GARDNER, J.
Plaintiff’s minor daughter, Clara Byers, underwent an operation for appendicitis at Woodlawn Infirmary, performed by Dr. J. H. Stephens, and subsequent thereto developed tetanus or lockjaw, from which disease she died. Plaintiff sued the infirmary and Dr. Stephens to recover damages for the death of his daughter, alleged to have been produced by a want of reasonable care, skill, and diligence in her treatment.
At the close of plaintiff’s evidence, defendant offered no proof, and the cause was submitted to the jury, resulting in a judgment for the plaintiff, from which defendants have prosecuted this appeal.
The first questions presented relate to the sufficiency of the complaint and the action of the court in refusing the affirmative charge for the defendants, duly requested in writing. The complaint was sufficient as against any demurrer interposed thereto. McCoy v. L. & N. R. Co., 146 Ala. 333, 40 So. 106; Powell v. Thompson, 80 Ala. 51.
The Woodlawn Infirmary (according to the complaint and the proof) was engaged in the operation and conduct of a hospital for the treatment of patients, for a reward, affected with physical ailments, and Dr. J. H. Stephens was the physician or surgeon by and through whom the said infirmary undertook to treat patients. As said in Carpenter v. Walker, 170 Ala. 659, 54 So. 60, Ann. Cas. 1912D, 863:
“The allegations as to a contract are mere matters of inducement and to show the relation between the parties, and * * *
that there
was a breach of a duty, owing by the defendant to the plaintiff, based upon or growing out of the contractual relations between the parties.”
The following excerpt from the opinion in McCoy v. L.
& N.
R. Co., supra, is here pertinént in respect to both the pleading and the proof:
“Where one has received an injury at the hands of two or more persons acting in concert, or acting independently of each other, if their acts unite in causing a single injury, all of the wrongdoers are liable for damages occasioned by the injury. It is also manifest that this single injury, in. itself or of itself indivisible, constitutes an indivisible cause of action. This is true notwithstanding the fact that the party injured could maintain separate suits on this cause of action against the tort-feasors at the same time, and could have sued them jointly, and the mere pendency of suit or judgment without satisfaction could not be set up in defense by either tort-feasor.”
See, also, Ala. Power Co. v. Talmadge, 207 Ala. 86, 93 So. 548.
Plaintiff’s daughter was a patient both of the infirmary and Dr. Stephens, the latter having the management and control of the former, its alter ego, as it were. There was no such fatal variance between the allegations and the proof as to justify giving the affirmative charge for defendants. Hackney v. Perry, 152 Ala. 626, 44 So. 1029.
The rule is recognized in this state that the burden of proof is not shifted from the plaintiff by showing that an unsuccessful result has attended the treatment of the patient by the physician. “The doctrine of res ipsa loquitur does not apply to the mere fact of a blood infection, however closely, in temporal sequence, it may follow a medical treatment.” Moore v. Smith, Adm’x, 215 Ala. 592, 111 So. 918.
“A civil action for malpractice against a physician and surgeon may be sustained on proof of a failure to exercise reasonable and ordinary care, diligence and skill in respect to the duty so assumed and undertaken as physician and surgeon-such care and skill as physicians and surgeons in the same general neighborhood, pursuing the same general line of practice, ordinarily employ and exercise in a like case.” Moore v. Smith, Adm’x, supra, and authorities .therein cited.
A larger portion of the remaining questions relate to rulings on defendants’ objections to evidence offered by plaintiff.
It may be here remarked that the evidence of plaintiff tended to show concurrent negligence of defendants, that is, as to the infirmary negligence as to the matter of cleanliness of the floor and.the method of sweeping with broom, causing dust, rather than the use of mops (as shown to be in use in hospitals generally), improper sterilization of instruments, and insufficient heating of the rooms in which plaintiff’s daughter was, and improper care of the wound following the operation, togeth
er with a lack of necessary serum when needed in her case.
The jury, from the evidence, might reasonably infer that the major portion of these deficiencies were known to defendant Stephens, who was in control of the infirmary, and who so far as the proof shows took no steps to remedy the same. Robinson v. Crotwell, 175 Ala. 194, 57 So. 23.
It would seem the proof also was sufficient for submission to the jury of the question as to whether or not there was unreasonable delay in the ascertainment of the condition of plaintiff’s daughter as to lockjaw, and whether or not the known remedies were applied with sufficient diligence and promptness.
From this brief outline of the case, we think it sufficiently appears that the authorities relied upon by appellants are readily distinguishable. Tucker v. Mobile Infirmary Ass’n, 191 Ala. 572, 68 So. 4, L. R. A. 1915D, 1167; Barfield v. South Highland Infirmary, 191 Ala. 553, 68 So. 30, Ann. Cas. 1916C, 1097; Hamrick v. Shipp, 169 Ala. 171, 52 So. 932; Parsons v. Yolande Coal & Coke Co., 206 Ala. 642, 81 So. 493.
We have above indicated our view that the evidence the floors were dirty, swept by a broom, thus producing dust, and that the room was cold and uncomfortable was properly admitted.
While, of course, the rule is well established that the declarations or conduct of one professing to be an agent of another cannot be received as evidence against the principal without independent proof of the agency, yet we think the evidence sufficient for the jury to infer that Dr. Smith, who assisted in the operation and who took Dr. Stephens’ place in his absence, was in fact the agent of both defendants. His statement, therefore, made while acting in the line and course of his duties, as to a lack of serum in the infirmary when needed, was properly admitted. Ala. Power Co. v. Talmadge, supra.
The testimony for plaintiff, by the physician who testified as his witness, discloses that tetanus or lockjaw is infectious and contagious, and the germ may be communicated through the dust falling into the wound. Indeed, this is one of the conjectures of defendant Stephens according to plaintiff’s testimony. Of course, the disease germ may get into the wound from the intestinal tract of the patient, and as to how one becomes so infected is, of course, largely a matter of conjecture.
In view of the evidence above referred to and the infectious and contagious character of the disease of tetanus, we think it competent to show that at the same infirmary another patient died of this disease just a few days before the death of plaintiff’s daughter. Gadsden Gen. Hospital v. Bishop, 209 Ala. 272, 96 So. 145. But the evidence was permitted to take a wider range and to the prejudice of defendants.
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GARDNER, J.
Plaintiff’s minor daughter, Clara Byers, underwent an operation for appendicitis at Woodlawn Infirmary, performed by Dr. J. H. Stephens, and subsequent thereto developed tetanus or lockjaw, from which disease she died. Plaintiff sued the infirmary and Dr. Stephens to recover damages for the death of his daughter, alleged to have been produced by a want of reasonable care, skill, and diligence in her treatment.
At the close of plaintiff’s evidence, defendant offered no proof, and the cause was submitted to the jury, resulting in a judgment for the plaintiff, from which defendants have prosecuted this appeal.
The first questions presented relate to the sufficiency of the complaint and the action of the court in refusing the affirmative charge for the defendants, duly requested in writing. The complaint was sufficient as against any demurrer interposed thereto. McCoy v. L. & N. R. Co., 146 Ala. 333, 40 So. 106; Powell v. Thompson, 80 Ala. 51.
The Woodlawn Infirmary (according to the complaint and the proof) was engaged in the operation and conduct of a hospital for the treatment of patients, for a reward, affected with physical ailments, and Dr. J. H. Stephens was the physician or surgeon by and through whom the said infirmary undertook to treat patients. As said in Carpenter v. Walker, 170 Ala. 659, 54 So. 60, Ann. Cas. 1912D, 863:
“The allegations as to a contract are mere matters of inducement and to show the relation between the parties, and * * *
that there
was a breach of a duty, owing by the defendant to the plaintiff, based upon or growing out of the contractual relations between the parties.”
The following excerpt from the opinion in McCoy v. L.
& N.
R. Co., supra, is here pertinént in respect to both the pleading and the proof:
“Where one has received an injury at the hands of two or more persons acting in concert, or acting independently of each other, if their acts unite in causing a single injury, all of the wrongdoers are liable for damages occasioned by the injury. It is also manifest that this single injury, in. itself or of itself indivisible, constitutes an indivisible cause of action. This is true notwithstanding the fact that the party injured could maintain separate suits on this cause of action against the tort-feasors at the same time, and could have sued them jointly, and the mere pendency of suit or judgment without satisfaction could not be set up in defense by either tort-feasor.”
See, also, Ala. Power Co. v. Talmadge, 207 Ala. 86, 93 So. 548.
Plaintiff’s daughter was a patient both of the infirmary and Dr. Stephens, the latter having the management and control of the former, its alter ego, as it were. There was no such fatal variance between the allegations and the proof as to justify giving the affirmative charge for defendants. Hackney v. Perry, 152 Ala. 626, 44 So. 1029.
The rule is recognized in this state that the burden of proof is not shifted from the plaintiff by showing that an unsuccessful result has attended the treatment of the patient by the physician. “The doctrine of res ipsa loquitur does not apply to the mere fact of a blood infection, however closely, in temporal sequence, it may follow a medical treatment.” Moore v. Smith, Adm’x, 215 Ala. 592, 111 So. 918.
“A civil action for malpractice against a physician and surgeon may be sustained on proof of a failure to exercise reasonable and ordinary care, diligence and skill in respect to the duty so assumed and undertaken as physician and surgeon-such care and skill as physicians and surgeons in the same general neighborhood, pursuing the same general line of practice, ordinarily employ and exercise in a like case.” Moore v. Smith, Adm’x, supra, and authorities .therein cited.
A larger portion of the remaining questions relate to rulings on defendants’ objections to evidence offered by plaintiff.
It may be here remarked that the evidence of plaintiff tended to show concurrent negligence of defendants, that is, as to the infirmary negligence as to the matter of cleanliness of the floor and.the method of sweeping with broom, causing dust, rather than the use of mops (as shown to be in use in hospitals generally), improper sterilization of instruments, and insufficient heating of the rooms in which plaintiff’s daughter was, and improper care of the wound following the operation, togeth
er with a lack of necessary serum when needed in her case.
The jury, from the evidence, might reasonably infer that the major portion of these deficiencies were known to defendant Stephens, who was in control of the infirmary, and who so far as the proof shows took no steps to remedy the same. Robinson v. Crotwell, 175 Ala. 194, 57 So. 23.
It would seem the proof also was sufficient for submission to the jury of the question as to whether or not there was unreasonable delay in the ascertainment of the condition of plaintiff’s daughter as to lockjaw, and whether or not the known remedies were applied with sufficient diligence and promptness.
From this brief outline of the case, we think it sufficiently appears that the authorities relied upon by appellants are readily distinguishable. Tucker v. Mobile Infirmary Ass’n, 191 Ala. 572, 68 So. 4, L. R. A. 1915D, 1167; Barfield v. South Highland Infirmary, 191 Ala. 553, 68 So. 30, Ann. Cas. 1916C, 1097; Hamrick v. Shipp, 169 Ala. 171, 52 So. 932; Parsons v. Yolande Coal & Coke Co., 206 Ala. 642, 81 So. 493.
We have above indicated our view that the evidence the floors were dirty, swept by a broom, thus producing dust, and that the room was cold and uncomfortable was properly admitted.
While, of course, the rule is well established that the declarations or conduct of one professing to be an agent of another cannot be received as evidence against the principal without independent proof of the agency, yet we think the evidence sufficient for the jury to infer that Dr. Smith, who assisted in the operation and who took Dr. Stephens’ place in his absence, was in fact the agent of both defendants. His statement, therefore, made while acting in the line and course of his duties, as to a lack of serum in the infirmary when needed, was properly admitted. Ala. Power Co. v. Talmadge, supra.
The testimony for plaintiff, by the physician who testified as his witness, discloses that tetanus or lockjaw is infectious and contagious, and the germ may be communicated through the dust falling into the wound. Indeed, this is one of the conjectures of defendant Stephens according to plaintiff’s testimony. Of course, the disease germ may get into the wound from the intestinal tract of the patient, and as to how one becomes so infected is, of course, largely a matter of conjecture.
In view of the evidence above referred to and the infectious and contagious character of the disease of tetanus, we think it competent to show that at the same infirmary another patient died of this disease just a few days before the death of plaintiff’s daughter. Gadsden Gen. Hospital v. Bishop, 209 Ala. 272, 96 So. 145. But the evidence was permitted to take a wider range and to the prejudice of defendants.
Plaintiff was allowed to show from the cards of the health department of Birmingham, and by the testimony of the statistical clerk of that department, that in the entire city of Birmingham during ten months of the year in which plaintiff’s daughter died, there were only three deaths from tetanus among the white population, and that two of these were in the defendant infirmary. The trial court first ruled against the admission of this evidence, but upon further argument and consideration permitted its introduction over defendants’ objection. We think the court’s first impression was the correct one. This was a collateral inquiry, and no effort made to show similar conditions as to patients or otherwise. The inquiry did not involve a matter of knowledge or intent, and does not come within any of the recognized exceptions to the rule as to inadmissibility of collateral facts.
In Mayor, etc., of Birmingham v. Starr, 112 Ala. 98, 20 So. 424 (a suit for damages sustained by walking on defective sidewalk), it was held inadmissible to show that other people at different times had fallen at the same place, the court saying:
“It was a collateral inquiry and, not involving knowledge or intent, does not come within the exception as to collateral facts.”
See, also, Perrine v. Southern Bitulithic Co. et al., 190 Ala. 96, 66 So. 705; Southern R. Co. v. Lefan, 195 Ala. 295, 70 So. 249; 1 Greenl. on Evidence, § 448; Jones on Evidence (2d Ed.) § 137 et seq., and § 163.
As we have previously stated, the evidence as to the other patient dying at this infirmary a few days before the death of plaintiff’s daughter was admissible in view, of the contagious and infectious character of the disease, and should not be further extended to serve a double purpose of comparison with other infirmaries. Proof as to the matter of such collateral inquiry opens wide the door to speculation and conjecture, and if to be met by the defendants would require much inquiry into these collateral issues.
We are of the opinion the above authorities suffice to show the inadmissibility of such evidence. By this proof a comparison (unfavorable to defendants) was drawn between defendant infirmary and its physician and all other infirmaries and physicians in the city of Birmingham for a period of 10 months. It shows, as argued by counsel for plaintiff in the court below, that it is a rare disease, but, further, that of only three eases in the city during that period, two of them were at the defendant infirmary. That the evidence was of a highly prejudicial character admits of no serious doubt, and its admission must result in a reversal of the cause. The objections to this proof were timely, and exceptions duly reserved. Birmingham R., Light & Power Co. v. Barrett, 179 Ala. 274, 60 So. 262.
The two cards as to the death of plaintiff’s
daughter and the other patient at the infirmary, offered in evidence by plaintiff, were not introduced in evidence subsequently by defendant’s counsel, as expressly so stated by counsel on page 56 of the transcript. There is nothing in the record disclosing that the error here committed was cured, as argued by appellee.
It results that the judgment will be reversed and the cause remanded for another trial.
Reversed and remanded.
ANDERSON, O. X, and SAVRE and BOULDIN, JX, concur.