McLaughlin, Forman and Ganey, Circuit Judges.
McLAUGHLIN, Circuit Judge.
In this medical malpractice action the wrong type of blood was administered to plaintiff's decedent during the course of an operation upon him. In addition, one of two sponges left in the patient after the completion of the operation was never removed. At the first trial there were judgments in favor of the surgeon in charge, Dr. Lipshutz and the anesthesiologist, Dr. Chodoff. On appeal we reversed the judgment in favor of Dr. Lipshutz and ordered a new trial. We affirmed the judgment in favor of Dr. Chodoff. Mazer v. Lipshutz, 327 F.2d 42 (3 Cir. 1963), rehearing den. 1964. We held pp. 45, 46, "There was ample evidence that the administration of the wrong type of blood was a substantial factor in causing his death and also that it was the sole cause of death. There was also proof that the unremoved sponge was a contributing cause." We restricted the new trial to "Dr. Lipshutz's vicarious liability in relation to Kohn as delineated above." (p. 52). Kohn was the "head technician in charge of the hospital's blood bank," (p. 44). He was a third-party defendant.
At the second trial the jury found Dr. Lipshutz was vicariously liable for the negligence of Kohn and rendered a verdict in favor of the plaintiff and against the Estate of Dr. Lipshutz for $89,318 and for the same amount in favor of the Estate of Dr. Lipshutz and against Kohn. As in the first trial, a release and covenant not to sue by plaintiff releasing the hospital and its employees for a consideration of $60,000 had been put into evidence outside the hearing of the jury. On defense motions, the trial judge, taking into consideration the $60,000 paid by the hospital, reduced both judgments to $29,318. Plaintiff has appealed from the reduction of the amount of his judgment. The Lipshutz estate and Kohn have appealed from the order refusing to grant them judgments n.o.v.
The defense argument against plaintiff's judgment centers around the above mentioned release. We note that this affirmative defense was never pleaded on behalf of Lipshutz. Though this is a clear violation of Federal Rule of Civil Procedure 8(c) we do not find even a mention of it in the Lipshutz briefs. There was no objection to the admission of the release into evidence because of non compliance with Rule 8(c). The release was admitted into evidence. It was also in evidence at the first trial. Under the circumstances, the point on appeal that the failure to plead the release affirmatively forecloses the defense relying on it has no validity.
This brings us to the substantial question on the merits, namely, whether the release plaintiff gave the hospital merely reserved his rights against Dr. Lipshutz for any individual negligence on his part and so excluded vicarious liability of Dr. Lipshutz. The document in question is a Pennsylvania joint tort feasor release under the Contribution Among Tort Feasors Act of that Commonwealth (12 P.S. 2082-2089). It releases the hospital, its successors and assigns from all claims arising out of the injuries sustained by the plaintiff's decedent in the accident involved. Then follows in pertinent part the controverted paragraph:
"We reserve the right to make claims against any and every person, association or corporation other than Albert Einstein Medical Center, its agents and employees, expressly excluding from this release and reserving rights particularly to claims against Dr. Benjamin Lipschutz, Dr. Peter Chodoff and Dr. David Meranze and any other physician attending the decedent, on account of the accident, injuries and damages sustained by us at the time and place above mentioned. We reserve also the right to claim that such other person, association or corporation is solely liable to us. But for the consideration paid us herein, we further agree that execution of this release shall operate as a satisfaction of our claims against any person, association or corporation other than Albert Einstein Medical Center to the extent of the pro rata share of common liability of Albert Einstein Medical Center."
The exact same issue was raised by the Lipshutz defense in the first appeal. In our opinion, after stating the facts, we held, Mazer v. Lipshutz, supra, p. 50:
"In view of the foregoing it follows that the jury under proper instructions would have been entitled to find Dr. Lipschutz, as the captain of the ship, vicariously liable for the administration of incompatible blood to Professor Abrams."
Later on in the opinion, pp. 54-55, we took up the defense contention that the release barred recovery by the plaintiff against Dr. Lipshutz for vicarious liability and said:
"Dr. Lipschutz's executrix asserts that a release executed by the plaintiff in favor of the hospital, its agents, and employees, but expressly reserving rights against Dr. Lipschutz, bars the plaintiff from recovering a judgment against the doctor. Appellee's argument is pitched on the ground that the situation presented is not one of joint tortfeasors but one of primary and secondary liability. Therefore, she asserts, if the one primarily liable be discharged, the release operates to discharge anyone secondarily responsible, citing the Restatement, Security, Section 122. But the executrix has mistaken the positions of the hospital and of Dr. Lipschutz. They were joint tortfeasors, both vicariously liable. In any event, Section 122 of the Restatement provides that the surety is not discharged if as here, 'the creditor in the release reserves his right against the surety.' The law of Pennsylvania on the subject of joint tortfeasors is clearly applicable to this issue and decides it in favor of the plaintiff. See 12 P.S. Sections 2082-2089."
We find no justification for the defense position that the true meaning of the release is that it only excludes what is designated as "individual negligence" of Dr. Lipshutz. The latter has been found to be a principal in the operating room, the captain of the operating ship. As such he then, just as much as the hospital, was a primary tort-feasor. Kohn was an employee of the hospital. Kohn, during the operation, was also a subordinate of Dr. Lipshutz who was in charge of the operation. The release to the hospital, its agents and employees on its face did not release Kohn as a vitally important aid of the surgeon in the latter's overall performance of the operation. The hospital was not a party to the Lipshutz suit. There is no judicial finding anywhere in the litigation that Kohn during the operation was acting as an agent of the hospital. The exclusion from the release of plaintiff's rights against Dr. Lipshutz contains no restriction whatsoever. It protects plaintiff's " claims against Dr. Benjamin Lipshutz * * * on account of the accident, injuries and damages sustained by us at the time and place above mentioned." (Emphasis supplied). All liability of Dr. Lipshutz is clearly included in that unambiguous language. To say that it wiped out the doctor's responsibility for the conduct and acts of his technical assistants merely because they were also employees of the hospital is to misread the release itself and all of the pertinent facts. Pennsylvania law which governs upholds the sound doctrine that a servant may have two masters at one time. McConnell v. Williams, 361 Pa. 355, 361, 65 A.2d 243 (1949) dealt with a surgical operation with collateral negligence by a hospital intern who was assisting the surgeon in charge at the latter's request. The court held that the intern "* * * thereby became -- or at least so a jury might find -- his temporary servant for the purpose for which he was engaged". To the same effect Restatement of Agency § 226, Siidekum v. Animal Rescue League, 353 Pa. 408, 45 A.2d 59 (1946). Beyond doubt the release here did not release the principal Lipshutz from any of his responsibility arising out of the operative procedure. The hospital employee Kohn was functioning as the agent of the operating surgeon during the critical period. The negligence of which he was found guilty at that time was properly attributed to his superior, Dr. Lipshutz.
We have examined appellant's other specific points on this question. They are without merit and need no discussion.
The remaining problem before us concerns the reduction by the trial judge of plaintiff's verdict against the defendant Lipshutz from $89,318 to $29,318. The judge, on application of the defense, subtracted the amount paid by the hospital for its release from plaintiff's verdict against ...