Carraway Methodist Hosp. v. Pitts

• Decision Date: 03 January 1952
• Docket Number: 6 Div. 904
• Citation: 256 Ala. 665,57 So.2d 96
• Parties: CARRAWAY METHODIST HOSPITAL, Inc. v. PITTS.
• Court: Alabama Supreme Court

Page 96

57 So.2d 96

256 Ala. 665

CARRAWAY METHODIST HOSPITAL, Inc. v. PITTS.

6 Div. 904.

Supreme Court of Alabama.

Jan. 3, 1952.

Rehearing Denied March 6, 1952.

Lange, Simpson, Robinson & Somerville and Hugh A. Locke, all of Birmingham, for appellant.

Sheldon Fitts, Marion, Harsh & Glasser and Francis H. Hare, Birmingham, for appellee.

PER CURIAM.

This suit was instituted against Norwood Hospital, Inc., a corporation, by Hoy Pitts, father of Melba Addie Pitts, a minor, to recover damages for the death of his said minor daughter. The suit was filed under the so-called homicide statute. § 119, Title 7, Code 1940; McGough Bakeries Corp. v. Reynolds, 250 Ala. 592, 35 So.2d 332; Alabama Power Co. v. Bowers, 252 Ala. 49, 39 So.2d 402. After suit was brought, the name of defendant was changed to Carraway Methodist Hospital, Inc. The complaint was amended to meet this change. The defendant will sometimes be referred to as the hospital.

The case went to the jury on two counts. In substance, Count 1 alleges that on December 19, 1946, the defendant operated a hospital in Birmingham, Alabama, and maintained a home for nurses serving or training in the hospital, which nurses' home was located at 1609-25th Street, North, and that while plaintiff's minor daughter was upon the premises of the nurses' home and while an invitee of the defendant upon such premises, the premises or some part or some object or objects therein caught fire, as a proximate consequence of which plaintiff's minor daughter was so injured that she died. There is a further allegation that defendant negligently caused or allowed plaintiff's minor daughter to be so injured that she died. Count 2 is very similar, the difference being that it alleges the defendant negligently caused or negligently allowed the premises or some part thereof or some object or objects therein to catch fire, as a proximate consequence of which negligence plaintiff's minor daughter was so injured that she died.

The defendant pleaded in short by consent in the usual form. Its defenses were (1) that it was guilty of no negligence which proximately caused the death of plaintiff's minor daughter; (2) contributory negligence of plaintiff's minor daughter; (3) the plaintiff was precluded from recovery in this form of action by virtue of the provisions of the workmen's compensation law.

There was verdict and judgment for plaintiff in the sum of $15,000. Defendant's motion for new trial having been overruled, it has appealed to this court.

Defendant operated, in connection with its hospital, an accredited school for nurses, which Miss Pitts entered on October 7, 1946. She was assigned a room in the nurses' home operated by defendant as an integral part of its hospital, which room Miss Pitts occupied with another student nurse until December 19, 1946. Shortly after ten o'clock on the morning of December 19, 1946, while a Christmas tree was being installed and decorated on the ground floor of the nurses' home, a fire occurred, which spread rapidly and caused a considerable amount of heat and smoke. Miss Pitts was trapped in her room on the floor above. She was unconscious when removed from her room to the hospital. She died within a few hours from pulmonary edema caused by the inhalation of smoke and hot air.

Much of the evidence presented on the trial of the case bore on the question of whether Miss Pitts' death was proximately caused by the negligence of the defendant, and there was some evidence introduced under the defense of contributory negligence. There is no reason to set out the evidence as it related to these questions, as no contention is made on this appeal that the evidence was not sufficient to go to the jury or that the verdict was not amply supported by the evidence as it bore on those questions.

It is strenuously insisted by appellant that it was entitled to the affirmative charge and that the trial court erred to a reversal by refusing to give it for the reason that the evidence shows without conflict that at the time of her injury, plaintiff's minor daughter was an employee of the hospital and that the accidental injury which she received and which resulted in her death arose out of and in the course of her employment.

It seems to be conceded that if Miss Pitts was an employee of the defendant hospital, she and the hospital were both subject to the provisions of the workmen's compensation law. Hospitals are not excluded from the operation of that law and the defendant had in its employ more than the requisite number of employees. There is nothing to indicate that any action was taken by either party to overcome the presumption that the contract of employment, if there was such a contract, was made subject to the workmen's compensation law. § 273, Title 26, Code 1940, a amended.

This court has declared that within its field of operation the workmen's compensation law is the criterion of the rights and liabilities of all parties affected thereby and within the terms of that law. Such is its purpose and scope, embracing as it does the employer, employee, dependents, insurance carriers and third persons liable for injuries or deaths falling within and compensable thereunder. Harris v. Louisville & N. R. Co., 237 Ala. 366, 186 So. 771, and cases cited; Nall v. Alabama Utilities Co., 224 Ala. 33, 138 So. 411; Gentry v. Swann Chemical Co., 234 Ala. 313, 174 So. 530; Smith v. Southern Ry. Co., 237 Ala. 372, 187 So. 195; § 272, Title 26, Code 1940.

The trial court cannot be said to have committed reversible error in refusing the general affirmative charge requested by defendant on the theory that plaintiff is precluded from recovery by the provisions of the workmen's compensation law, unless it appears from the evidence without dispute that plaintiff's minor daughter was an employee of the defendant hospital at the time of the injury which resulted in her death and that the injury arose out of and in the course of her employment. In considering the propriety of the affirmative charge, we review the tendencies of the evidence most favorable to plaintiff, regardless of any view we may have as to the weight of the evidence and must allow such reasonable inferences as the jury was free to draw, not inferences which we may think the more proper.

By our statute, § 262, Title 26, Code 1940, as amended by an act approved July 10, 1940, General Acts 1939, p. 1047, employer and employee are defined as follows: '(d) The term 'employer' as used herein shall mean every person not excluded by section 263 of this title who employs another to perform a service for hire and to whom the 'employer' directly pays wages * * *. (g) The terms 'employee' and 'workman' are used interchangeably and have the same meaning throughout this chapter, and shall be construed to mean the same. (h) The terms 'wages,' and 'weekly wages,' and such expressions shall, in all cases, unless the context clearly indicates a different meaning, be construed to mean 'average weekly earnings.' Every person, not excluded by section 263 of this title in the service of another under any contract of hire, express or implied, oral or written, includes aliens, and also includes minors who are legally permitted to work under the laws of the state. Any reference herein to a workman or employee shall, where the employee is dead, include a reference to his dependents, as herein defined if the context so requires.'

The evidence as it came from the witnesses who testified in open court at the trial below is without dispute in the following respects. When Miss Pitts entered the school of nursing, she, along with the other members of her class, was advised that she would have to live in the nurses' home and comply with rules and regulations applicable to all student nurses. At the time of her death, Miss Pitts was a preclinical student and had to attend classes each day for five hours and perform nursing duty at the hospital three hours daily. In so far as these duties were concerned, she was under the direction and supervision of the supervisor of nurses, who prescribed the hours when the duties were to be performed. The supervisor of nurses also had the authority, which she exercised from time to time when the necessity arose, to call student nurses to duty in the hospital at times other than the hours prescribed by the weekly schedules.

During the day when not in class or on nursing duty, student nurses were free to leave the nurses' home for trips to town, but at night they were required to study from eight to ten o'clock and could leave the hospital at night only on certain nights and the time of their return to the nurses' home was fixed by the governing rules and regulations.

Student nurses furnished their own uniforms and books. They paid no tuition. The hospital furnished room, board and laundry service free of charge to the student nurses. The student nurses also received the sum of $8.00 a month from the hospital.

Appellee, plaintiff below, introduced in evidence answers of the hospital to interrogatories propounded to it by plaintiff. It is here contended that certain of these answers made the question as to whether Miss Pitts was an employee of the hospital a matter for the jury's determination. The pertinent questions and answers are as follows:

'Q. Was plaintiff's minor daughter being paid any wages as such employee. A. Plaintiff's daughter was given an allowance for expenses.

'Q. If you answer she was being paid wages, please state exactly what she was paid and all the facts and circumstances surrounding such payment. A. Miss Pitts was in training and was receiving her board, lodging, schooling and professional training together with a small allowance for expenses.

'Q. If plaintiff's minor daughter was being compensated in any way for her services as a student nurse while connected with the defendant hospital, please describe such relationship and such compensation in detail. A. Plaintiff's...