Broz v. Omaha Maternity & General Hospital Association

• Decision Date: 14 July 1914
• Docket Number: 17,583
• Parties: TILLIE BROZ, ADMINISTRATRIX, APPELLEE, v. OMAHA MATERNITY & GENERAL HOSPITAL ASSOCIATION, APPELLANT
• Court: Nebraska Supreme Court

148 N.W. 575

96 Neb. 648

TILLIE BROZ, ADMINISTRATRIX, APPELLEE, v. OMAHA MATERNITY & GENERAL HOSPITAL ASSOCIATION, APPELLANT

No. 17,583

Supreme Court of Nebraska

July 14, 1914

APPEAL from the district court for Douglas county: GEORGE A. DAY JUDGE. Affirmed.

AFFIRMED.

William Baird & Sons and E. M. Morsman, Jr., for appellant.

Duncan M. Vinsonhaler and W. C. Fraser, contra.

ROSE J. SEDGWICK, J., LETTON and HAMER, JJ., dissenting.

OPINION

ROSE, J.

This is an action to recover $ 40,000 for alleged negligence resulting in the death of Adolph F. Broz, a farmer who, with his wife and two children, had resided on a farm in Saline county. Plaintiff is the administratrix of his estate. The Omaha Maternity & General Hospital Association, defendant, is a corporation conducting at Omaha a hospital for private gain. Broz was a patient therein from April 18, 1910, until June 21, 1910, paying for his room and care $ 15 a week. In the petition it is alleged that Broz was knowingly admitted as a patient when suffering from a mental disorder which caused at times a delirious condition impelling him intermittently to leave his bed and otherwise to act irrationally; that while a patient of defendant he took poison, the result being fatal; that defendant was negligent in permitting him to remain for a long time unattended and unguarded in his room and in the hallways of the hospital, and in negligently leaving in an exposed and unguarded place the poison which he took; that, after defendant was apprised that he had taken poison, it negligently failed to administer proper remedies and antidotes; that the facts pleaded constitute a negligent omission of duty and a breach of defendant's implied undertaking to furnish and supply him with all the care, nursing, medical treatment and oversight necessary, suitable and proper for him in view of his known physical and mental condition. In its answer defendant denied negligence, but admitted that Broz was affected with a mental disorder when taken to the hospital; that about midnight June 19, 1910, he was found in his room dangerously ill, and nurses then on duty were soon afterward apprised that he had taken poison; that he died June 21, 1910. The jury rendered a verdict in favor of plaintiff for $ 7,000. From a judgment for that sum defendant has appealed.

The first assignment of error is directed to the admission in evidence of standard tables of expectancy of life. On this point defendant says: "As a matter of fact Broz was suffering from a mental disorder of such a nature that he could never fully recover, and his chances of a partial recovery were none too good. The probable duration of the life of a person in such a condition is very uncertain and cannot be shown by the introduction in evidence of the ordinary life tables, for those tables are applicable only to persons in good health." In support of this argument, City of Lincoln v. Smith, 28 Neb. 762, 45 N.W. 41, and Roose v. Perkins, 9 Neb. 304, 2 N.W. 715, are cited. The question now presented was not involved in either of those cases. While good health was shown, neither opinion contains the statement that mortality tables are inadmissible in absence of proof of that fact. As data or evidence, tending to show expectancy of life, mortality tables are not conclusive. City of Friend v. Ingersoll, 39 Neb. 717, 58 N.W. 281; Vicksburg & M. R. Co. v. Putnam, 118 U.S. 545, 30 L.Ed. 257, 7 S.Ct. 1; City of Joliet v. Blower, 155 Ill. 414, 40 N.E. 619; Central R. Co. v. Crosby, 74 Ga. 737; Scheffler v. Minneapolis & St. L. R. Co., 32 Minn. 518, 21 N.W. 711. They are competent evidence to aid the jury or court in determining the probable duration of life when that question is in issue, and may properly be submitted with other evidence, showing health, age, existence of disease, physical and mental condition, vocation or employment, and other pertinent facts.

As evidence, the effect of mortality tables, if any, is determinable by the triers of fact. City of Friend v. Ingersoll, 39 Neb. 717, 58 N.W. 281; City of South Omaha v. Sutliffe, 72 Neb. 746, 101 N.W. 997. Proof that the person whose expectancy of life is under consideration conforms to the standards of health and vigor adopted in compiling mortality tables is not essential to their admissibility.

Evidence of disease or of ill health or of hazardous employment may impair or destroy the probative effect of tables of expectancy of life, but it does not make them inadmissible. Arkansas M. R. Co. v. Griffith, 63 Ark. 491, 39 S.W. 550; Greer v. Louisville & N. R. Co., 94 Ky. 169, 21 S.W. 649; Birmingham M. R. Co. v. Wilmer, 97 Ala. 165, 11 So. 886; Mary Lee Coal & R. Co. v. Chambliss, 97 Ala. 171, 11 So. 897; Coates v. Burlington, C. R. & N. R. Co., 62 Iowa 486, 17 N.W. 760. In the Arkansas case cited the court said: "The question is whether we can still make the tables of service in making the calculation, notwithstanding it is shown that plaintiff's condition and health were below the average, and that, in fact, he was not an insurable risk. This is an element of uncertainty that must necessarily be found in the case of one of feeble health and not insurable, in all cases, whether we call to our aid the mortality tables or not. When we do so, however, when, by reason of enfeebled physical condition, the standard tables are not strictly applicable on that account, yet they are more or less efficient aids in arriving at an approximation of the truth, and that is the best that can be hoped for after all." This assignment of error is therefore overruled.

Another assignment of error challenges the admissibility of statements by Broz that the poison was on a table in his room, and that he took it, thinking it was his medicine. Over objections of defendant, statements of this nature were proved by Dr. Mares. There is testimony tending to show: Dr. Mares was a brother-in-law of Broz. The poisoning was discovered before midnight. About 8 o'clock the next morning Dr. Mares was notified, and promptly went to the hospital. Upon his arrival he conversed with the head nurse. He testified: "I asked the head nurse what happened, and she told me that Mr. Broz took poison, and that it was bichloride of mercury. I asked her how could she tell it was bichloride of mercury, and she told me she could tell by the symptoms; and I asked her, 'How did he get it?' She told me to go in his room and ask how and where he got it and what it was." Dr. Mares went to the room of the patient, interviewed him, and reported the conversation to the head nurse, who said: "That is what I thought." The statements of Adolph F. Broz were thus reported by Dr. Mares in his own language, as follows: "When I came in the room I said, 'Adolph, what did you do, and what did you do it for?' and he said, 'I did not do anything.' He said, 'I took four tablets off of the tray on the table.' He pointed at the table, and he said he thought it was his medicine, and I asked him what kind they were, and he said they were blue in color, and a little smaller than usual. And then he told me that he took them because lately they were changing medicine on him, and so he thought it was his medicine, and I asked him if he used to take so many, and he said, no, he only took two, and sometimes only one, and those were grayish in color and a little bit larger. And then he also told me that he drank a glass full of something that tasted oily. I asked him, 'Did it make you sick?' and he said, 'No, not right away,' but in a few minutes he started to get cramps and pains in his stomach and started to vomit."

The question is: Did the trial court err in admitting this testimony and other proof of a similar nature? It is argued that defendant is not bound by such statements; that Broz was under the care of his own physician, and that the latter's instructions were obeyed by the nurses and other employees of the hospital; that Broz, under specific directions of his physician, was allowed the freedom of his room and of the halls in the hospital; that bichloride of mercury was used in the hospital as an indispensable disinfectant, and that it was kept for that purpose in a sinkroom, where Broz found the tablets; that he took the poison with suicidal intent, there being at the time no reason to suspect that he would do so. Defendant adduced proof in support of the positions thus taken. If, however the statements of Broz were properly admitted, there is evidence of negligence on the part of defendant. Intermittent mental infirmities of the patient were pleaded in the petition and admitted in the answer. The pleadings, evidence and circumstances justify a finding that he was admitted to the hospital under an implied obligation that he should receive such reasonable care and attention for his safety as his mental and physical condition required. The physician employed by him did not relieve the hospital of responsibility for negligence on its part, if any. The patient was under the personal observation of his physician only a small portion of the time. In the latter's absence and during emergencies he was under the care of the nurses and the interne who were employees of the hospital. Within the scope of their employment their employer is legally responsible for their negligence to a patient. Wetzel v. Omaha Maternity & General Hospital Ass'n, ante, p. 636. The patient's physician did not manage nor control the hospital, and he is not liable for the negligence of hospital nurses and internes, if he had no connection with any negligent act. Harris v. Fall, 177 F. 79, 27 L. R. A. n. s. 1174, and note. In absence of the physician employed by Broz, and in absence of the latter's wife, and of his relatives and friends, while he was under the exclusive care of...