Davis v. Rodman

• Decision Date: 14 February 1921
• Docket Number: 166
• Citation: 227 S.W. 612,147 Ark. 385
• Parties: DAVIS v. RODMAN
• Court: Arkansas Supreme Court

227 S.W. 612

147 Ark. 385

DAVIS v. RODMAN

No. 166

Supreme Court of Arkansas

February 14, 1921

Appeal from Independence Circuit Court; D. H. Coleman, Judge affirmed.

Judgment affirmed.

J. R Alexander and W. K. Ruddell, for appellants.

1. The court erred in sustaining the demurrer and dismissing the complaint, as defendants were guilty of actionable negligence. It was the duty of defendants to protect plaintiffs from injury. 29 Cyc. 419.

2. The demurrer admits every allegation in the complaint to be true. 90 Ark. 158; 102 Id. 380; 104 Id. 466; 94 Id. 505; 94 Id. 453.

3. Defendants failed to take the precautions required by the board of health and are liable. Rules and Regulations State Board of Health, January 1, 1918, p. 16, § 92. They negligently failed to isolate the cases of typhoid fever or securely screen against flies. Id., p. 16, § 89. The violation of a law made for the protection of persons against infection by the negligence of defendants make them liable. 15 L. R. A. (N. S.) 784-8. Assumption of risk was not available as a defense. 15 L. R. A. (N. S.) 784; 53 Ark. 201; 80 Id. 528; L. R. A. 1015 E 500 and note, p. 502.

4. Failure to vaccinate was negligence. 30 Cyc. 1576; 21 R. C L. 385; 81 Am. Dec. 593.

5. Defendants liable because they failed to instruct plaintiffs. Rules and Regulations State Board of Health, January 1, 1918, p. 9, § 32 (b); 30 Cyc. 1577; 21 R. C. L. 389; 63 A. L. R. 655-61; 7 L. R. A. 566.

6. Plaintiffs had a right to rely on defendants' instructions. 30 Cyc. 1579; 21 R. C. L. 402; 5 A. L. R. 922, 925; 18 L. R. A. 627-31.

7. It was negligence to allow typhoid fever patients to go to the house of plaintiffs without warning. Rules and Regulations, supra, p. 16, § 92; 19 Am. Dec. 164-6; 7 L. R. A. (N. S.) 496-9; 30 Cyc. 1577. See, also, 54 Am. Dec. 547; 5 A. L. R. 922; 93 Am. St. Rep. 834-8. Typhoid fever is highly contagious. Prac. of Med. (5 ed.) pp. 1, 26. It was actionable negligence. 58 Ark. 401; 57 Id. 402; 122 Id. 570. It is the duty of doctors to guard against infection of diseases, and if they fail they are liable. 21 R. C. L. 389; 12 L. R. A. (N. S.) 752; cases supra; 7 L. R. A. (N. S.) 496-9.

J. J & John B. McCaleb and Samuel C. Knight, for appellees.

1. We agree with appellants' contention as to actionable negligence and their definitions, but with this qualification, that there must have been a failure on part of defendants to perform some duty imposed upon them which failure was the proximate cause of the injury complained of. 22 R. C. L., p. 110. None of the acts or failures here alleged, which occurred after appellees were called to treat the patients, was the proximate cause of the contagion. The question of vaccination was not an issue in the case, for there was allegation in the complaint that vaccination was customary and the usual mode of avoiding or preventing typhoid fever. Before an attending physician is justified in vaccinating a person, that person's consent is necessary and no such consent or even willingness is alleged. The allegation of failure to vaccinate does not state a cause of action and could not have been properly submitted to a jury. The more modern medical authorities hold that there is a serious drawback to vaccination in typhoid fever cases. Forcheimer's Practice of Medicine; Sajou's Enc. of Medicine. Appellees had a perfect right to choose their course of treatment, whichever they preferred. 21 R. C. L. 383.

2. Failure to notify the county health officer was not actionable negligence. 21 L. R. A. (N. S.) 115.

3. Allowing Lawson Davis to be moved to the residence of appellants. The contention of appellants is without merit, and the cases cited are not in point. 19 Am. Dec. 164-6; 7 L. R. A. (N. S.) 496-9.

4. Failure to instruct plaintiffs as to the treatment and prevention of typhoid fever is not negligence. Act 96, Acts 1913, § 6; Ib., § 29, Acts 1911. Courts and parties must take notice of the rules, acts and regulations of the duly constituted health boards, commissions, etc. 130 Ark. 453; 26 Id. 260; 90 Id. 343.

5. As to the excreta and other bodily secretions, the contentions of appellants are without merit. The rules and regulations pleaded by appellants give ample information for the care and disposition of such. 130 Ark. 453; 26 Id. 260; 90 Id. 343.

The complaint does not state a cause of action and the court properly sustained the demurrer.

OPINION

WOOD, J.

This action was brought by appellants against the appellees to recover damages. The appellants alleged in substance that the appellees were regularly licensed and practicing physicians associated together as partners and doing a general practice of medicine at Newark and vicinity in Independence County, Arkansas; that appellants were man and wife, having a family of six minor children, and two adult married sons, who lived in their own homes apart from the appellants; that one of these sons, Curtis Davis, on June 15, 1919, was stricken with typhoid fever; that their son Lawson nursed him and was also, on July 15, 1919, stricken with typhoid fever; that the appellees were the attending physicians, and as such they negligently and wilfully failed to notify the county health officer that typhoid fever was at the residence of Curtis and Lawson Davis; that they failed to post notices in front and at the rear of the residences of Curtis and Lawson Davis and failed to instruct the patients and their attendants, appellants, and other nurses in all the necessary sanitary measures for them to observe in order to prevent the spread of the disease; that they failed to vaccinate the appellants, and other nurses, attendants, and all other persons who had been exposed to the disease; that they failed to isolate the patients in a room to themselves and to screen the room from flies; that they failed to have buried or disinfected the secretions and excretions from the body of the patients and failed to instruct the attendants to carry out and execute all the rules and regulations of the board of health pertaining to and necessary to prevent the spread of typhoid germs, which it was their duty to do, and ignored all precautions and sanitary measures necessary to prevent the spread of the disease, which was contagious; that appellees advised the appellants to move the patients from their own homes to the homes of appellants, which appellants did; that the appellees failed to notify the appellants that typhoid fever was a contagious disease and failed to take the precautions above set forth to prevent the spread of the disease; that as a result of appellees' negligence as above set forth, appellant, N. A. Davis, on the 12th day of October, 1919, became infected with typhoid germs, from which she suffered great physical pain and mental anguish resulting in permanent injury to her health, all of which, together with the sums she was compelled to expend for nursing, medicine and doctors' bills, damaged her in the sum of $ 3,000; that the minor sons, Paul and Dallas Davis, as a result of the negligence above set forth, also contracted typhoid fever on the 15th day of October, 1919, to the appellants' damage, items of which were specified, in the sum of $ 3,000; that Walker Davis, another minor son, on October 15, 1919, from the same cause, contracted the disease and thereafter died, to appellants' damage, which they specified, in the sum of $ 3,000; that appellant J. L. Davis, also by reason of the negligence of appellees as above set forth, contracted the disease, from which he suffered physical pain and mental anguish, which rendered him unable to perform his regular work, impaired his health permanently, decreased his earning power and compelled him to incur debts for medicine, nursing and doctors' bills, all to his damage in the sum of $ 3,000. The complaint concludes with a prayer for judgment in the sum of $ 3,000. The appellees entered a general demurrer to the complaint. The court entered judgment sustaining the demurrer and dismissing the complaint, and for costs in favor of the appellees, from which judgment is this appeal.

1. Typhoid fever is an infectious febrile disease caused by a micro-organism called bacillus typhosus, introduced into the system by the fingers, or with the food or drinking water. Osler's Principles and Practice of Medicine, 1-5; Forcheimer's Therapeusis of Internal Diseases, vol. 5, p. 203; (Webster's Dictionary; New International Dictionary--Typhoid Fever). It is declared by the State Board of Public Health to be "contagious, infectious, and communicable." Rules and Regulations of the State Board of Health, p. 5, § 11.

A contagious disease is one communicable by contact with a patient suffering from it, or with some secretions or object touched by such a patient. (Webster "Contagious.") "Fingers, food, water and flies are the chief means of propagation." Osler's Principles and Practice of Medicine, 5.

Keeping in mind these definitions of infectious and contagious diseases, and their means of propagation, we have reached the conclusion that the allegations of the complaint do not state facts sufficient to show that any of the acts of negligence alleged were the proximate cause of the typhoid fever contracted by the appellants and their children. It is not alleged in the complaint that typhoid fever is an infectious disease. While there is an allegation to the effect that the appellees "failed to have buried or disinfected the secretions and excretions from the bodies of the patients," there is no allegation to the effect that such failure caused the typhoid germs to get into the food or water used by appellants and their children, or in any other manner to be introduced through the mouth into the intestines of the victims of the disease. Moreover, there...