Medical & Surgical Memorial Hospital v. Cauthorn

• Court: Texas Civil Court of Appeals
• Writing for the Court: SUTTON
• Citation: Medical & Surgical Memorial Hospital v. Cauthorn, 229 S.W.2d 932 (Tex. Ct. App. 1949)
• Decision Date: 31 December 1949
• Docket Number: No. 4762,4762
• Petition History: writ ref'd n.r.e.
• Parties: MEDICAL & SURGICAL MEMORIAL HOSPITAL v. CAUTHORN.

Page 932

229 S.W.2d 932

MEDICAL & SURGICAL MEMORIAL HOSPITAL v. CAUTHORN.

No. 4762.

Court of Civil Appeals of Texas, El Paso.

Dec. 31, 1949.

Rehearing Denied Jan. 25, 1950.

Eskridge & Groce, San Antonio, Warren & Groce, Corpus Christi, for appellant.

Stahl & Sohn, Al J. Klein, San Antonio, for appellee.

SUTTON, Justice.

This appeal is from a judgment of the 57th District Court of Bexar County.

P. H. Cauthorn sued the Medical & Surgical Memorial Hospital to recover damages sustained as the result of a burn to his great toe and the two adjacent toes while a patient in the Hospital. The facts were tried to a jury and the case submitted on special issue on the answers to which judgment was rendered for the plaintiff in the sum of $5,500.00, from which the Hospital prosecutes this appeal.

The plaintiff entered the Hospital on February 1, 1947, for the treatment of a diabetic ulcer on the sole of his foot and near the great toe. His physician prescribed heat treatments to be applied by means of a heat cradle, the heat to be applied alternately hourly, that is, the heat to be applied for one hour and discontinued for an hour and applied again for an hour and discontinued for an hour, etc. Plaintiff alleged in that connection it was the nondelegable duty of the defendant hospital to supply for such treatment a safe and customary type of heat cradle, but that it negligently failed to do so but instead supplied an improvised and makeshift heatcradle, and further charged negligence on the part of a nurse assigned to attend him, but this latter claim of negligence is not involved on the appeal.

The defendant filed a general denial; a plea of contributory negligence, which is also not here involved, and specially that it is a corporation organized and operated for purely public charity and educational purposes and exempt from tort liability.

The plaintiff filed a supplemental petition wherein he pleaded various grounds and facts which he claimed destroyed the claimed immunity. Very much of the proof in the case was directed toward that issue and much of the briefs are devoted to it.

On the theory pleaded by plaintiff the defendant hospital was negligent in failing to provide a safe heat cradle for the treatment of plaintiff, the Court submitted three special issues, which were:

'Do you find from a preponderance of the evidence that the defendant failed to provide the plaintiff with a heat cradle that was sufficient to safely provide heat for plaintiff's foot?

'Do you find from a preponderance of the evidence that such failure, if any, to provide plaintiff with a heat cradle that was sufficient to safely provide heat for plaintiff's foot was negligence?

'Do you find from a preponderance of the evidence that such negligence, if any, was a proximate cause of the injuries, if any, sustained by plaintiff?'

The jury answered each such issues in the affirmative.

The defendant has five points, the first three of which are briefed together, and have to do with its claimed exemption from tort liability because of its charity character. Under this grouping the defendant argues it is not liable notwithstanding the findings of the jury in response to the special issues above, and relies upon the cases of Southern Methodist University v. Clayton, 142 Tex. 179, 176 S.W.2d 749 and Scott v. Rice, Tex.Civ.App., 178 S.W.2d 156, e. r.

Plaintiff has resided in Bexar County for thirty years and had had a wooden right leg since he was 17 years old. His age does not appear. As heretofore noted he was admitted to the hospital for the treatment of a diabetic ulcer. Because of the diabetic condition his left foot was numb. The treatment prescribed has already been noticed. Mrs. Alfredo Hassell had been connected with the hospital since 1927, and had been Superintendent since 1940. She testified heat cradles are supplied by hospitals for treatments ordered by attending physicians. Mr. Arthur Moede, business manager of the hospital since 1940, described a heat cradle thus: 'The frame is constructed of a heavy wire or a light weight metal. The metal is so constructed that it will support a covering, either canvas or blanket. The socket which holds the globe is welded or fastened onto the metal frame. The framework itself has no bottom to it, due to the fact that you want the entire heat to penetrate to the patient or onto the bed. By comparison, the shade may be compared to a Quonset Hut. It is open at the bottom.'

Mrs. Hassell and Dr. Hargis described a heat cradle in about the same manner. Heat cradles are standard equipment and may be bought most anywhere from concerns handling pharmaceutical and medical supplies. The so-called improvised heat cradle used in the treatment of plaintiff consisted of a metal frame, similar to that described, and a goose-neck lamp set on the floor at the foot of plaintiff's bed with the neck bent and extended inside the metal frame. The frame was covered with a sheet.

On the night of February 5 and 6 in the neighborhood of midnight one of four other patients occupying the ward with plaintiff complained to the nurse on duty the light from the heat cradle was bothering him and requested it be covered with something to exclude the light. The nurse tossed a blanket over it, and there is evidence to the effect the light under the cradle was never turned off or on or otherwise given attention until about 7 A.M. when the day nurse came on and discovered plaintiff's burns.

The goose-neck lamp used was described with respect to the length of the neck which protruded into and under the cradle and one that showed considerable use and a somewhat flexible neck. The inference is the blanket in some way weighted the lamp down or knocked it over and against plaintiff's foot. The description of a standard heat cradle indicates the lamp bulb or heated metal would not and could not have come in contact with plaintiff foot unless upset and turned onto a side or top.

There seems to be no point made but that the findings of the jury, supra, would convict a private hospital operated for profit of negligence, and that the evidence is sufficient to support the findings, but the contention is there is no liability, notwithstanding the facts and findings, because of the charitable immunity. It is our conclusion the findings do establish negligence and that they have support in the evidence. The point to be determined, however, is whether or not the defendant is exempt as claimed by it. It is the well-settled law of this State a charity corporation is not liable either to a beneficiary of or a stranger to the charity for the negligence of its agents and servants, provided it is not negligent in the hiring or retention of such agents and servants whose negligence proximately causes the injuries; and that such corporation is liable to its employees and third persons for injuries inflicted by the negligence of its managers, officers, vice-principals and agents in the conduct of the institution. S. M. U. v. Clayton, supra, and St. Paul's Sanitarium v. Williamson, Tex.Civ.App., 164 S.W. 36, e. r. It seems it...