International Order of Twelve of Knights and Daughters of Tabor in Miss. v. Barnes, 36721.

• Court: Mississippi Supreme Court
• Citation: 37 So.2d 487,204 Miss. 333
• Docket Number: 36721.
• Parties: INTERNATIONAL ORDER OF TWELVE OF KNIGHTS AND DAUGHTERS OF TABOR IN MISSISSIPPI v. BARNES.
• Decision Date: 22 November 1948

37 So.2d 487

204 Miss. 333

INTERNATIONAL ORDER OF TWELVE OF KNIGHTS AND DAUGHTERS OF TABOR IN MISSISSIPPI
v.
BARNES.

No. 36721.

Supreme Court of Mississippi

November 22, 1948

[204 Miss. 334] Walter Sillers, of Rosedale, Smith & Jones, of Cleveland, B. A. Green, of Mound Bayou, and W. W. Simmons, of Cleveland, for appellant. [37 So.2d 488]

[204 Miss. 337] Alexander & Feduccia, of Cleveland, for appellee.

[204 Miss. 340] ALEXANDER, Justice.

Appellee was a patient in the hospital operated by appellant. While under the influence of an anesthetic, his arm was badly burned by hot water bottles placed about him by the nurses in charge. Suit was brought aganst the hospital for its negligence in this respect under the doctrine of respondeat superior. After preliminary examination had disclosed that the hospital was properly to be classified as charitable, the declaration was sought to be amended so as to count upon the negligence of the defendant in its selection of incompetent nurses, resulting in the injury complained of. The allowance of this amendment [204 Miss. 341] is assigned for error by the appellant, against whom judgment was subsequently obtained. We do not find any merit in the contention that the original declaration should have been manually amended by interlineation or otherwise. The plaintiff filed his motion for such amendment setting out its exact terms, and these were incorporated into an order which quoted the text of the motion and which was filed in the cause and entered upon the minutes of the court. This was sufficient under Gill v. L. N. Dantzler Lumber Co., 153 Miss. 559, 121 So. 153. See also Code 1942, Section 1306; 41 Am.Juris., Pleading, Section 288. The case thereafter proceeded upon the issue of negligence of the hospital in the selection of its nurses.

The errors assigned include (1) the overruling of defendant's motion to quash process against it, (2) refusal of a peremptory instruction in its favor, (3) the admitting of evidence on behalf of the plaintiff relating to the method of employing its nurses, (4) the giving and refusing of said instructions, the details will be later referred to, (5) admitting in evidence the hospital chart covering plaintiff's case.

In view of our conclusion that the cause should be remanded, the first assignment now becomes moot. In regard to the second assignment, we are of the opinion that there was no error in refusing a peremptory instruction on behalf of the defendant. We find no error in the admission of evidence as to the method of employing nurses in the hospital. While the negligence vel non of the hospital must be tested with reference to the alleged negligence of the particular nurses, or nurses responsible for preparing and supplying the hot water...