Clough v. Worsham

• Decision Date: 08 April 1903
• Citation: 74 S.W. 350
• Parties: CLOUGH et al. v. WORSHAM et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

74 S.W. 350

CLOUGH et al. v. WORSHAM et al.^*

Court of Civil Appeals of Texas.

April 8, 1903.

Appeal from District Court, Travis County; R. L. Penn, Judge.

Action by Ethel Clough and others against B. M. Worsham and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

Edwin H. Yeiser and J. Bauldin Rector, for appellants. C. K. Bell, Atty. Gen., and Fiset & Miller, for appellees.

STREETMAN, J.

Appellants Joe Clough and wife and their daughter Ethel Clough, a minor, suing by her father as next friend, brought this suit against B. M. Worsham, individually and as medical superintendent of the State Lunatic Asylum at Austin, Tex., and the sureties upon his official bond, and against David Harrell and others, as individuals and as members of the board of managers of said asylum, to recover damages on account of personal injuries sustained by said Ethel Clough. It was alleged that said superintendent and board of managers had arranged to erect certain buildings on said asylum grounds, and had contracted with other parties for all of the work necessary upon said buildings, except the hauling of sand, and that they determined to use for the purpose of hauling such sand from the bottoms of the Colorado river, and through the city of Austin, certain of the insane inmates of said asylum; that all of the inmates of said asylum were incompetent for said work, and that it was the legal duty of said defendants to restrain all of said persons within said asylum, or upon the grounds thereof; that in violation of this duty the defendants permitted certain of said insane inmates, including one John Guinn, to go off of said grounds, and to drive a two-horse wagon and team through the streets of the city of Austin; that he, in company with four other of said insane persons, each driving a wagon under the direction of an attendant of said asylum, were proceeding, through the streets of the city of Austin to the Colorado river, when the other four persons became separated from said John Guinn, and, in attempting to turn a corner and overtake the others, he drove his team recklessly upon the sidewalk, where said Ethel Clough was walking, and ran against her, and inflicted upon her serious bodily injuries. It was further alleged that, in undertaking to perform this work in the manner alleged, the defendants were acting without the scope of their official duties, and that they thereby undertook to do the work of contractors, thereby assuming the duties and responsibilities of such to the public. The court sustained exceptions of the sureties upon the official bond of B. M. Worsham, and dismissed them from the case. Exceptions were also sustained to these portions of the petition which alleged that it was the legal duty of the defendants to confine and restrain said John Guinn and said other insane persons within the asylum, or the grounds thereof.

The following facts were proved: "It was admitted that all of the defendants named in plaintiffs' second amended original petition were appointed or elected and duly qualified as officers of the lunatic asylum at Austin, Texas, as alleged in said petition, and were such officers on and prior to February 28, 1900; that John Guinn was convicted of lunacy by the county court of Leon county, Texas, on or about the 17th day of September, 1895, and was committed to the asylum at Austin, Texas; and that he was the person driving and in charge of the wagon and team which plaintiffs alleged caused the injuries to Ethel Clough, on account of which this suit is brought. Plaintiffs then offered Dr. Worsham, who testified as follows: `I am the superintendent of the State Insane Asylum at Austin. I was not connected with the institution when John Guinn was admitted, and do not know what his mental condition was at that time. I do not consider him sane at the present time, in the true sense of the word, but he has long since recovered from the acute attack of insanity that he had at the beginning of his trouble, but was left with a mind defective to the extent that he has not been considered competent to manage his own affairs and earn a living. He was sent back to the county he was admitted from, some four years back, on a furlough, for the purpose of testing his ability to earn a living but he had to be returned. I think this was due to the fact that he had no one to render assistance in any way. Some time prior to February 28, 1900, the legislature made an appropriation for the construction of some buildings at the asylum, and myself and the board had the letting of the contracts. On letting the contract, with plans and specifications, we omitted the furnishing of sand on the part of the contractors. At a board meeting we discussed and formulated the plan of hauling sand from the bottoms of the Colorado river to the asylum, and using such of the inmates as would, in the judgment of the physicians in charge of the wards, be competent and suitable to do such work. All of the inmates are confined to the asylum, and were on February 28, 1900, on account of being insane. We use the inmates to do a great deal of the work about the asylum, and to make a good many articles, such as beds, tables, etc., and find them skillful and good workmen.' Cross-examination by defendants: `In working the inmates of the asylum, the plan is for the manager or storekeeper to make requisition for such workmen as he wants for any particular piece of work upon the physicians in charge of the particular wards, and this physician then ascertains which of the inmates, if any of them, is in fit mental condition and competent to discharge that work, and each day he informs the manager or storekeeper what men can be employed at work outside of the wards. Dr. Ross was the physician in charge of the ward in which was John Guinn, and, under the arrangement we had, before John Guinn would be allowed to go out of the ward to do work, Dr. Ross would have to grant permission. Neither the board nor myself had anything to do with determining whether or not John Guinn or any of the other inmates should be taken out of the ward and put to work by the manager or storekeeper, and none of us knew that Guinn was employed on the day that Ethel Clough was injured by the wagon and team that Guinn was driving. In pursuance of the plan that we had adopted to haul sand from the river, Dr. Ross was instructed by me to allow the manager or storekeeper to take out such of the lunatics as Dr. Ross, in his judgment, thought were in suitable mental condition to do the work, and it was under this arrangement that the teams went out to haul sand on or about February 28, 1900. The inmates, however, were not allowed to do this work, except under the control and charge of one James Patton, who always went with them, and was with them on the day in question. Sometimes, instead of one, two, attendants would go...