Marks v. St. Francis Hospital and School of Nursing

• Decision Date: 29 February 1956
• Docket Number: No. 39982,39982
• Citation: 179 Kan. 268,294 P.2d 258
• Parties: Carl F. MARKS, Husband of Mary Marguerite Marks, Deceased; Clara Jane Marks, a minor, by Carl F. Marks, her father and next friend; and Jerry Allen Marks, a minor, by C. F. Marks, his father and next friend, Appellants, v. ST. FRANCIS HOSPITAL and SCHOOL OF NURSING, Inc., Appellee.
• Court: Kansas Supreme Court

Page 258

294 P.2d 258

179 Kan. 268

Carl F. MARKS, Husband of Mary Marguerite Marks, Deceased;

Clara Jane Marks, a minor, by Carl F. Marks, her father and next friend; and Jerry Allen Marks, a minor, by C. F. Marks, his father and next friend, Appellants, v. ST. FRANCIS HOSPITAL and SCHOOL OF NURSING, Inc., Appellee.

No. 39982.

Supreme Court of Kansas.

Feb. 29, 1956.

Syllabus by the Court.

1. A demurrer to a pleading searches the record and is applied to the first defective pleading.

2. The filing of a petition which does not state a cause of action does not toll the statutes of limitation.

3. A private hospital must exercise toward a patient such reasonable care as his known condition may require, the degree of care being in proportion to his known physical and mental ailments.

4. The record examined in an action for wrongful death, and held, that the original petition filed did not state a cause of action against the defendant.

5. The record further examined, and held, that an amended petition was not filed until after the bar of the statute of limitations had fallen.

6. The record further examined, and held, the trial court did not err in sustaining the defendant's demurrer to the plaintiffs' amended petition.

Robt. Morrison, Wichita, argued the cause, and Ralph E. Gilchrist, Carl L. Buck, and Kenneth A. Kueny, Wichita, were with him on the briefs for appellants.

Hugh P. Quinn, Wichita, argued the cause, and Getto McDonald, William Tinker, Arthur W. Skaer, Jr., and William Porter, Wichita, were with him on the briefs for appellee.

THIELE, Justice.

The present appeal is from the order and decision of the trial court sustaining a demurrer to the plaintiffs' amended petition.

Briefly stated, on November 8, 1954, plaintiffs, as surviving husband and children of Mary Marguerite Marks, commenced an action against the defendant, to recover for her wrongful death, alleged to have occurred on or about November 10, 1952. As a result of motions directed at the petition, an amended petition was filed on January 26, 1955. The defendant demurred to this petition on the ground it showed on its face that the purported cause of action was barred by the statute of limitations, and that it did not state facts sufficient to constitute a cause of action. This demurrer was sustained and plaintiffs perfected their appeal.

In this court it is contended by the appellants that their first petition stated a cause of action, which was amplified by the allegations of their amended petition, citing Moeller v. Moeller, 175 Kan. 848, 267 P.2d 536. Appellee contends that its demurrer searched the record; that the original petition did not state a cause of action and that, if the amended petition is sufficient, it was filed after the bar of the statute of limitations, G.S.1949, 60-3203, had fallen.

We think it well settled that a demurrer searches the record and is applied to the first defective pleading. See e.g., Beeler & Campbell Supply Co. v. Warren, 149 Kan. 135, 86 P.2d 482, and cases cited. It is also settled that the filing of a petition which does not state a cause of action does not toll the statute of limitation. See e.g., Waddell v. Woods, 160 Kan. 481, 163 P.2d 348, and cases cited.

In accord with the above rules we examine the original petition to determine whether facts were pleaded sufficient to state a cause of action.

Omitting allegations of formal matters and of the status of the parties, the gist of the petition was that defendant operated a hospital for the care of mentally and physically ill persons who required hospital service, and agreed to exercise reasonable care in administering to such patients; that in October, 1952, defendant accepted as a patient Mary Marguerite Marks who was then in need of hospitalization because of her mental and physical condition; that she was placed in the hospital under the direction of Dr. G. Q. Street, a psychiatric specialist; that she was accepted as and remained a patient for approximately thirty days; that during the time she was confined in the hospital she was to receive the care, custody and control of defendant that was reasonable, necessary and required for the protection of her health and physical being; that at all times the defendant had full knowledge she was suffering from a mental disorder as well as physical disability which required she be given constant attention and nursing; that all of said services were performed by the defendant for a stipulated amount which had been paid. The charges of negligence alleged were: 1. In failing to provide a safe place for the care and control of Mary Marguerite Marks when defendant had full knowledge of her mental and physical condition; 2. In allowing her to leave the hospital unattended on November 10, 1952; 3. In failing to provide customary and physical supervision and care for the type of mental and physical illness from which she was suffering; and 4. In failing to provide proper hospital care in accordance with defendant's implied agreement at the time she was accepted as a patient. It was further alleged 'That as a result of the negligence of said defendant * * * the death of Mary Marguerite Marks was caused * * *.' There is no allegation as to the circumstances of her death. The remaining allegations deal with the heirship of plaintiffs and the damages sustained by them.

The gist of appellants' contention that the petition stated a cause of action is that it is clear from the petition that they suffered a loss through wrongful death and that under G.S.1949, 60-3203, they have a remedy, and that the only question is whether appellee is responsible for the wrongful death; that their petition meets the requisites mentioned in Rowell v. City of Wichita, 162 Kan. 294, syl. #1, 176 P.2d 590, that no cause of action for negligence is stated unless it is alleged that there is a duty on the part of one to protect another against injury, a breach of that duty, and that the injury received is the proximate result of that breach; that they alleged acceptance by appellee of Mary Marguerite Marks as a paying patient and appellee had a legal obligation to exercise reasonable care in administering to her in support of which they quote from 41 C.J.S., Hospitals, § 8, p. 349, that:

'Although a private hospital is not an insurer of a patient's safety, it must exercise such reasonable care toward a patient as his known condition may require.' (Emphasis ours.)

On the assumptions just recited, appellants further argue that it was not a necessary element of negligence that the one charged should have foreseen the precise injury, Frazier v. Cities Service Oil Co., 159 Kan. 655, syl. 2, 157...