Madison v. City and County of San Francisco

• Decision Date: 22 August 1951
• Court: California Court of Appeals Court of Appeals
• Parties: MADISON et al. v. CITY AND COUNTY OF SAN FRANCISCO et al. Civ. 14410.

Page 995

234 P.2d 995

106 Cal.App.2d 232

MADISON et al. v. CITY AND COUNTY OF SAN FRANCISCO et al.

Civ. 14410.

District Court of Appeal, First District, Division 1, California.

Aug. 22, 1951.

Hearing Denied Oct. 19, 1951. ^*

Cecil F. Poole, Ulma A. Abels, San Francisco, for appellants.

Dion R. Holm, City Atty., City and County of San Francisco, George E. Baglin, Deputy City Atty., San Francisco, for respondents.

FRED B. WOOD, Justice.

Plaintiffs appeal from a judgment entered in favor of defendant City and County of San Francisco notwithstanding the verdict rendered in favor of plaintiffs and against defendants Donald Walker and the City and County of San Francisco.

The complaint was filed June 24, 1947, by Willie S. L., Sandra L., and Walter L. Madison, the surviving husband and minor children of Irealous Madison, for damages for the death of Irealous, which occurred March 16, 1947, while she was a patient at the San Francisco Hospital, operated by respondent.

The complaint alleged and the answer (jointly filed by respondent and by defendants Monte Greer and Donald Walker) admitted that Irealous was admitted to the San Francisco Hospital and while there was delivered of a child and died. The complaint alleged and the answer did not deny that respondent is a municipal corporation; that Irealous developed a post partum hemorrhage; that defendant Greer and other employees of respondent, members of the medical staff of the hospital, acting in the course of their employment, examined and treated her and performed upon her an operation of transfusion of blood; that defendant Walker, employed as a technician in the blood bank and laboratory of the hospital, was in charge of and was authorized and directed to make the necessary and proper tests and samplings of blood incidental to and necessary in said operation; that defendant Greer, likewise, with full authorization, made tests and samplings of blood incidental to said operation; and that Irealous died.

At the trial, respondent and the other defendants stipulated that defendant 'Donald Walker was an employee of the city and county, employed in the hospital, and also that the negligence of Donald Walker caused the death of the mother of the minor children and the wife of the adult plaintiff' and that Walker was then 'acting in the course and scope of his employment.'

These admissions and this stipulation left as issues, framed by the pleadings, the allegations of the complaint that respondent operated the hospital for profit in a municipal proprietary capacity; receives and cares for pay patients (other than emergency, indigent or other patients required to be admitted) in like manner as and in competition with private and other hospitals in the municipality; and received Irealous as a paying patient for hospitalization and delivery of a child.

At the conclusion of the trial, a motion for a directed verdict was made by respondent and denied by the court. The jury gave its verdict in favor of the plaintiffs and against defendant Walker and respondent, for damages in the sum of $25,000. Thereupon, respondent city and county moved for, and the court granted, judgment in favor of respondent notwithstanding the verdict.

The issue upon this appeal is whether or not there was sufficient evidence to submit to the jury on the question whether or not respondent operated the hospital in a proprietary capacity and in that capacity received Irealous as a paying patient.

Appellants base their claim that respondent is liable for the negligent act of its employee upon the theory that respondent, in its capacity of a municipal corporation, operates the hospital as a business enterprise in competition with private hospitals, and received and cared for Irealous as a paying patient. Respondent bases its claim of nonliability upon the theory that it operates the hospital in the capacity of a county, under mandate of state law in the performance of the state function of caring for the indigent sick and dependent poor (not as a business enterprise in competition with other hospitals), a governmental not a proprietary function, and that Irealous was admitted to and cared for at the hospital pursuant to that mandate, not as a paying patient.

We will consider, first, the testimony of Willie S. L. Madison, the adult appellant. He testified:

'On March 3, 1947, my wife and I went to the San Francisco Hospital to see if I could get her into the hospital. I went to the main door on Potrero Street--up the main ramp on the first level and walked half way down to the emergency entrance in the main door--that is called the social service office. I conversed with a lady there who was apparently in charge; I told her my purpose in coming; conversed with her about 45 minutes. I was talking to her concerning my wife going to the hospital. I asked, 'Could my wife go there; would my wife be permitted in the hospital,' and she said, 'Yes, but she will have to pay'; that was the first thing she told me, and I said 'All right.' She asked where I was working, and I told her Simmons Mattress Company, 295 Bay--I was employed there. She asked how much was I making, and I told her 'Approximately $50 a week, sometimes more and sometimes less.' She told me I would have to pay, that I would have to pay $69. I told her I would pay it. There was discussion with her as to when I would pay. She told me what the bill would be and I told her 1 would pay it, and then she asked me when I would pay it and I told her, 'As soon as I felt able.' She didn't ask me when that would be. There was further conversation as to the date when we were going to pay. I told her that I would pay, and that the doctor that I had for my wife owed me $50, and that I would give her that. I did not ask her if I could get free hospital or medical care for my wife. That was not my intention when I went there. They told me my wife would be there approximately seven days for this $69. At the time I was out there I did not have $69 in my pocket.

'No documents were produced to me at that time. I think this lady prepared some documents while this conversation was taking place. She was typing and asking questions of me during the time she was typing. I could see the typewriter. I think she typed as she asked me questions--she typed upon a yellow sheet of paper with carbon paper in between. She removed this paper from the machine and gave it to my wife to sign. I saw my wife sign it. This lady did not ask me to sign anything.

'After my wife signed this document in my presence, the lady told us to go to the clinic in the hospital. We went over to the clinic, did not return to the social service office following our visit to the clinic. At the clinic I was told to return there the following week. I took my wife out to the hospital the following Tuesday, right to the clinic. The lady in the clinic (not the same person who first talked to me) told me to bring my wife back to the clinic.

'I returned to the hospital March 16; took my wife back there for delivery of the baby. She was in labor at the time. I took her by automobile. We went in the emergency entrance, had no interview with any person at that time. I do not know what disposition was made of my wife at that time. I went with her to the elevator and put her in a wheel-chair. Then I went home. I went back afterwards. I talked to some nurse in the ward, asked her how my wife was going, and she said 'Fine,' and I could hear my wife talking and she told the nurse to tell me to take the child Sandra over to her sister's. That was about 5:30. After I talked with this nurse I had no other conversation on that day with any person at the hospital.

'The next time I saw my wife she was dead. I never saw her alive after that time. On the day following that, I had a conversation with a person at the hospital. It was some man. I called up and asked how was my wife, and the next words he said, my wife was dead, and then I hung up.

'When I first went to the hospital and inquired about maternal care for my wife, she had approximately three weeks to go. She had not been denied admission to any other hospital prior to going to the San Francisco Hospital. I had not tried to get her into any other place.

'I was not referred to the hospital by any physician. I had not made any attempt to have her admitted to any other hospital. I was talking to some friends of mine and they told me about this hospital and then I knew about it, and it was a large hospital, so I figured it was all right. Friends of mine had children that were born at the hospital and told me about the hospital. They did not tell me that certain people were able to obtain that medical attention free. I did not have that in mind at all when I went there. I intended to pay for my wife's medical attention. I had never attempted to get my wife in any other hospital. Prior to my wife's death her health had been good. She had not received hospitalization in San Francisco prior to the time she went there in March. She had not seen a doctor before except with reference to pregnancy. She had had no serious illness. She was not employed. She kept her home, and took care of the older child. She had been kindly and affectionate, by disposition, to our child. I did not ask anyone before going to the hospital what office I had to go to concerning medical care for my wife. I arrived at the social service office because that is the only door I saw they had, that the office was set up in; so we went in there and started talking to the lady and she talked to us there.

'Prior to March, 1947, I had a doctor for my wife and was paying in advance for his services to deliver the baby; had paid him $50. My wife and I decided to go to a hospital, and the doctor agreed to refund the money to me. He agreed to that before I took her to the hospital.

'Other than the occasion on which I first went to the hospital, concerning which I have testified, I never...