Birmingham Baptist Hospital v. Branton

• Decision Date: 01 November 1928
• Docket Number: 6 Div. 946
• Citation: 218 Ala. 464,118 So. 741
• Parties: BIRMINGHAM BAPTIST HOSPITAL v. BRANTON.
• Court: Alabama Supreme Court

118 So. 741

218 Ala. 464

BIRMINGHAM BAPTIST HOSPITAL v. BRANTON.

6 Div. 946

Supreme Court of Alabama

November 1, 1928

Rehearing Denied Dec. 6, 1928

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action for wrongful death by Joseph C. Branton against the Birmingham Baptist Hospital. From a judgment for plaintiff defendant appeals. Affirmed.

Amount of father's hospital bill held competent in action against hospital for death of newly born child.

Count H is as follows:

"Plaintiff claims of the Defendant the sum of Five Hundred Thousand Dollars ($500,000.00) as damages, for the death of his minor son, an unnamed baby. And Plaintiff avers that on to-wit: the 23rd day of April, 1925, the Defendant was engaged in the business of conducting a hospital for the treatment of patients requiring operations and other medical treatment, and for a reasonable compensation the Defendant undertook, promised and agreed to properly nurse and care for Plaintiff's wife who was in Defendant's said hospital on said date and occasion for the purpose of delivering or giving birth to Plaintiff's said minor son, who was then and there in process of being delivered or born, and to properly assist in the delivery or birth of said minor son and to properly care for and nurse the said minor son of the Plaintiff. And Plaintiff avers that while his said wife was so in said hospital of the Defendant for the purposes aforesaid, the Defendant's servants, agents or employees who were then and there in charge and control of Plaintiff's said wife, and who were then and there acting within the line and scope of their authority as such servants, agents or employees of the Defendant, so negligently conducted themselves in or about the birth or delivery of said minor son of the Plaintiff, that as a proximate consequence of said negligence, Plaintiff's said minor son died, all to Plaintiff's damage in the sum aforesaid."

And count I is as follows:

"For this Count of his Complaint the Plaintiff adopts all the words and figures of Count 'H' of his Complaint as last amended, down to and including the words 'so negligently conducted themselves,' where said words first appear together in said Count 'H,' and adds thereto for this Count of his Complaint the following:

"In or about nursing Plaintiff's said minor son that as a proximate consequence of said negligence Plaintiff's said minor son died, all to Plaintiff's damage in the sum aforesaid."

The following are grounds of demurrer to the foregoing counts of the complaint:

2. Complaint does not state a cause of action.

4. For that it does not appear with sufficient certainty what duty, if any, it may have owed to the plaintiff.

5. For that it does not appear with sufficient certainty wherein defendant violated any duty it may have owed to the plaintiff.

6. For that it does not sufficiently appear that the defendant owed duty to the plaintiff which it negligently failed to perform.

8. Said count sets up the facts alleged to constitute negligence; and such facts do not, as a matter of law, constitute negligence.

V. Said count does not allege nor show that the death of said minor was caused by improper nursing.

L. Said count alleges wantonness in the alternative predicated on acts about "the birth or delivery or nursing of plaintiff's said minor son" and said count fails to allege facts showing a duty on the part of defendant in relation to each of these said things.

U. Said count does not allege nor show that defendant agreed to furnish medical care and attention.

S. Said count does not allege nor state how long after delivery plaintiff's said minor child died.

9. For that there does not appear sufficient causal connection between defendant's said breach of duty and plaintiff's injuries and damages.

F. Said count does not allege nor show when said child died.

T. Said count does not allege nor show that from the facts known or apparent to defendant the probable or natural results couldn't have been known or anticipated.

P. Said count does not allege nor show what things defendant was to do in and about assisting in the delivery or birth of said minor.

16. For that the averments of said count are mere conclusions of the pleader in that it is not averred wherein the defendant was negligent.

Charges W and X, refused to defendant, are as follows: W. "I charge you, gentlemen, that if you believe from the evidence in this case that the child died while being delivered, then, gentlemen, you cannot find a verdict for plaintiff."

X. "I charge you, gentlemen, that under the evidence in this case there cannot be a verdict for plaintiff for negligence if any in the delivery of the baby."

Defendant's objection to the following remarks of counsel for plaintiff in opening statement to the jury, was overruled:

"We expect the evidence to show you that Mrs. Wood told Mrs. Branton, in a laughing and sneering way, that she had a lot of suffering to do."

Over objection of defendant, plaintiff was permitted to show that Mrs. Branton's hospital bill was "twenty-six dollars and something."

Harris Burns and Coleman, Coleman, Spain & Stewart, all of Birmingham, for appellant.

Altman, Taylor & Koenig, of Birmingham, for appellee.

THOMAS J.

The action was brought under the homicide statute by the father for the death of his minor son. Plaintiff's cause is stated in two counts. All other counts were withdrawn. The gist of the cause of action is contained in count H, as follows:

"Defendants so negligently conducted themselves in or about the birth or delivery of said minor son of plaintiff, that as a proximate consequence of said negligence, plaintiff's said minor son died."

Count I reads:

"Defendants so negligently conducted themselves in or about nursing plaintiff's said minor son that as a proximate consequence of said negligence, plaintiff's said minor son died."

Demurrer being overruled to said counts, the defendant pleaded the general issue in short by consent, with leave to give in evidence any matter which, if well pleaded, would constitute a legal defense and with leave to plaintiff to give evidence to prove any legal reply thereto. The trial resulted in judgment for plaintiff.

The general duties of a hospital to patients are discussed in Tucker v. Mobile Inf. Ass'n, 191 Ala. 572, 68 So. 4, L.R.A.1915D, 1167; Birmingham Baptist Hospital v. Branton, 216 Ala. 326, 113 So. 79, and need not be repeated.

This court has established a general line of demarcation between the civil rights of the mother and child to be born. It is concurrent with separate existence of the mother and child by the birth; and parental injury before the birth is no basis for action in damages by the child or its personal representative. The mother of an unborn child may recover damages to her and it, in ventre sa mere, "if such injury and damage is not too remote." Stanford v. St. Louis-San Francisco Ry. Co., 214 Ala. 611, 108 So. 566; Dietrich v. Northampton, 138 Mass. 14, 52 Am.Rep. 242; Allaire v. St. Luke's Hospital, 184 Ill. 359, 56 N.E. 638, 48 L.R.A. 225, 75 Am.St.Rep. 176. The demurrers to counts H and I were properly overruled. And the rights of this mother in and about childbirth were considered in Birmingham Baptist Hospital v. Branton, 216 Ala. 326, 113 So. 79.

The mother and wife testified of the fact as to the birth; that she told the husband to get something to eat, and before he left the latter requested the nurse to remain with the wife about to be confined, and that she should not leave the room in his absence, to which request the nurse acquiesced; that said nurse had examined witness previous to the husband's departure; thereafter, and before the nurse left the room, witness "asked her to call a doctor, and she laughed and said" that witness "would be suffering more" before she "would need a doctor"; that said nurse was the last one witness "saw until the baby...