Davin v. The Kansas Medical

• Decision Date: 11 May 1918
• Docket Number: 21,282
• Citation: 103 Kan. 48,172 P. 1002
• Parties: FANNIE DAVIN, Appellant, v. THE KANSAS MEDICAL, MISSIONARY AND BENEVOLENT ASSOCIATION, Appellee
• Court: Kansas Supreme Court

172 P. 1002

103 Kan. 48

FANNIE DAVIN, Appellant, v. THE KANSAS MEDICAL, MISSIONARY AND BENEVOLENT ASSOCIATION, Appellee

No. 21,282

Supreme Court of Kansas

May 11, 1918

Decided January, 1918.

Appeal from Sedgwick district court, division No. 2; THORNTON W SARGENT, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

CHARITABLE HOSPITAL--Not Liable for the Negligence of Its Medical Superintendent. A charitable hospital corporation is not liable in damages for the failure of its medical superintendent to comply with a contract made by him for the care of a patient being treated in the hospital.

Joseph Brubacher, James Conly, and W. P. Campbell, all of Wichita, for the appellant.

David Smyth, and J. W. Smyth, both of Wichita, for the appellee.

OPINION

MARSHALL, J.:

The plaintiff commenced this action to recover judgment for personal injuries. Judgment was rendered in favor of the defendant, and the plaintiff appeals.

The defendant is a charitable corporation organized under the laws of this state solely for purely philanthropic and charitable purposes. It conducts a hospital, or sanitarium, at Wichita. The plaintiff was afflicted with melancholia, and was, by her husband, taken to the defendant's hospital. He stayed with her for a couple of days, when he was advised by Dr. Sutter, the defendant's medical superintendent, to go home and stay away from the plaintiff. The husband agreed so to do on condition that a nurse be placed in charge of the plaintiff at all times, and that she be not left alone. To this Dr. Sutter assented. A special nurse was placed in charge of the plaintiff, but the nurse did not remain in the room with the plaintiff at all times. The nurse slept in the hall near the door to the plaintiff's room. While the nurse was so sleeping, the plaintiff got out of her bed, passed through an open window, fell to the roof of a porch below, and injured herself. She brought this action to recover damages for the injuries sustained by her. There was no allegation in the petition and there was no evidence to prove that the defendant did not exercise reasonable care in the employment of its physicians and attendants.

The jury returned a verdict in favor of the plaintiff and answered special questions as follows:

"2. Does any person, corporation, or association receive profits or dividends from its earnings? Answer: No.

"3. If the jury answer the foregoing interrogatory in the affirmative, then state what person, corporation, or association receive profits or dividends? Answer: Not any.

"4. What, if any, negligence do you find the defendant guilty of? State fully. Answer: In not complying with special contract entered into with Mr. Davin in supplying a special nurse in constant attendance upon Fannie Davin at all times.

"5. What servant or agent of the defendant was guilty of the negligence found, if any? Answer: Miss Cox, the special nurse.

"6. What could the defendant have done that it did not do to avoid the injury to plaintiff? Answer: Should have had special nurse in room in constant attendance on Fannie Davin.

"7. Did any servant or agent of the defendant have reason to believe that the plaintiff would be likely to injure herself? Answer: Yes.

"8. If you answer the last question in the affirmative, then state what servant or agent had such reason so to believe? Answer: Dr. Sutter, the hospital doctor, and the special nurse.

"9. Did the husband or physician of the plaintiff inform any agent or servant of the defendant that she was likely to injure herself if not guarded, and if so, to whom was such information given? Answer: Yes, inasmuch as Dr. Edgerton informed Dr. Sutter of the nature of the case."

The court set aside the verdict and rendered judgment in favor of the defendant on the facts found by the jury.

The plaintiff says: "The only specification of error is the order sustaining the motion of the defendant for judgment on the special findings." Can the plaintiff recover under the facts found by the jury? In Nicholson v. Hospital Association, 97 Kan. 480, 155...