Fergison v. Belmont Convalescent Hospital, Inc.

• Decision Date: 29 July 1959
• Citation: 343 P.2d 243,217 Or. 453
• Parties: Fermine FERGISON, as Administratrix of the Estate of Mabel B. Paige, Respondent, v. BELMONT CONVALESCENT HOSPITAL, INC., an Oregon corporation, Appellant.
• Court: Oregon Supreme Court

Page 243

343 P.2d 243

217 Or. 453

Fermine FERGISON, as Administratrix of the Estate of Mabel B. Paige, Respondent, v. BELMONT CONVALESCENT HOSPITAL, INC., an Oregon corporation, Appellant.

Supreme Court of Oregon, Department 2.

Argued and Submitted Feb. 13, 1959.

Decided July 29, 1959.

Wayne A. Willamson, Portland, argued the cause for appellant. With him on the brief were Mautz, Souther, Spaulding, Denecke & Kinsey and Douglas M. Thompson, Portland.

William D. Campbell, Portland, argued the cause for the respondent. With him on the brief were Freed & Failing and Paul D. Hanlon, Portland.

Before McALLISTER, C. J., and ROSSMAN, LUSK and WARNER, JJ.

ROSSMAN, Justice.

This is an appeal by the defendant, Belmont Convalescent Hospital, Inc., from a judgment in the sum of $2,832.35 which the circuit court entered against it and in favor of the plaintiff, Fermine Fergison, administratrix of the estate of Mabel B. Paige, deceased. The judgment was based upon a verdict. Fermine Fergison was a daughter of the deceased. The defendant is a non-eleemosynary corporation which operates a home for convalescents. The action was filed pursuant to ORS 30.020 which reads:

'When the death of a person is caused by the wrongful act or omission of another, the personal representatives of the decedent, for the benefit of * * * the estate of the decedent, may maintain an action against the wrongdoer, if the decedent might have maintained an action, had he lived, against the wrongdoer for an injury done by the same act or omission. * * * and damages therein * * * may include a recovery for all reasonable expenses paid or incurred for funeral, * * * doctor, hospital or nursing services for the deceased.'

In her complaint the plaintiff alleged that the death of the decedent, Mabel B. Paige, was due to the negligence of the defendant and prayed for judgment in the amount of the funeral, doctor, hospital and nursing expenses which the estate had incurred.

July 27, 1953, when the deceased, Mabel B. Paige, was 82 years of age, she was admitted to the defendant's home. The complaint alleges:

'At the time decedent was admitted to said Home and at all times thereafter while she was a patient herein defendant knew that decedent's physical condition was such that she was likely to fall and injure herself if permitted to get out of her bed and walk about the darkened room at night unassisted, and knew that she was in the habit of getting up from her bed and going to the bathroom during each night.

'After having equipped and maintained decedent's bed with side-rails to prevent her from leaving her bed at night and walking about unassisted, defendant negligently and carelessly ceased to provide such side-rails or any other safe-guard, and as a result of defendant's said negligence and carelessness decedent, during the night of August 5-6, 1953, while a patient at said Home, left her bed, and, while attempting to walk unassisted in the darkened room, fell and was fatally injured as hereinafter more particularly set forth.'

The parties agree that Mrs. Paige fell to the floor of her room in the defendant's convalescent hospital. The hour evidently was 12:30 a. m. of August 6, 1953. The evidence indicates that at about that time she suffered a paralytic stroke, that is, a cerebral hemorrhage. No one saw Mrs. Paige fall nor the incidents preceding the fall, but she was lying upon the floor when attendants in the defendant's employ, who had heard her call for help, came to her.

Although the averment which we quoted from the complaint says that Mrs. Paige was 'fatally injured' in a fall August 6, 1953, her death did not occur until June 28, 1954,--10 months and 22 days after August 6, 1953. It will be recalled that she was admitted to the defendant's convalescent hospital July 27, 1953,--11 days before the fall. Doctor Bruce A. Boyd, the physician who attended Mrs. Paige during her final two weeks of life, wrote in the part of her death certificate which called for 'diseases or condition directly leading to death' 'Cardiac Failure' and as a witness explained that the term means heart failure. In another space of the death certificate entitled 'antecedent causes' he wrote, 'Hypertensive & Arteriosclerotic Cardiovasc. Dis.' In a third space which asked for other significant conditions he entered 'Cerebral Arteriosclerosis.'

The plaintiff contends that the brain hemorrhage which Mrs. Paige suffered August 6, 1953, came upon her in one of the following ways: (1) through the physical efforts she made in getting out of her bed, (2) through anxiety, which the plaintiff says Mrs. Paige experienced after she got out of bed and found herself standing in a darkened room or (3) in falling to the floor. The plaintiff presented evidence of which we will take greater notice later that fear, excitement, a fall or physical exertion can produce a brain hemorrhage in a person whose physical condition had deteriorated to the extent of Mrs. Paige's. She argues that it was the duty of the defendant to have maintained bed rails upon Mrs. Paige's bed, and that if it had not neglected that alleged duty the brain hemorrhage and the eventual death would not have occurred.

The medical expenses for which recovery was sought, $2,832.35, were incurred, according to the plaintiff, as a result of the paralytic stroke sustained August 6, 1953. After Mrs. Paige's death this action, which we have said is based upon ORS 30.020, was instituted. It sought the recovery of not only the medical expenditures but also of $1,080.40 funeral expenses. The verdict, however, was in the sum of $2,832.35, the exact amount of the medical expenses (doctor, hospital and nursing).

The defendant submits only one assignment of error. It reads:

'The Court erred in failing to allow defendant's motions for judgment of involuntary non-suit and for directed verdict, which said motions are as follows * * *.'

Both motions were based upon the following grounds: (1) Although two daughters of Mrs. Paige who brought her to the defendant's convalescent hospital requested the defendant to provide her bed with side-rails so as to prevent her from leaving the bed, the evidence fails to indicate that the defendant owed Mrs. Paige, who was mentally alert and who asked that the rails be removed, a duty to maintain them so as to prevent her from leaving her bed; (2) The record does not indicate that the lack of rails on the night of August 6 was a proximate cause of Mrs. Paige's injury, either by causing her to fall or by causing her to suffer a stroke; (3) The record fails to indicate that Mrs. Paige's death, virtually eleven months after the unfortunate incidents that occurred August 6, was the result of the latter unless speculation and conjecture are accepted as substitutes for evidence; and (4) The evidence fails to show the amount of the medical expenses which Mrs. Paige would have incurred in any event, and it was therefore error for the circuit court to award the plaintiff recovery for all medical expenses that were incurred after August 6.

The following is a brief statement of the facts disclosed by the evidence. It is set forth in the version most favorable to the plaintiff.

Mrs. Paige was 82 years of age when she entered the defendant's convalescent hospital. She had poor eyesight and suffered from hypertension, generalized arteriosclerosis and a kidney involvement. About five months earlier she had been the victim of a stroke of paralysis from which she had virtually recovered but it left her with a predisposition to another. In walking she had to steady herself with a cane or by holding on to a companion. But on the whole, she was in generally good health provided her advanced years were borne in mind. All of the witnesses who were questioned upon the subject described Mrs. Paige as alert mentally and a good conversationalist. She dressed herself, combed her hair and needed no help in feeding herself. During the day she sat in a chair. With help she walked down the corridor of the convalescent hospital.

When Mrs. Paige had her stroke in California she stayed in a rest home. Prior to the stroke she had lived with one of her daughters in California.

July 27, 1953, Mrs. Paige was brought to Portland when the daughter in California had become ill. She came to Portland because Mrs. Fergison lived there. When she entered the defendant's convalescent hospital Mrs. Fergison and the daughter who brought her to Portland informed the defendant's manager that the mother had a habit of going to a bathroom several times at night and that unless restrained from so doing by bed rails they feared she might sustain injury by falling in the darkness. They requested that side-rails be installed upon her bed and displayed a letter written by a nurse in the California rest home which stated that Mrs. Paige's bed there had bed rails. In the presence of the daughters defendant's manager installed side-rails upon one side of Mrs. Paige's bed. They ran the length of the bed and extended 14 inches above the mattress. The bed was so placed that the side thus equipped faced the room. The side without rails was placed against the wall. The rails could not be lowered by any one in the bed.

Four days after Mrs. Paige's admission to the defendant's convalescent hospital she was transferred to another room and the bed was again so placed that the side with rails faced the room. Two days later, when it developed that the sun shone into Mrs. Paige's eyes, the position of her bed was reversed and thereupon the side with rails faced the wall and, accordingly, she was not prevented by any rails from leaving her bed. For the next four days and until her fall on August 6 the side of her bed which faced the room was without rails.

The only testimony as to what transpired on the night of the accident, August 6, was given by Mrs. May Frances Taylor, a practical nurse who was employed in the defendant's hospital and who until...