# Paintsville Hospital Co. v. Rose > Kentucky Supreme Court · January 17, 1985 · 683 S.W.2d 255 URL: https://www.frixlaw.com/law-library/cases/9678070 ## Case - **Full name:** PAINTSVILLE HOSPITAL COMPANY, Movant, v. Jake ROSE, Administrator of the Estate of Grimsey Rose, Deceased, Respondent - **Court:** Kentucky Supreme Court - **Decided:** January 17, 1985 - **Citations:** 683 S.W.2d 255; 1985 Ky. LEXIS 204 - **Precedential status:** Published - **Opinion:** Dissent by Vance - **Judges:** Stephens, Gant, Leibson, Wintersheimer, Vance, Aker, Stephenson - **Cited by:** 252 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9678070 ## How later opinions describe it (automated extraction) - applying principle of ostensible agency “to anesthesiologists, ... pathologists, radiologists, and emergency room physicians, all of whom share the common characteristic of being supplied through the hospital rather than being selected by the patient" - noting expansion of ostensible agency theory from anesthesiologists to other physicians who are not employed by the hospital but are furnished through the institutional process, such as pathologists, radiologists, and emergency room physicians - applying principle in tort context and acknowledging Restatement (Second ## Opinion text VANCE, Justice, dissenting. I fully recognize that there may be cases in which an ostensible agency may be proved and that until a prima facie case has been made that no genuine issue of fact exists a plaintiffs claim should not summarily be dismissed. There are two conditions which must be shown to exist before liability can be imposed upon the basis of ostensible agency. First, the ostensible principal must have engaged in conduct of such a nature as to cause a reasonable person to believe that an agency relationship existed, although actually there was no agency. Secondly, the person seeking to impose liability upon one who is ostensibly a principal for the tort of one who is ostensibly, but not actually, an agent must in fact believe that an agency relationship did exist and must act in reliance upon that belief. *259 Restatement (second) of Agency § 267 (1958), cited in the majority opinion, contains the following in Comment (a): “The mere fact that acts are done by one whom the injured party believes to be the defendant’s servant is not sufficient to cause the apparent master to be liable. There must be such reliance upon the manifestation as exposes the plaintiff to the negligent conduct_” [Emphasis added.] “While agency, as between the principal and agent, is a matter of their mutual consent, an agency by estoppel may be created insofar as third persons are concerned — that is, it may arise from acts and appearances which lead third persons to believe that it has been created. Agency by estoppel may be apparent only and exist because of the estoppel of the principal or agent to deny the same after the third party has relied on such appearance, so that such third party would be prejudiced if the fact were shown to be otherwise.” [Emphasis added.] 3 Am.Jur.2d Agency § 19, p. 429 (1962). Ostensible agency is agency by estoppel and is to be distinguished from implied agency. “An implied agency is an actual agency as much as if it were created by express words, and is a fact to be shown or ascertained by inferences and deductions from other facts for which the principal is responsible, while agency by estoppel should strictly be limited to those cases where the authority is not real but apparent. “Agency by estoppel can be invoked by a third person only when he knew and relied on the conduct of the principal, while such knowledge is unnecessary in cases of implied agency since in such case the agent is an actual agent.” [Emphasis added.] 2A C.J.S. Agency § 52(b), pp. 628-629 (1972). In Middleton v. Frances, 257 Ky. 42 , 77 S.W.2d 425 (1934), the Kentucky case cited in the majority opinion as recognizing the principle of ostensible agency, the precise question of reliance by the claimant therein was not discussed in the opinion, but the opinion did allude generally to the fact of reliance upon the ostensible agency as a necessary element in imposing liability upon an ostensible principal. “Has not the People’s Taxie Company by allowing Harris from and after July 20, 1933, to operate this car from its central office, to cruise about over the city with the name ‘Peoples Taxi-cab Company’ displayed upon it — though it be admitted he was doing all this for Ashley — been guilty of such want of ordinary care, and so held him out and so allowed Harris to hold himself out as to make Harris its agent as to third parties who perhaps took passage with him as a result of the appearances it allowed him to make? We think it has. Such seems to be the rule. See section 267, Restatement of the Law of Agency, where this illustration is given: ‘P, a taxicab company, purporting to be the master of the drivers of the cabs, in fact enters into an arrangement with the drivers by which the drivers operate independently. A driver negligently injures T, a passenger, and also B, a person upon the street. P is not liable to B. If it is found that T relied upon P as one furnishing safe drivers, P is subject to liability to T in an action of tort.’ That seems to be the case.” [Emphasis added.] Id., 77 S.W.2d at 426 . In this case, the deceased was found lying unconscious on the streets. He was unconscious when taken to the hospital. I believe a prima facie case was established that the deceased did not, in his condition upon admission, rely upon a belief that the emergency room physician was, in fact, an agent of the hospital. Indeed, the complaint does not even claim that there was any reliance upon an ostensible agency. The physician who originally admitted deceased to the hospital told his parents, who later came to the hospital, that the injuries suffered by their son were outside her field of specialization and recommended that they secure the services of another physi *260 cian. The deceased was admitted to the hospital under the care of another physician, and the parents paid Dr. Ikramuddin, not the hospital, for her services. The majority opinion, in my view, drastically revises the law pertaining to ostensible agency in that, without expressly saying so, it abolishes reliance upon the alleged ostensible agency as a necessary prerequisite to the imposition of liability upon the ostensible principal. A prima facie case was established here that there was no such reliance, and the summary judgment should be upheld. The majority cites Roberson v. Lampton, Ky., 516 S.W.2d 888 (1974), and Kaze v. Compton, Ky., 283 S.W.2d 204 (1955), for the proposition that summary judgment should not be granted unless it can be shown that the respondent could not possibly produce evidence at trial which would entitle him to prevail. Roberson v. Lamp-ton, supra, dealt with a summary judgment which was entered before discovery was completed and, in effect, only holds that the case was not ready for summary judgment. In my view, summary judgment is never to be substituted for a trial, but under C.R. 56, if a party can make a prima facie case that no genuine issue of fact exists, the opposing party has the duty to come forward with something to rebut the prima facie case, and upon his failure to do so, summary judgment may properly be entered. AKER and STEPHENSON, JJ., join in this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9678070. Public record. Not legal advice.