For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Proctor, J.
The plaintiff, George Beadling, seeks damages from Dr. E. Bernard Sirotta, a radiologist, for injuries and losses sustained as the result of an allegedly negligent diagnosis and report made by the doctor respecting the health of the plaintiff. He also seeks damages from Samuel M. Langston Company on the theory of respondeat superior, contending that Dr. Sirotta was the agent of Langston in making the diagnosis and report.
This case is before us for the second time. In Beadling v. Sirotta, 39 N.J. 34 (1962), we vacated an order of the
Appellate Division granting leave to the defendants to appeal from the interlocutory order denying their motion for summary judgment (see 71 N.J. Super. 182 (Law Div. 1961)), for the reason that pertinent facts relevant to the legal issues there involved were not set forth in the record. On remand, the trial court, sitting without a jury, found in favor of the plaintiff against both defendants and awarded damages of $4,700. Both defendants appealed, and while the matter was pending in the Appellate Division, we certified it on our own motion. R.R. 1:10-1(a).
The issues raised on this appeal are whether Dr. Sirotta breached a duty owed by him to the plaintiff resulting in plaintiff's losses, and if so, whether defendant Langston is vicariously liable for Dr. Sirotta's negligence. Since we find that negligence by Dr. Sirotta has not been established, both defendants must prevail on this appeal, and it is unnecessary for us to consider the question of vicarious liability.
Plaintiff sought employment on September 15, 1958, as a machinist with the defendant Langston. His technical qualifications were acceptable, and pursuant to the practice of the company, he was asked to take a pre-employment physical examination which included a chest X-ray. He was referred to Dr. Paul T. Milnamow, the plant physician, for the physical examination, and an appointment was made for him with Dr. Sirotta for the following day for the X-ray. Accordingly, on September 16, 1958, Dr. Sirotta at his office took an X-ray of plaintiff's chest. The X-ray was developed while plaintiff waited. Dr. Sirotta, finding some abnormality, asked the plaintiff whether he had ever been in a sanitarium, when he had last had a chest X-ray, and whether he had recently had a chest cold or a history of a chest condition. Plaintiff said he might have had an X-ray in 1955 and that he had never been in a sanitarium and had no history of chest trouble. He then asked the doctor if something was wrong and if it would keep him from getting a job. The doctor answered affirmatively to both questions but did not reveal the nature of the trouble. He told the plaintiff to report back to Langston.
Upon his return to the Langston plant, plaintiff discussed the results of the X-ray with the assistant personnel manager, Stephen Monoky. According to the plaintiff, Monoky told him he had reinfected active tuberculosis and advised him to consult his family physician. Plaintiff nevertheless asked whether there was not some other position he could fill and was told that under the circumstances there was none.
Dr. Sirotta testified that he telephoned the nurse at the Langston plant and, based on his reading of the wet plate, told her that there was a suggestion of reinfection tuberculosis. The nurse testified that she received a telephone call from Dr. Sirotta's office reporting the wet reading of the X-ray as unacceptable since it showed areas which were not normal. She transmitted this information to Monoky, who testified that he told the plaintiff his X-ray showed lesions or shadows which indicated a possibility of tuberculosis and suggested that he see his family doctor to determine whether or not he had the disease.
Dr. Sirotta sent a written report of his radiographic examination of the plaintiff's chest to Dr. Milnamow. The letter, dated September 16, 1958, was received at the Langston plant two or three days later. It contained the following report:
"Radiographic examination of the chest revealed the following:
There is an area of infiltration involving a good portion of the upper right lung representing active reinfection pulmonary tuberculosis. I cannot detect any cavitation at this time. A pleura diaphragmatic adhesion is at the left base. The remaining lung ...