Hale v. Atkins
| Decision Date | 07 December 1923 |
| Citation | 256 S.W. 544,215 Mo.App. 380 |
| Parties | JAMES C. HALE v. W. ARTHUR ATKINS |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Webster County.--Hon. C. H Skinker, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Seth V Conrad and Hamlin & Hamlin for appellant.
Moore Barrett & Moore and J. E. Haymes for respondent.
--Plaintiff recovered a judgment in the trial court. The defendant appeals and assigns as error, first, that the demurrer to the evidence should have been sustained; second, error in instructions, and third, excessive amount awarded by the jury in the verdict.
The defendant is a physician residing in Rogersville, Mo. In connection with his practice he runs a private hospital, consisting of rooms fitted up with beds and equipment for his sick patients. His wife and an assistant attend to the hospital. They are not nurses, and the defendant does not employ graduate or regular nurses, and does not agree to furnish same to his patients who stay in his hospital.
The plaintiff, residing on a farm, called for the defendant to render medical services. The defendant informed him that he had appendicitis and that an operation should be performed, and advised him to go to his hospital or some other one and have it done. The evidence makes it clear that he told the plaintiff, his wife and father, who were present, that he furnished no nurses but that he should have one and that he thought one would cost from $ 25 to $ 40 a week. He also told him that he should have an assistant doctor in performing the operation. After talking it over plaintiff asked him to secure the services of Dr. Delzell in Springfield and to get a graduate nurse in Springfield to come down and nurse him. Defendant came to Springfield, saw Dr. Delzell and asked him to recommend a competent graduate nurse. He suggested a Miss Swinney, whom the defendant saw, and as a result he took her to Rogersville and the defendant and Dr. Delzell performed the operation. The evidence clearly shows that Miss Swinney was not furnished by the defendant, but that he exercised reasonable care in selecting her at the request of the plaintiff.
When the nurse arrived at the hospital she directed defendant's wife to prepare the bed for the plaintiff to be laid in after the operation, and instructed her to heat the bed by putting hot water bottles (rubber) in same. As a result the defendant's wife placed two hot water bottles in the bed. After the operation was performed the plaintiff was taken from the operating room by the defendant and while still unconscious from the anesthetic he was placed in the bed which had been prepared. Several hours afterwards, when the plaintiff became conscious, he complained of his foot burning and the nurse found a hot water bottle against his ankle and foot, and there was a severe burn.
The defendant swore that he saw one hot water bottle when he laid plaintiff on the bed, which he threw off, and that the bed was clear when he laid plaintiff down and covered him up. The nurse testified that she did not go with plaintiff when he was placed in the bed but that she remained in the operating room and cleaned and attended to the instruments which had been used in the operation, and that when she did go to the plaintiff he was unconscious and that she placed no hot water bottle against him and did not know that one was there until plaintiff complained.
Appellant claims that it being shown that the nurse was not an employee of his, he cannot be held for her negligence, and in this we agree with him. The petition, however, charges, and the evidence shows, that he was employed to perform the operation and attend to and care for him in his hospital during this operation and during the illness which followed. The petition further charges that while unconscious from the operation the defendant laid him upon the hot water bottle in the bed and that as a result of such negligence the plaintiff was injured. The following facts are clearly shown or admitted: Two hot water bottles were placed in the bed in which plaintiff was laid, only one of them was taken out by the defendant when he placed plaintiff in the bed; shortly thereafter the plaintiff was severely burned by a hot water bottle in the bed. This furnishes the basis for an inference that one was left in the bed when defendant placed plaintiff there, and if he did, it certainly leaves it a question for the jury to say whether he was negligent or not. True it is the defendant testified that when he took out the one he saw on the bed there was no more left, and that when the plaintiff was placed in the bed it was entirely clear. So defendant's wife, who placed them in the bed, says that she went to see if they were out as they were taking plaintiff from the operating room; but it was for the jury to decide whether defendant's explanation exonerated him. The jury evidently did not believe that this bottle which burned plaintiff was removed from the bed when defendant laid him down. Ordinary care requires that those entrusted with the care of unconscious persons shall take great precaution to see that no injury occurs.
We hold that under the...
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