Meek v. City of Loveland

• Decision Date: 18 March 1929
• Docket Number: 11958.
• Citation: 85 Colo. 346,276 P. 30
• Parties: MEEK v. CITY OF LOVELAND et al.
• Court: Colorado Supreme Court

276 P. 30

85 Colo. 346

MEEK v. CITY OF LOVELAND et al.

No. 11958.

Supreme Court of Colorado, En Banc.

March 18, 1929

Error to District Court, Larimer County; Robert G. Smith, Judge.

Action by Frank D. Meek against the City of Loveland and others. Judgment for defendants, and plaintiff brings error.

Affirmed in part, and in part reversed and remanded with directions.

John T. Bottom, of Denver, for plaintiff in error.

Reid Williams, of Loveland, Paul W. Lee, Geo. H Shaw, and Wm. A. Bryans, 3rd, all of Ft. Collins, for defendants in error City of Loveland, Wright, and Williamson.

Gillette & Clark, of Denver, and Thomas Y. Bradshaw, of Ft. Collins for defendant in error Taylor.

BUTLER J.

Frank D. Meek brought this action for damages against the city of Loveland; George W. Foster, its mayor; Ross E. Wright, its city physician; James M. Williamson, its chief of police Albert E. Snook, one of its police officers; and T. C. Taylor, the county physician of Larimer county. Before the trial Foster and Snook died, and the case was dismissed as to them.

At the county poor farm, or hospital, defendant Taylor amputated the plaintiff's left leg about nine inches above the knee. The plaintiff alleges that the operation was negligently performed, and that the plaintiff was negligently treated by defendant Taylor after the operation. The plaintiff alleges that the defendants conspired 'to imprison the plaintiff in the county poor farm upon the pretext that he had violated the law'; that this was done for the purpose of concealing certain acts of the defendants and to protect the city from liability for such acts; and that the negligent amputation was the result of the plaintiff's being so imprisoned. The acts thus sought to be concealed are said to be the wrongful shooting of the plaintiff by Snook, who, it is alleged, was employed by the city as a police officer with knowledge of his unfitness for the position; the incarceration of the plaintiff in a cold, damp, dirty, and unsanitary room in the Loveland city jail; and neglecting the plaintiff both before and after his removal from the jail. For these and other acts and omissions prior to the surgical operation the plaintiff seeks no recovery in the third cause of action; he alleges them merely for the purpose of showing why the defendants caused the removal of the plaintiff to the county poor farm, or hospital. In his brief, plaintiff's counsel says that the gravamen of the offense charged in the complaint is malpractice by the defendant Taylor during the time that Meek was under his charge.

The trial court sustained the city's general demurrer to the complaint and dismissed the case as to the city. The separate general demurrers of the other defendants were overruled. At the trial the plaintiff moved to reinstate the city of Loveland as a defendant, which motion was denied. At the close of the plaintiff's evidence, the court granted a nonsuit as to each defendant remaining in the case.

The plaintiff testified that on the evening of February 5, 1922, he had been drinking; that on his way home, about 9 or 9:30 o'clock, feeling sick at the stomach, he stepped into an alley and threw up; that he was leaning on a ledge that goes across the door of a building; that his 'elbow slipped off and went through it; that it was no burglary or anything like that at all'; that the officer came along and stopped him, 'hollered at' him, and 'wanted to know what'--here the witness was interrupted. He testified further that the officer struck him on the head, that the plaintiff ran, and that the officer shot him in the knee. No criminal charge was filed against the plaintiff until March 30, 1922, the day before he left the county poor farm, or hospital. The charges were burglary, malicious mischief, and possessing intoxicating liquor. He gave his recognizance in each case, but the plaintiff was never brought to trial on any of the charges.

1. The action of the trial court in sustaining the city's demurrer and in refusing to reinstate the city as a defendant was right. Assuming that the removal of the plaintiff to the county poor farm, or hospital, was in pursuance of a conspiracy participated in by its mayor, its city physician, its chief of police, and one of its police officers, the city cannot be held liable for the damages sustained by the plaintiff by reason of the county physician's malpractice, if any there was.

2. There is no averment or evidence that the defendants other than defendant Taylor were actually present, participating in the surgical operation. To charge them, the plaintiff relies upon the following facts disclosed by the evidence: The plaintiff was taken from the jail to the city hospital, where defendant Wright removed the bullet from the leg. The plaintiff was then taken to his home. He testified that a few days later, 'Dr. Wright and Chief Williamson came and told me that the sheriff was out there and that I had to go. My mother and brother were there at the time, but I did not see any sheriff or deputy. I argued with them for quite a while because I wanted to go to the hospital at Loveland, but they said I couldn't do that but I got to go with them, and Dr. Wright spoke up, and he says, 'I won't treat you and I don't know anybody in town that will treat you.' I says, 'I don't want to go to the hospital at Collins, I want Dr. McFadden to doctor me,' and he says, 'He won't treat you.' Dr. Wright said I couldn't go to the Loveland hospital, and that nobody there would treat me. Chief Williamson was present. My mother spoke up and said that we had the money to pay our own doctor bill and that I ought to be able to go where I wanted to. Dr. Wright said that if she wanted to pay any money she could give it to them at the county poor farm. Dr. Wright and Chief Williamson said if I didn't get on the stretcher then, they were going to put me on it. I wouldn't get on the stretcher. Dr. Wright and Chief Williamson put me on the stretcher. I do not remember whether the man from the poor farm helped or not. * * * I reached the poor farm about noon.'

The plaintiff's mother testified as follows: 'I was present the day they took the plaintiff to the county poor farm. When they said they were going to take him, I asked them if he couldn't stay at home, or else go to the Loveland hospital, and Dr. Wright said, 'No, I won't treat him, nor no other doctor here will treat him.' They took my son from the house on a stretcher. My son objected to being taken to the county hospital, or county poor farm. I objected. I told them I had the money to pay at the city hospital if they would take him there. I said this to Dr. Wright and Mr. Williamson. Dr. Wright said that Dr. Taylor was a good surgeon and they would use an X-ray over there on him; and I said, 'Well, I don't want him to go there any way,' and I said, 'I can pay for it over here; I have got the money and I can pay for it.' Dr. Wright said, 'You can pay over there, too'; and so did Mr. Williamson; and Dr. Wright said, 'Mrs. Meek, I guess I know more about this than you do. I would rather be shot through the lungs.' And Dr. Wright and some other man carried my son out.'

The plaintiff's brother testified: 'I was at my mother's home on the morning they removed the plaintiff to the county poor farm. Mr. Mills of Fort Collins and Chief Williamson and Dr. Wright were there. Chief Williamson said that the plaintiff had to go over to Fort Collins to the hospital as the sheriff was after him. My brother did not want to go. He told them several times that he wanted to go to the Loveland hospital; so did my mother; and I even offered to take him down there myself. Dr. Wright refused to treat him there; he said he wouldn't treat him there, nor would any one else in Loveland. They laid my brother on a stretcher and took him out of the house and out in a truck.'

According to this testimony, which, for the purpose of the present proceeding, we are bound to accept as true, City Physician Wright and Chief of Police Williamson, acting together assumed custody of the plaintiff, who was seriously wounded, and against whom no criminal charges had been filed, and caused him to be removed, forcibly and against the protest of the plaintiff and his mother, from his home to the county poor farm,...