In our opinion the Reese case is more nearly applicable and controlling of the case at bar than either the case of Railroad v. Northington, supra, or Elrod v. Town of Franklin, supra. See also Stewart v. Crook Sanatorium, 17 Tenn. App. 589, 69 S.W.2d 259. T.C.A. Section 20-607 provides as follows:

Section 20-607, T.C.A., which is a survival or wrongful death statute, only applies where death resulted from acts of the defendant out of which the suit is brought, and where no action was instituted before the death the cause of action for pain and suffering did not survive upon the death of the victim. Stewart v. Crook Sanatorium, 17 Tenn. App. 589, 69 S.W.2d 259 (certiorari denied). The Arkansas courts in Billingsley v. St. Louis, etc., 84 Ark. 617, 107 S.W. 173, 120 Am.St.Rep. 95, held under a similar statute that the meaning of this statute was that it would only survive where there were bodily injuries or damages of a physical nature to him and no other.

The hospital contends that since Dr. Loftis was manning the emergency room, not however as a paid employee but as a staff physician whose duty was to serve in the emergency room on a rotation basis with other staff physicians, he was acting as an independent contractor. The hospital relies heavily on Stewart v. Crook Sanatorium, 17 Tenn. App. 589, 69 S.W.2d 259 (1933), for its position and argues the case establishes a requirement that a hospital must have the right to control the physician before the physician can be considered the hospital's agent. Defendant asserts Dr. Loftis was not the hospital's agent because the hospital had no right to control the medical decisions and techniques performed by the doctor.

At the time of this cause, no cause of action for personal injuries survived the death of the injured person. Stewart v. Crook Sanitorium, 17 Tenn. App. 589, 69 S.W.2d 259 (1933). The Supreme Court found no error in the charge and stated:

Assignment of error No. I insists that the Trial Judge was in error in granting the motion for a directed verdict and in finding that the negligence of Dr. Russell was not the proximate cause of the death of David Watkins. The substance of Dr. Stern's testimony was that if David Watkins had been hospitalized on the morning of May 18, it possibly could have improved his chances of survival but very probably would not have. The small possibility of survival admitted by Dr. Stern precludes a finding by the jury that Dr. Russell's negligence was a proximate cause of death. See Crowe v. Provost (1963), 52 Tenn. App. 397, 374 S.W.2d 645; Stewart v. Crook Sanatorium (1933), 17 Tenn. App. 589, 69 S.W.2d 259; Pulaski Highway Express, Inc. v. Terminal Transport Co., Inc. (1973 Tenn. App.M.S.) 493 S.W.2d 103. Assignment of error No. I is respectfully overruled. Assignment of error No. II is that His Honor the Trial Judge erred in applying a different rule of law insofar as the Plaintiff's burden of proof is concerned because the Defendant was a professional man.

No error has been made to appear in these respects. See: Barfield v. South Highland Infirmary, 191 Ala. 553, 68 So. 30; Mayers v. Litow, 154 Cal.App.2d 413, 316 P.2d 351; Black v. Fischer, 30 Ga. App. 109, 117 S.E. 103; Stacy v. Williams, 253 Ky. 353, 69 S.W.2d 697; Carter v. Harlan Hospital, 278 Ky. 84, 128 S.W.2d 174; Johnson v. City Hospital Co., 196 N.C. 610, 146 S.E. 573; Penland v. French Broad Hospital, Inc., 199 N.C. 314, 154 S.E. 406; Gosnell v. Southern Ry. Co., 202 N.C. 234; 162 S.E. 569; Stewart v. Crook Sanatorium, 17 Tenn. App. 589, 69 S.W.2d 259; Kuglich v. Fowle, 185 Wis. 124, 200 N.W. 648. Appellant attempted to urge active negligence on the part of the hospital, but failed to preserve these points on appeal. See: Vaughn v. Smith, Fla. 1957, 96 So.2d 143; Williams v. Williams, Fla.App. 1965, 172 So.2d 488; 2 Fla.Jur., Appeals, § 117, p. 458, n. 10.

The plaintiff's evidence must exclude all other reasonable hypotheses of another and different sole proximate cause. Lippold v. Kidd, 126 Or. 160, 269 P. 210, 59 A. L. R. 875; Butler v. Rule, 33 Ariz. 460, 265 P. 757; Ramberg v. Morgan (Iowa) 218 N.W. 492; Pettigrew v. Lewis, 46 Kan. 78, 26 P. 458; Elam's Adm'r v. Botkin, 227 Ky. 517, 13 S.W.2d 507; Wright v. Clement, 287 Mass. 175, 190 N.E. 11; Nevinger v. Haun, 197 Mo. App. 416, 196 S.W. 39; Yaggle v. Allen et al., 24 A.D. 594, 48 N.Y.S. 827; Searer v. Lower, (Ohio) 158 N.E. 199; Stewart v. Crook Sanatorium, 17 Tenn. App. 589, 69 S.W.2d 259; Matuschka v. Murphy, 173 Wis. 484, 180 N.W. 821; Urrutia v. Patino (Tex. Civ. App.) 297 S.W. 512; Id. (Tex.