Burnham v. Stillings

• Decision Date: 02 May 1911
• Citation: 76 N.H. 122,79 A. 987
• Parties: BURNHAM v. STILLINGS et al.
• Court: New Hampshire Supreme Court

79 A. 987

76 N.H. 122

BURNHAM

v. STILLINGS et al.

Supreme Court of New Hampshire. Merrimack.

May 2, 1911.

Transferred from Superior Court, Merrimack County; Chamberlin, Judge.

Action by Fred W. Burnham against Ferdinand A. Stillings and another for personal injuries alleged to have been caused by defendants' negligence. There was a verdict for plaintiff, and the ease was transferred on defendants' exceptions to the denial of motions for nonsuit and the direction of a verdict, and to the argument of plaintiff's counsel. New trial granted.

The plaintiff fell from a tree, injured his knee, broke his thigh bone, and was received into the public ward of the Margaret Pillsbury Hospital at a time when the defendants had charge of all patients in that ward.

Martin & Howe, for plaintiff.

Niles & Upton, James W. Remick, and Leach, Stevens & Couch, for defendants.

PARSON'S. C. J. There is no claim that the declaration did not state a cause of action, or that there was error in the instructions to the jury. The defendants took no exceptions to the evidence. The only questions open here are those presented by the exceptions to the denial of the motions for a nonsuit and verdict and to the argument of counsel.

Upon the first question the only inquiry is whether the defendants are legally at fault for any injury the plaintiff has suffered for which he is not himself to blame as matter of law.

So far as the plaintiff employed any one to treat him, he employed the hospital without advice or suggestion from the defendants. So far as the defendants were employed by any one, they were employed by the hospital. As there was no contract between the plaintiff and the defendants, they owed him no duty imposed on them because of, or in any way springing from, the contract of employment. They owed him however, the duty in the course of their employment not to do anything they either knew or ought to have known would injure him. Having with his assent undertaken to treat the plaintiff, the defendants were bound to exercise care in what they did, and are liable if their failure to exercise ordinary care injured him. "The confidence induced by undertaking any service for another is a sufficient legal consideration to create a duty in the performance of it." Hammond v. Hussey, 51 N. H. 40. 50, 12 Am. Rep. 41; Edwards v. Lamb, 69 N. IT. 599, 45 Atl. 480, 50 L. R. A. 160; Pittsfield, etc., Co. v. Shoe Co., 71 N. H. 522, 534. 53 Atl. 807, 60 L. R. A. 116; Burrili v. Alexander, 75 N. H. 554. 78 Atl. 618. The terms upon which the plaintiff received the services of the hospital do not appear. The liability of the hospital is not involved.

If the defendants received no compensation whatever, that fact, while material upon the question of the care required of them, would not excuse them for their failure to exercise such care as the circumstances demanded. Edwards v. Lamb, 69 N. H. 599, 45 Atl. 480, 50 L. R. A. 160; Hammond v. Hussey, 51 N. IT. 40, 50, 12 Am. Rep. 41.

The plaintiff was treated for a fracture of the left femur. The fracture was reduced by the defendants, who at that time and for 30 days thereafter constituted the surgical staff of the hospital, and attended the plaintiff during the continuance of their term of service. The plaintiff now complains that the thigh bone is misshapen and shortened, and that he has largely lost the use of the knee joint. Upon the question whether this result is due in any part to want of care of the defendants in reducing and treating the fracture the evidence is conflicting. There was delay in the union of the broken fragments. The defendants' evidence was that the bone was properly set and cared for and the parts in proper apposition when they gave up the case, although union had not then taken place. They ascribed the delay in union to a constitutional defect in the plaintiff's system, and the present condition to a change in the position of the parts of the bone after the plaintiff was discharged from the hospital, due to the same cause. The plaintiff claimed that the delay in union was caused by failure to properly reduce the fracture, and offered evidence that the present condition could not have been caused as the defendants claimed, but must have been due to the fact that the parts were not in proper position when union took place. Whether there was a change after the defendants gave up the case, and whether the lack of apposition of the parts, if it existed, could have been discovered by ordinary care, was for the jury. There is no occasion to discuss minor differences in the testimony as to the details of the treatment, the character of the splints and extension, and the attachment of the latter. It is sufficient to say that if the plaintiff's account of what was done is believed and the defendants' disregarded, and full credit given to the theories of his witnesses, the conclusion that the plaintiff was Injured to some extent through the defendants' want of care is not so clearly unreasonable that this court can say as matter of law that the fact cannot be found in his favor.

With the question which set of witnesses are entitled to belief this court cannot interfere. Nor does the record present the question whether the plaintiff has been permitted to recover for injuries not caused by the defendants' fault.

The defendants claim to have taken an exception which they urge presents the general question of a mistrial. This was in discussion over a question asked by the defendants of one of their witnesses as to the relation between the physicians and the hospital, in the course of which the court said: "But the trouble I had in mind particularly was the question of their relation to the hospital, as to whether they were acting as Good Samaritans, as you suggested, gratuitously or for pay. I do not see that that affects the legal status." To this counsel responded: "Of course, we must submit to your honor's ruling. If your honor will kindly note an exception." Further discussion ensuing, the defendants' counsel conceded the correctness of the court's position as further explained and stated that he could not take any exception. The question was asked and answered.

If this discussion and the suggestion of an exception can be regarded as a ruling, subject to exception, that the gratuitous character of the defendants' services could not be shown, the defendants can take no advantage therefrom because subsequently they were permitted to show, subject to the plaintiff's exception, that the hospital was a charitable institution, and that the services of the physicians and surgeons to ward cases were rendered without compensation; and, furthermore, the defendants in putting in the evidence distinctly disclaimed any claim of exemption from liability for their personal negligence on that account. The argument apparently goes upon the ground that the case was argued and presented to the jury as if it were against the hospital.

If the defendants did not own or manage the hospital, or did not bring the plaintiff there or advise his coming, they are not chargeable for default in the hospital equipment or management; i. e., because of the delay in setting the fracture due to the want of proper splints, the absence of a fracture bed, and the failure to use ether or an X-ray machine, if the hospital did not provide them. They are not responsible for the breaking of the bed unless there was evidence that they knew or ought to have known its condition was such that it was likely to break down as it did. They are not responsible for the use of the facilities furnished by the hospital unless in the exercise of ordinary care they should have refused to employ in such a case such as the hospital furnished and by like care they could have procured more suitable appliances. They, of course, also were not responsible for any default of other employés of the hospital in the management of the ease before or after they ceased to have charge of it or of each other. If they were charged on any of these grounds, the verdict was wrongly found against them. There is nothing, however, in the record as presented to this court which raises these questions. The exception to the refusal to order a verdict or nonsuit presents only the question whether on the evidence any verdict can be found for the plaintiff. Whether the plaintiff's failure to inform the physicians of the bunch he claimed to have discovered after the fall of the bed was a part of the cause of all the injury of which he complains, so as to preclude him from recovering at all, was a question of fact, as well as the existence of the bunch itself. The jury may have found that the plaintiff and his nonprofessional witnesses were mistaken in their diagnosis, and still found the fact of delayed union due to failure to properly reduce the fracture.

There was evidence that the plaintiff has not experienced as complete a recovery as could be expected under ordinary circumstances if treated with ordinary care and skill. A part of the injury complained of (the stiffness of the knee joint) is ascribable to the length of time the delay in union required the application of a weight to keep the leg extended, as well as to the manner in which the traction was attached to the leg. which the plaintiff claimed was unskillful and improper. The cause of the delay in the union of the fragments was therefore a material issue in the case. In proof of the existence of the constitutional taint to which the defendants ascribed the plaintiff's poor recovery, they offered evidence that shortly after the administration of iodide of potassium (KI), a specific remedy for syphilis (the taint suspected), union of the bone began, or, in the language of the physicians, callus was thrown out. Hence, as the ease turned, it became a vital question whether the improvement shown after the administration of that drug indicated the presence of syphilis, hereditary or acquired; or, in other...