Corey v. Beck, 6476
| Decision Date | 16 October 1937 |
| Docket Number | 6476 |
| Parties | OPAL MAY COREY, Who Sues by Her Guardian ad Litem, LLOYD COREY, Appellant, v. W. W. BECK, FERN CLARK HCCLELLAN and CYNTHIA BENSON, Respondents |
| Court | Idaho Supreme Court |
HOSPITALS-LIABILITY FOR EMPLOYEE'S NEGLIGENCE-PLEADING.
1. A complaint charging negligence on part of owner of private hospital and nurses in failure to treat burns caused by hot water bottles placed against patient's feet while patient was anesthetized and on the operating table undergoing an operation, after patient had been taken from operating room was sufficient as against demurrer.
2. A hospital conducted for profit is liable for negligence of its employees in failing to treat burns, caused by hot water bottles placed against patient's feet during an operation, after patient has been taken from the operating room.
3. In action against owner of private hospital and nurses thereof where complaint alleged that burns were caused by hot water bottles placed against patient's feet by nurses who were not servants of, nor under control of, the operating surgeon but were servants of the hospital owner, owner's demurrer to complaint on ground that the nurses had become servants of the surgeon during the operation was improperly sustained.
4. Allegation that doctor in charge of operation had no control over the nurses, but that the nurses were under the exclusive control of owner of private hospital, and that the injuries were proximately caused by negligence of owner and his servants while servants were within scope of their employment, were sufficient "statements of fact" to properly plead a cause of action as against demurrer, rather than being mere "legal conclusions."
APPEAL from the District Court of the Sixth Judicial District, for Bingham County. Hon. Guy Stevens, Judge.
Appeal from judgment of dismissal of complaint, a demurrer thereto having been sustained. Reversed and remanded.
Reversed and remanded with directions. Costs to appellant, against Beck only.
Anderson, Bowen & Anderson, for Appellant.
Regularly paid nurses are presumptively employees of the hospital. (Norwood Hospital v. Brown, 219 A. 445, 122 So. 411.)
By demurrer the defendant Beck admits the truth of the allegations of the complaint. (1 Bancroft's Code Pleading, p. 294.)
A hospital is under a duty to exercise reasonable care toward a patient as his known condition may require. (30 C. J. 467.)
Merrill & Merrill, for Respondent.
Facts not well pleaded and conclusions of law are not admitted by a demurrer. (Burkhart v. Reed, 2 Idaho 503, 22 P. 1; Groshoff v. Saint Gertrudes Convent, 44 Idaho 554, 258 P. 528.
The general rule that a demurrer admits the truth of all material and relevant facts which are well pleaded does not apply to facts which appear unfounded by a record incorporated in a pleading, or by a document referred to, nor to general averments contradicted by more specific averments. (Caldwell v. Village of Mountain Home, 29 Idaho 13, 156 P. 909.)
One who is a general servant of another may be loaned or hired by his master for some special purpose to a third person and under these circumstances the special master and not the general master becomes responsible for the servant's conduct. (Burns v. Jackson, 53 Cal.App. 345, 200 P. 80; Puhlman et al. v. Excelsior Express & Standard Cab Co., 259 Pa. 393, 103 A. 218, L. R. A. 1918E, 118; Brady v. Great Western Ry. Co., 8th Circuit, 114 F. 100, 57 L. R. A. 712.)
--The allegations of appellant's amended complaint so far as material here are substantially as follows: That respondent W. W. Beck owned, operated and controlled a hospital where injured, sick and infirm persons could be treated, cured and cared for. That the respondents McClellan and Benson were nurses, agents, servants and employees of the respondent Beck in the conduct and operation of said hospital and worked therein. That appellant as a pay patient entered the defendant Beck's hospital and while appellant was anesthetized, on the operating table undergoing an operation, the respondent Beck's agents, servants and employees, respondents McClellan and Benson, negligently, and carelessly placed at the appellant's feet hot water bottles burning both appellant's heels up for a space of approximately three inches entirely through the skin, from which appellant suffered and will suffer pain and anguish as the injuries are permanent in character. That the operating doctor gave no orders for placing the hot water bottles to appellant's heels and did not know they had been placed there; that respondent was personally present and aided and assisted in the operation. That notwithstanding respondent Beck personally and through his agents, servants and employees undertook to exercise the degree of care ordinarily exercised by doctors and nurses in that vicinity, after appellant's heels were burned and she was removed to a room in the hospital the respondents knowing of the burns did not administer to them in any manner. That respondents were negligent and careless in placing the hot water bottles without covering them, in not examining the bottles after being placed at the appellant's heels to ascertain if appellant was being burned, in not administering to appellant to relieve the suffering from the burns and curing the injury, and appellant was permitted to suffer for approximately seven days after the burn. That the doctor in charge of the operation had no control over the hospital or nurses therein and that respondent nurses were under the exclusive control and direction, and subject to the direction of respondent Beck. That all of the injuries were proximately caused by the negligence and carelessness of respondents while the nurses were acting within the scope of their employment for respondent Beck in the hospital.
The trial court sustained respondent Beck's general demurrer and overruled the demurrer of respondent McClellan, the action below remaining in status quo as to her. Evidently respondent Benson was never served. This appeal is from the subsequent judgment of dismissal upon appellant's failure to plead further as against respondent Beck.
The demurrer was sustained on respondent's theory and contention that the negligence if any was the nurses', whom, though general servants of Beck, as owner of the hospital, were during the time of the operation as a matter of law loaned to and became the servants of and subject to the sole direction and control of the operating surgeon, hence no relationship of master and servant then existed between the nurses and Beck to render him liable for their negligence in putting the excessively hot water bottles at appellant's feet.
Many cases cited below [1] have considered questions bearing upon and one or two have given direct expression to the above proposition but it is unnecessary for us to decide the general point of law, because of the particular allegations of the amended complaint herein. The demurrer was improperly sustained for two reasons.
First, the amended complaint charged negligence on the part of Beck and the nurses in failure to treat the burns after appellant was taken from the operating room, and it is conceded the authorities all hold that a hospital conducted for profit, as it is alleged was the situation herein, is liable for the negligence of its employees in such circumstances. (Davis v. Potter, 51 Idaho 81, 2 P.2d 318; Hayhurst v. Boyd Hospital, 43 Idaho 661, 254 P. 528; annotation, 22 A. L. R. 341, injuries from hot-water bags at page 349; annotation, 39 A. L. R. 1431, injuries from hot-water bags at page 1434; Flower Hospital v. Hart, 178 Okla. 447, 62 P.2d 1248; Tucker Sanatorium v. Cohen, 129 Va. 576, 106 S.E. 355, 22 A. L. R. 315; Lamont v. Highsmith Hospital, 209 N.C. 839, 183 S.E. 376; Id. 206 N.C. 111, 173 So. 46; Parrish v. Clark, 107 Fla. 598, 145 So. 848; Emory University v. Shadburn, 47 Ga.App. 643, 171 S.E. 192; Birmingham Infirmary v. Coe, 206 Ala. 687, 91 So. 604; Mulliner v. Evangelischer, etc., 144 Minn. 392, 175 N.W. 699; Meridian Sanatorium v. Scruggs, 121 Miss. 330, 83 So. 532; Maxie v. Laurel General Hospital, 130 Miss. 246, 93 So. 817; Kuglich v. Fowle, 185 Wis. 124, 200 N.W. 648; Id. 176 Wis. 60, 186 N.W. 188; Duke Sanitarium v. Hearn, 159 Okla. 1, 13 P.2d 183; Timbrell v. Suburban Hospital, 4 Cal.2d 68, 36 P.2d 435, 47 P.2d 737; 30 C. J. 467, sec. 17, notes 12 and 13; 30 C. J. 467, sec. 18, notes 16 and 18.)
Nothing is considered, held or decided by the above statement as to charitable or public institutions, nor except as to nurses employees of the hospital charged.
Second, whatever may be the general rule as contended for by respondent in his theory above stated, herein there is specific allegation that at the time of the operation the nurses were not servants of or under the control of the operating surgeon but of Beck, hence the sufficiency of the pleading here considered is to be determined by these specific allegations:
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