trial court can rest upon two independent grounds, and both rulings of that court were brought to the Court of Civil Appeals for review.

After overruling the -attack on one of such grounds, the intermediate court was not required to and did not pass on the appellant’s points of error •which challenged the other ground. .The .appellant then came to us with an-application for writ of error .which asserts that the holding of the Court of Civil Appeals on the question decided there is erroneous hut does not mention the negligence and causation points that were not considered, and we have concluded that the points of error brought forward in the application should be sustained.

There appear to be only two previous cases in which this situation has arisen. In one of them the procedural problem with which we are now concerned was not raised, and the Commission of Appeals took the position that it was under a duty to pass on the question not considered by the Court of Civil Appeals. Elliott v. Wallace, Tex.Com.App., 59 S.W.2d 109.

In the other case, the defendants in error argued at length, as respondent does here, that the judgment of the trial court should be affirmed because it could rest on a ruling not considered by the Court of Civil Appeals and not brought forward in the application for writ of error. This practice question was not decided, because the assignment of error was treated by the Supreme Court as being sufficiently broad to embrace all rulings made by the trial court. Independent Eastern Torpedo Co. v. Herrington, 128 Tex. 17, 95 S.W.2d 377.

A careful and seasoned appellate practitioner would have included in his application for writ of error a point asserting that the Court of Civil Appeals erred in failing to consider and sustain the points of error dealing with negligence and causation. Respondent says, in effect, that the failure to do so here requires us to affirm the judgment of the trial court no matter how erroneous it may be. That approach might save the Supreme Court some time, but it is also calculated to entrap the inexperienced appellate advocate. The attack in this Court is upon the judgment of the Court of Civil Appeals.

That judgment rests squarely upon a single holding, which has been brought forward for review. When it is determined, as we have in this instance, that the conclusion reached by the intermediate court is unsound, it would certainly be proper to remand the cause to that court for a ruling on the points of error not previously considered by it. Since these points present only law questions, however, we can and do dispose of them now instead of requiring the parties to go back to the Court of Civil Appeals-and then possibly return here with a second application for writ of error.

In our opinion the evidence raises issues of negligence and causation that can be resolved only by the trier of fact, and the trial court erred in granting respondents’ motion for instructed verdict. In Jecker v. Western Alliance Ins. Co., Tex.Sup., 369 S.W.2d 776, and Rogers v. Winters, 161 Tex. 451, 341 S.W.2d 417, the Court of Civil Appeals reversed and rendered judgment for the appellant.

After concluding that the holding of the intermediate court on the question considered by it was unsound, we refused to pass on other points of the appellant in that court which might have entitled the appellant to a reversal and remand or modification of the trial court’s judgment. It was reasoned that such complaints would, if sustained, result in an alteration of the judgment of the Court of Civil Appeals, and therefore could not be considered unless brought to this Court by crosspoint. These holdings of Jecker and Rogers are not consistent with the line of cases represented by Wood v.

Kane Boiler Works, supra, and will not be followed in the future. The judgments of the courts below are reversed, and the cause is remanded to the district court for a new trial.