Appeal from order of Court of Common Pleas No. 6 of Philadelphia County, June T., 1960, No. 4146, in case of Domingos Grota v. A. Charles LaBoccetta, Albert A. Bockman, Leon Weiner et al.
Francis E. Shields, for appellants.
Harry Lore, with him Dorfman, Pechner, Sacks & Dorfman, for appellee.
Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Mr. Justice Jones concurs in the result. Mr. Justice Cohen took no part in the consideration or decision of this case. Concurring and Dissenting Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell and Mr. Justice Eagen join in this concurring and dissenting opinion.
On December 20, 1958, Domingos Grota, a police officer, was arresting a malefactor who, in a spirit of fighting not provided for in the Queensberry Rules of pugilism, sank his teeth into the hand of the arresting officer. The virulence of the attack was such that Grota had to be taken to the hospital (Philadelphia General Hospital) where he was examined and treated by Dr. Douglas Enoch, at that time either an intern or resident physician. Two days later he was again examined and treated in the same receiving ward by Dr. Kenneth Ender, also an intern or resident physician. Later he was taken to the special ward of the
hospital where he was treated by Dr. Frank J. Bott, another intern or resident physician. Still later, he was examined and treated at the City Employees' Compensation Clinic, a department of the Philadelphia General Hospital.
After a period of time, Grota's wound advanced into a septic state which called for amputation of the hand. This was done, leaving him not only minus a hand but with atrophy of the muscles of his left forearm.
He brought a suit in trespass against Doctors Enoch, Ender and Bott, who had treated him. He also included in his action, as defendants Doctors A. Charles LaBoccetta, Leon Weiner, Chalmers Loughridge and Alvan Kaplan on the proposition that they were in charge of and responsible for the receiving ward of the hospital where Doctors Enoch, Ender and Bott were acting as their servants, agents and employees. He further joined Dr. Albert A. Bockman as a defendant on the theory that the City Employees' Compensation Clinic was under his control and that, therefore, he was responsible for the actions of those employed in the clinic.
Service of the complaint could not be made on Dr. Enoch in Pennsylvania since he had moved to Minnesota. The plaintiff thus entered a separate suit against him in the United States District Court for the District of Minnesota, 4th Division. Dr. Enoch and the plaintiff entered into a settlement agreement of the Minnesota action.
The defendants LaBoccetta, Bott, Weiner, Kaplan and Bockman (upon whom service had been made in the State) now petitioned the Court of Common Pleas of Philadelphia County for leave to amend the answers previously filed by them (in which they had denied agency) so as to plead, in ...