Birmingham Baptist Hospital v. Branton

• Decision Date: 14 April 1927
• Docket Number: 6 Div. 874
• Citation: 216 Ala. 326,113 So. 79
• Parties: BIRMINGHAM BAPTIST HOSPITAL v. BRANTON.
• Court: Alabama Supreme Court

113 So. 79

216 Ala. 326

BIRMINGHAM BAPTIST HOSPITAL v. BRANTON.

6 Div. 874

Supreme Court of Alabama

April 14, 1927

Rehearing Denied June 2, 1927

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Action for damages by Carrie Branton against the Birmingham Baptist Hospital. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326 Affirmed.

Coleman Coleman, Spain & Stewart, of Birmingham, for appellant.

Altman Taylor & Koenig, of Birmingham, for appellee.

BROWN J.

Count X of the complaint, on which the case was submitted to the jury, in substance, avers that the defendant for reward undertook and engaged to nurse and care for plaintiff, during her accouchement, and that defendant's servant or agent, on being informed that plaintiff was about to give birth to the child and being requested to call the physician, while acting within the scope of her employment, negligently failed and refused to call the physician, and as a proximate consequence plaintiff was denied the presence, aid, and assistance of such physician during the birth of her child, to her damage.

The only objection to this count, urged in argument, is that it "shows on its face that the negligence complained of was about matters calling for professional skill and knowledge, and nowhere is it averred in said count that appellant failed to exercise due and reasonable care in the selection and retention of its servants or agents," who are alleged to be guilty of negligence. It is certain that no professional skill or knowledge was required to enable the servant or agent in charge of the case to call the physician, on being requested to do so by the patient, and the question of whether the servant or agent was guilty of negligence in failing or refusing to do so depended upon the circumstances to be established by proof.

The averments of this count bring the case within the rule of responsibility declared in Tucker v. Mobile Infirmary Association, 191 Ala. 572, 68 So. 4, L.R.A.1915D, 1167, and reaffirmed in Sup. Lodge L.O. of M. v. Kenny, 198 Ala. 332, 73 So. 519, L.R.A.1917C, 469.

The defendant's plea 3 avers, in substance, that defendant's institution was operated exclusively for charity, that due care was exercised by it in the selection of its servants, and that the duty the breach of which is complained of was one that called for peculiar skill and knowledge.

Pleas 4 and 5, in substance, aver the same as plea 3, with the additional averments that plaintiff did not pay or offer to pay, nor was she charged by the defendant, reasonable compensation for the services rendered by the defendant; that the charge made was a mere nominal sum wholly inadequate to the value of the services rendered.

Plea 6 avers that the duty the breach of which is complained of was one requiring "peculiar and special skill, knowledge and learning on the part of the nurses and employés of defendant," and that defendant exercised reasonable diligence and care in the employment and retention of its said servants.

Pleas 3 and 6, in legal effect, confess the averments that the defendant, for a reasonable compensation, undertook to nurse and care for the patient without avoiding the legal effect of these counts, and asserts that the duty of calling the physician when requested by the patient was a duty requiring special skill and knowledge. This statement of the legal effect of those pleas is sufficient to show that the demurrer was properly sustained. 4 Myf.Dig. 469, § 604, Id. p. 470, § 617; Tucker v. Mobile Infirmary Association, supra.

If the plaintiff was a charity patient and the defendant did not, for a reasonable reward, undertake and engage to nurse her during the period of her confinement, as averred in the complaint, this was admissible under the general issue, and the demurrer was sustained to pleas 4 and 5 without error. Bibby v. Thomas, 131 Ala. 350, 31 So. 432; Postal Tel. Co. v. Jones, 133 Ala. 217, 32 So. 500. The matters set up in defendant's special pleas 8, 9 and 10, were also provable under the general issue, and for this reason the demurrer thereto was properly sustained.

The evidence is without dispute that the plaintiff was received and registered as a patient in the defendant hospital, and in the absence of plaintiff's physician she was in the charge and care of some one or more of the defendant's nurses, whose duty it was to take her temperature and observe her condition, and that the defendant made a charge for the hospital service so rendered.

The great weight of the evidence shows that the plaintiff had been in labor for about 12 hours before she was delivered, and the defendant's evidence shows that the child's head had passed out through the birth canal before the hospital physician was called to her, while that of the plaintiff was that the child was born before the hospital physician was called. The undisputed evidence shows that plaintiff's physician did not arrive until after the birth of the child, but was there during the delivery of the afterbirth.

The evidence was in sharp conflict as to whether the plaintiff informed the nurse in charge 35 minutes before the child was born that the event was about to happen, accompanied with a request that the doctor be called, followed by the refusal of the nurse to do so, but it tended to show that plaintiff's doctor arrived in 15 or 20 minutes after he was called. In these circumstances it was for the jury to say whether or not the nurse was guilty of negligence and whether or not such negligence proximately resulted in...