WILLS, M.D., Appellees
 463 S.W.2d 710, 62 Tenn. App. 424
 Certiorari Denied by Supreme Court February 16, 1971.
 APPELLATE judges:
 MATHERNE, J., wrote the opinion.
Carney, P.J., and Nearn, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MATHERNE
At the close of plaintiff's proof in chief the Trial Judge directed a verdict in favor of the general practitioner Dr. John R. Wills. The jury rendered a verdict in favor of the two defendant orthopedic surgeons, and a judgment was entered dismissing plaintiff's lawsuit. The plaintiff has appealed to this Court listing twenty-six Assignments of Error. We deem it more expedient, after a brief review of the case, to individually consider these Assignments of Error, rather than to state at this point the many issues raised thereby.
On Saturday, June 9, 1972, at about 4:00 P.M. the plaintiff Cindy McCay fell from a swing and injured her left forearm. The obvious deformity of the arm prompted her parents to rush her to the Methodist Hospital in Memphis, Tennessee where they asked for their family physician the defendant Dr. John R. Wills. Dr. Wills instructed the hospital to call in Dr. B. G. Mitchell an orthopedic surgeon to whom he referred orthopedic cases. Dr. Mitchell came to the emergency room and took over the care of Cindy.
The hospital medical records signed by Dr. Mitchell reveal the diagnosis was a compound fracture of both bones of the left forearm; the immediate treatment was a debridement and repair of the compound wound. The fracture was reduced by closed reduction, a plaster of paris splint and circular cast was applied to the left arm from half way between the elbow and shoulder down over the knuckles of the left hand.
The record reveals Cindy experienced pain with increasing intensity from the time she was discharged from the hospital on Sunday, June 10, 1962, until the pain stopped at about 3:00 A.M. on Thursday, June 14, 1962. Dr. Mitchell's day off is on each Thursday. On Wednesday night, June 13, 1962, the parents called for their physician, Dr. Mitchell, and were put in contact with the defendant Dr. Paul H. Williams, who advised them he was looking after Dr. Mitchell's patients. On the advice of Dr. Williams the parents took Cindy to his office on Thursday, June 14, 1962 at which time Dr. Williams removed the circular cast. The evidence conflicts as to whether he removed the splint and actually examined the left arm. The circular cast was replaced and Cindy was sent home. That afternoon Cindy became somewhat irrational and either Dr. Williams or the receptionist at his office advised the parents to take Cindy to their family physician, Dr. John R. Wills. The evidence conflicts as to why Cindy was referred to Dr. Wills, but she was taken to his office on Thursday afternoon, June 14, 1962. The next morning Cindy was taken to Dr. Mitchell, who had returned from his day off, and upon his seeing the blue color of Cindy's left hand and the swelling thereof he immediately removed the cast and had her admitted to the hospital. That afternoon vascular surgery was performed by Dr. J. C. Lougheed in an attempt to open the arteries to permit the flow of blood. The operation was repeated on June 16th and 23rd. The operations were not successful and on June 25, 1962 Dr. mitchell amputated the left forearm of Cindy McCay at a point just below the elbow.
It is not necessary to review in detail all the facts involved in the foregoing brief statement of the history of this unfortunate experience. The plaintiff insists the defendant doctors were negligent in permitting an infection to develop beneath the tight circular cast; this infection caused a swelling within the cast, which in turn shut off the supply of blood resulting in gangrene. The defendants contend the blood was shut off due to a vascular spasm in the left arm and not because of any infection. There was material evidence before the jury on both theories and the finding for the defendant doctors is supported thereby. This review is therefore limited to a review of errors allegedly committed by the Trial Judge which were prejudicial to the plaintiff and which he plaintiff insists constitute reversible error.
As to the condition of Cindy's left forearm on June 15, 1962, when the cast was removed by Dr. Mitchell, that doctor admitted gangrene was present in the arm on that date. Dr. J. C. Lougheed admitted on this date there was dead, rotten and necrotic muscle in the left forearm, and the left hand and arm up to the elbow were completely cyanotic. Dr. Lougheed also signed an official medical record which revealed when he opened the skin of the left forearm along the course of the radial artery a purulent necrotic material excluded from the underpressure. Both Dr. Mitchell and Dr. Lougheed testified the cause of the stoppage of blood in the left forearm was a vascular spasm.
Assignment of Error I raises the issue as to what extent the statement and admission of one doctor defendant would be binding on his doctor co-defendants not present at the time the statement was made. The Trial Judge held all such statements to be hearsay as to the doctor co-defendants not present at the time the statement was made and instructed the jury to apply that rule to all statements and admissions of each doctor made in the absence of any doctor co-defendant. The Trial Judge instructed the jury statements so made by a doctor defendant could be considered only as evidence against that defendant. Under the facts of this case we feel the Trial Court's rulings and instructions were too broad. As stated in Wigmore on Evidence, 3rd Ed., Vol. IV, sec. 1078 (1940), "This question, frequently enough a difficult one, depends upon the doctrine of Agency applied to the circumstances of the case, and not upon any rule of Evidence." See also: 2. am.Jur.2d, Evidence, sec. 662, p. 712.
Other than in a partnership situation, the general rule is a physician who is unable to care for a patient may send a substitute to care for the patient, and no liability attaches for negligence of the substitute absent agency or negligence in the selection of the substitute. See cases annotated in 85 A.L.R.2d 889. See also: 41 Am.Jur., Physicians and Surgeons, sec 114, p. 226; 70 C.J.S. Physicians and Surgeons sec. 54d, p. 978. Assuming there was no negligence in the selection of Dr. Williams, the question remains as to when is the substitute doctor the agent of the employed doctor?
In Wilson v. Martin Memorial Hospital (1950) 232 N.C. 362, 61 S.w.2d 102, the plaintiff employed a Dr. Ashby for care during pregnancy and childbirth. When birth pains began the plaintiff reported to the hospital and asked for Dr. Ashby as he had instructed her to do. Instead of Dr. Ashby responding to care for plaintiff, a Dr. Telle, whom the plaintiff did not know, came in her room and said Dr. Ashby had arranged for him to care for Dr. Ashby's patients. After considerable difficulty with labor an operation was performed by Dr. Telle in order to effect the delivery. There was evidence this surgery was negligently performed and the plaintiff was seriously injured thereby. The Court sustained the dismissal of plaintiffs suit as to the hospital, but remanded for a new trial as to Dr. Telle and Dr. Ashby. On the issue of the status of the parties the Court stated:
"The plaintiff's evidence tends to show that Dr. AShby, who had been engaged to treat the plaintiff professionally in her pregnancy and childbirth, was absent at the time she entered the hospital for her accouchement and that he arranged for the plaintiff to be under the care of Dr. Telle, previously unknown to the plaintiff, who thereafter treated her. This would seem to permit the inference that Dr. Ashby thereby constituted Dr. Telle his agent for the performance of the necessary services to the plaintiff which he had contracted to render. Nash v. Royster, 189 N.C. 408, 127 S.E. 356."
We agree with the rule as announced in the North Carolina case. Agency is a question of fact under the circumstances of the particular case; and whether an agency has been created is to be determined by the relation of the parties as they in fact exist under their agreement or acts. Smith v. Tennessee Coach Co. (1946) 183 tenn. 676, 194 S.W.2d 867; Rich Printing Co. v. McKellar's Estate (1959) 46 Tenn. App. 444, 330 S.w.2d 361; Rural Educational Ass'n. v. Bush (1956) 42 Tenn. App. 34, 298 S.W.2d 761; 2 Am.Jur., Agency, secs. 23, 24, pp. 25-28.
The record reveals the parents of the child did not know Dr. Paul Williams. They called the doctor's exchange in Memphis on Wednesday night to contact their physician, Dr. Mitchell. They were referred to Dr. Williams because Dr. Mitchell had left instructions to refer his patients to Dr. Williams gave the parents instructions over the telephone, told them to call him back if necessary, and to bring Cindy to his office the next morning. The parents took the child to Dr. Williams the next morning and he examined the arm as heretofore noted. Dr. Mitchell testified Dr. Williams was acting for him (mitchell) when he treated Cindy McCay. Upon Dr. mitchell returning to his duties on Friday, he again took over the care and treatment of the plaintiff. There is ample material evidence from which the jury could have concluded Dr. Williams was the agent of Dr. Mitchell, acting within the scope of his authority and for the benefit of his principal, while treating and caring for Cindy McCay.
We therefore hold the Trial Court erred in the instructions to the jury, and the situation presents a question of fact as to whether Dr. Williams was, or was not, the agent of Dr. Mitchell. In situations of this nature the jury should be instructed on the law of agency, and if they find the existence of a principal-agent relationship then the rules applicable to that relationship would be applied as to any statement, admission, or act of the agent. Assignment of Error I is therefore sustained.
Assignment of Error II complains of the Trial Court's action in sustaining an objection to the reading of a question and answer from the pretrial discovery deposition of Dr. Mitchell. The question and answer excluded were:
"Q. Dr. Mitchell, did Mr. McKay ever suggest to you that he thought that the cast which had been applied to the left forearm of Cindy McKay was you that he thought that the cast which had been applied to the left forearm of Cindy mcKay was in any way responsible for the loss of his daughter's arm?
A. About the only thing that mr. McKay ever said to me about this particular business, and it seems rather ironical that he would say it - I recall two things that he said. The first thing that mr. McKay said to me when we arrived back in the room after setting the child's arm, and it was a rather grotesque deformity of the forearm the first thing that Mr. McKay said to me that I thought was rather ironical was, 'Doctor, is she going to lose her arm?' Quite naturally, I think one would suppose that in the normal practice of orthopedic surgery, never having seen anything like this, and from the simple type of fracture which she had sustained, my immediate suggestion to him was, that if no infection resulted as a result of this compound fracture, I would expect her to have a normal arm. The other thing that Mr. McKay said to me on a Friday morning in the repeatedly, and he never expanded or enlarged upon it - was that had I been there and seen this child on Thursday, we might never have progressed to that point. This was said to me, and I think probably in criticism of Dr. Williams, and again I thought it was somewhat ironical that this man would say that when I had treated his child, I had seen his child on every occasion except on one occasion, and yet that he would be inclined to put the blame for all of her problems on this man who had seen her for me. I felt that this was an unfair and unjustified position that he had taken, and I so informed him. Other than that, Mr. McKay suggested possibly that the cast was the cause. I don't know that he ever suggested to me that the cast was too tight. I think that he suggested that the cast was the cause of this thing, and so I don't recall when in the course of treatment, or when in the course of treating this child that this was said, I don't recall him ever saying anything to me about the cast prior to Friday. At some time or another after that, I do remember us discussing plaster casts, methods of application, and I went through a whole gamut of things with Mr. McKay about plaster, swlling, what happens after a fracture, and I tried my best to explain in detail to him every single thing about this case involving his daughter."
The objection sustained to this testimony was that at the time the deposition was taken there was another lawsuit by Mr. McCay against Dr. Mitchell filed after the statute of limitations had barred the action, in which case it was alleged Dr. Mitchell fraudulently concealed the cause of action from mr. McCay and the testimony was admissible under those allegations in that suit, but was irrelevant and immaterial to the present lawsuit.
In the present lawsuit the defendants stress the fact that they had no reason to suspect infection in the left arm of Cindy McCay. The conversation between Mr. McCay and Dr. Mitchell tends to establish Dr. Mitchell was of the opinion the arm would be all right if no infection resulted from the compound fracture. The statement admits the existence of a compound fracture which was a hotly contested question of fact in the lawsuit. This would tend to aid the jury in determining whether Doctor Mitchell used the proper degree of care in the treatment of the arm when there was material evidence from which the jury could find an infection did in fact develop in the left arm of Cindy McCay. We hold the testimony admissible as having some bearing on the issues of the lawsuit as contemplated by T.C.A. 24-1204 and 24-1208. Assignment of Error II is sustained.
Assignment of Error III presents the issue of whether the pre-trial discovery deposition of a party, taken before the deponent was made a party to the suit, may be introduced by the opposing party under the rules governing the introduction of the deposition of a party, or must such a deposition be introduced under the rules governing the deposition of a witness.
Defendant, Dr. John R. Wills, gave a pretrial discovery deposition at a time when he was not a party defendant to this lawsuit. After he was made a party defendant Dr. Wills gave another pre-trial discovery deposition. The former deposition was made an exhibit to the latter deposition. At the trial the plaintiff apparently intended to read as proof in chief portions of the first deposition given when Dr. Wills was a witness. The Trial Judge sustained the defendant's objection to the reading by the plaintiff of any portion of the deposition of Dr. Wills taken when he was a witness; disallowed the reading of any portion of the second deposition which referred to the first deposition; and disallowed the filing of the first deposition which had been made an exhibit to the second deposition. The Trial Judge applied the rules governing the introduction of the deposition of a witness, and excluded the testimony because Dr. Wills was present and available to testify. T.C.A. 24-1208.
It is true Dr. Wills was available to testify. However, we think the relationship of the parties at the time of the trial should govern the introduction of pre-trial discovery depositions, rather rhan their relationship at the time the deposition was taken. We deem this rule more wholesome than to hold the taking of the deposition of a potential witness ...