Durfee v. Dorr

Decision Date17 April 1916
Docket Number342
Citation186 S.W. 62,123 Ark. 542
PartiesDURFEE v. DORR
CourtArkansas Supreme Court

Appeal from Independence Circuit Court; Dene H. Coleman, Judge reversed.

Judgment reversed and cause remanded.

Hal L Norwood and W. K. Ruddell, for appellant.

1. It was error to direct a verdict for the defendants. Where there is any evidence tending to establish an issue, it is error to take the case from the jury. 63 Ark. 94; 89 Id. 589; 77 Id. 556; 89 Id. 368; 33 Id 350; 36 Id. 451; 39 Id. 413; 105 Id. 526; 35 Id. 147.

2. In reviewing the action of the trial court in directing a verdict for defendant the testimony must be given its strongest probative force in favor of the plaintiff's cause of action. 76 Ark. 520; 71 Id. 445; 73 Id. 561.

3. The question as to whether defendants were negligent should have been submitted, under proper instructions to the jury for determination. L. R. A. 1915 D. 334; 77 Ark. 458; 64 Id. 535; 75 Id. 479; 80 Id. 190; 100 Id. 53; 98 Id. 413; 95 Id. 359; 92 Id. 502; 94 Id. 246; 97 Id. 347; 97 Id. 553. There was evidence of negligence. L. R. A. 1915 D. 334; 35 Ark. 602, 614.

4. A patient is admitted to a hospital conducted for private gain, under the admitted obligation that he shall receive such reasonable care and attention for his safety as his mental and physical condition, if known, may require. 7 N. C. C. A. 82, 88; 148 N.W. 582; L. R. A. 1915 D. 334. This was a clear case of negligence.

5. Defendants were bailees of the patient, had exclusive and actual possession and control of him for hire, and they agreed to care for him. 101 Ark. 75, 82; 28 L. R. A. 716. Injuries to patients by doctors is something that does not usually happen where due care is used. 5 R. C. L. 77; 166 N.Y. 188; 82 Am. St. 630; 189 Ill. 430; 52 L. R. A. 930; 2 Id. 820, 823; 2 Enc. of Ev. 194. Whether defendants used due care or were negligent was a question for the jury. L. R. A. 1915 D. 334, 341.

McCaleb & Reeder, for appellees.

1. The burden was on appellant to prove that deceased was in a feverish and delirious condition and that defendants knew, or should have known that it was dangerous to leave him alone or unattended; that he fell from the porch to the ground and that the death was the proximate result of a fall and not of disease or natural causes. Plaintiff wholly failed to make proof of any of these facts and a verdict was properly directed.

2. The burden was on appellant to show that the injury resulting in death was produced by some wrongful or negligent act of defendants. 8 R. C. L., p. 857-8 and notes; 79 Ark. 608; 97 Id. 469. A patient is generally admitted to a hospital under an implied obligation that he shall receive such reasonable care and attention for his safety as his mental and physical condition, if known, may require. 148 N.W. 575; Ib. 582; 17 L. R. A. (N. S.) 1167; 14 Id. 784; 174 S.W. 409; 14 N.Y.S. 881; 39 N. Y. St. 98; 104 N.Y. 434; 84 N.Y. 455; 14 N.Y.S. 884-5. Here there is no evidence of negligence whatever. 63 W.Va. 84; 59 S.E. 943; 105 Ark. 161; 179 U.S. 658; 222 Mo. 488; 87 Ark. 217; 82 Id. 372; 18 S.W. 172; 87 Ark. 321; 70 S.W. 376; 105 N.W. 197; 79 N.W. 76; 93 S.W. 868; 79 Ark. 76. The burden was on appellant to show that the defendants' negligence was the proximate cause of death. 63 A. 234; 61 Id. 189; 54 S.E. 784; 51 Id. 851; 52 A. 864; 81 S.W. 1019; 34 S.E. 986; 14 F. 558; 47 N.E. 434; 7 A. & E. Enc. L. 381; 81 S.E. 579; 89 A. 170; 63 F. 400; 71 N.E. 509; 74 N.W. 1046; 125 P. 1044; 188 N.W. 70 and many others. The court properly directed a verdict.

SMITH, J. KIRBY, J., dissents.

OPINION

SMITH, J.

Appellant, in his own right and as administrator of the estate of his deceased son, sued appellees who, as partners under the firm and style of Dorr, Gray & Johnston, are engaged in the practice of medicine and, in connection with their practice, operate a sanitarium in the city of Batesville. Appellant's intestate was his son, a young man twenty-five years old, who was received by appellees as a patient on July 26, 1915. Appellees performed an operation for abscess of the liver on their patient on Tuesday, and the patient died on the following Saturday.

The complaint alleges that appellees accepted deceased as a patient in their sanitarium and agreed to furnish him nurse, board, room, and medical attention, but the patient was left in the room by himself while in a feverish, nervous, delirious, or unconscious condition and that he "while in such condition walked out of the upstairs door to the sanitarium and fell over the banisters and that he suffered from said fall and died from the effects thereof. That the defendants were guilty of carelessness and negligence in not having some one to keep watch or guard over the said Dolph Durfee (the patient) while he was in such condition, and that the pain, suffering and death was due to the negligence of the defendants."

Appellees demurred to the complaint and answered denying any negligence, or that Dolph Durfee was in a delirious condition, or that they had contracted to keep a nurse in constant attendance or that it was customary to do so, and, further answering, they alleged that the said Dolph Durfee was dangerously and critically ill and could have lived but a few hours at most, and that any injuries received in his fall, if he fell, could not have been the proximate cause of his death.

At the conclusion of the evidence the court directed the jury to return a verdict in appellees' favor, and this appeal is duly prosecuted from the verdict so rendered.

We are required, therefore, to give the evidence its highest probative value in appellant's favor, and when we have done so this evidence may be summarized as follows: Appellant placed his son in the sanitarium with the direction that he be given proper attention, and it was agreed that a fee of $ 50 should be paid for the operation and, that, in addition, $ 28 per week should be charged for the hospital fees and nurse. There was no agreement for any individual or special nurse. The operation was performed for abscess of the liver and an incision five inches long was made and a part of a rib removed, and the incision was sewed up except for drainage. No hope of recovery was held out, and the prognosis was that death would ensue. The city of Batesville was visited by an unusual flood in August, 1915, and as a result thereof the electric light plant had been out of commission and the entire city was in darkness except for such light as the moon afforded, but the night in question was within a few days of the full moon. A Mr. Hardy testified that he saw young Durfee lying on the ground in a white night-shirt directly under the upstairs hall door under a platform which was fourteen feet high and which was enclosed with banisters, which were two feet four inches high, but that the stairs and platform were entirely on the outside of the building and that Durfee was lying on a pile of weeds or grass which had been cut and raked there, and that his night-shirt was slightly damp. That witness and the night marshal took Durfee upstairs and found none of the doors fastened and all of the upstairs was dark and no one was in sight, and they saw nothing of a nurse until they had carried Durfee to his room, which was only ten feet from the platform and stairway. Witness' attention was attracted by the voice of Durfee, calling, "Come here." Durfee was interrogated as to how he came to be where he was found, but could give no explanation and answered that he did not know. He walked a few steps after he had been assisted to his feet but was too weak to walk any distance and was carried to his room, he himself giving the information as to its location. A Mr. Ivey testified that he was at his hotel directly across the street from the sanitarium and that he was sitting in front of the hotel when he saw Hardy go to Durfee. That he had been there for possibly half or three quarters of an hour before Hardy came up and that he was in plain view of the stairs leading down from the sanitarium and that he saw no one on the stairs. He also testified that he saw no one fall from the platform. The undertaker who prepared the body for burial testified that there were skinned places on one knee and that the other knee was bandaged up and that there were other small scratches on the body, but no broken bones were found. There was other evidence as to the wounds and scratches found and that Durfee's hands were covered with earth and that the nurse washed them after he was placed back in bed. A physician testified that one might have fallen over the banisters on to the pile of hay below without leaving any external evidences of injuries and yet be seriously hurt internally, and that if an internal injury had been sustained the drawing up of the legs would be an indication of that fact, and it was shown that Durfee remained in that position after his return to his room when he was placed in his bed.

Appellees made no attempt to...

To continue reading

Request your trial
17 cases
  • Regions Bank & Trust v. Stone County Skilled Nursing Facility, Inc.
    • United States
    • Arkansas Supreme Court
    • July 9, 2001
    ...to the danger apprehended, judged by the condition of affairs before the accident occurred." Dollins, 252 Ark. at 18. In Durfee v. Dorr, 123 Ark. 542, 186 S.W. 62 (1916), this court stated that Durfee, as a patient of a hospital, was owed a duty of reasonable care and attention given the ne......
  • Quick v. Benedictine Sisters Hospital Association
    • United States
    • Minnesota Supreme Court
    • March 25, 1960
    ...and submitting the case to the jury. For that reason there should be a new trial. Reversed and a new trial granted. 1 See, Durfee v. Dorr, 123 Ark. 542, 186 S.W. 62; Wood v. Samaritan Institution, 26 Cal.2d 847, 161 P.2d 556; Hawthorne v. Blythewood, Inc., 118 Conn. 617, 174 A. 81; Adams v.......
  • Jeanes v. Milner
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • June 8, 1970
    ...care and attention to its patients as the circumstances require, Walls v. Boyett, 216 Ark. 541, 226 S.W.2d 552 (1950); Durfee v. Dorr, 123 Ark. 542, 186 S.W. 62 (1916). (2) A directed verdict at the close of the plaintiff's evidence should be sparingly granted as it deprives the plaintiff o......
  • Ward v. Forrester Day Care, Inc.
    • United States
    • Alabama Supreme Court
    • March 24, 1989
    ...(1965) (wheelchair in hospital caused injury); Gallachicco v. State, 43 N.Y.S.2d 439 (Ct.Cl.1943) (hospital elevator); Durfee v. Dorr, 123 Ark. 542, 186 S.W. 62 (1916) (doctrine applied on the basis of evidence tending to show that the injury could not have resulted other than from the hosp......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT