Miller v. Mohr

• Decision Date: 21 April 1939
• Docket Number: 27006,27007.
• Citation: 89 P.2d 807,198 Wash. 619
• Parties: MILLER et ux. v. MOHR et al. SAME v. SISTERS OF ST. FRANCES et al.
• Court: Washington Supreme Court

89 P.2d 807

198 Wash. 619

MILLER et ux. v. MOHR et al.

SAME v. SISTERS OF ST. FRANCES et al.

Nos. 27006, 27007.

Supreme Court of Washington, En Banc.

April 21, 1939

Action by Louis Henry Miller and Bertha Miller against Louise Mohr and the Sisters of St. Frances, and action by Louis Henry Miller, Jr., by Louis Henry Miller, Sr., his guardian ad litem, against the same defendants, for damages resulting from injuries to child because of allegedly negligent care in hospital. The cases were consolidated for trial and on appeal. From verdicts and judgments for plaintiffs defendants appeal.

Reversed and remanded.

BLAKE C.J., and MAIN and MILLARD, JJ., dissenting.

Appeal from Superior Court, Pierce County; Ernest M. Card, judge.

Guy E Kelly and Robert E. Evans, both of Tacoma, for appellants.

Ralph Woods, of Tacoma, and Sam A. Wright, of Seattle, for respondents.

BEALS Justice.

This is an appeal from verdicts and judgments rendered against the Sisters of St. Frances and Louise Mohr, in favor of an infant, Louis Henry Miller, Jr., and in favor of the parents of that child.

This case has been argued once to a department of this court and twice to the court sitting en banc. Just prior to the last hearing, respondents filed a motion to strike the statement of facts. This motion is without merit, and the same is denied.

In the second amended complaint in cause No. 27006, Louis Henry Miller and his wife, Bertha Miller, brought an action against defendants, alleging that the Sisters of St. Frances is a corporation, organized under the laws of this state; that this corporation conducts, for profit, a hospital in the city of Tacoma, known as St. Joseph's hospital; that this hospital is conducted as a business enterprise, and a fee is charged to those who enter the hospital for treatment; and that in return for the payment of such fee, the corporation represents and holds out to the public that it will furnish the necessary hospital treatment in a skillful and proper manner, through agents who have been selected in a careful and prudent manner by the officers of the corporation.

It was further alleged that on September 11, 1932, Bertha Miller, at the request of plaintiffs, was admitted to the above mentioned hospital for confinement, upon the payment of the initial admission fee of $32.50; that September 12, 1932, there was born to respondent a strong, healthy male child, thereafter named Louis Henry Miller, Jr.; and that at all times mentioned in this complaint, the child was in the sole care of defendant corporation.

It was averred that defendant Louise Mohr was a student nurse in the employ of the corporation, and was a single person at the time the injuries hereinafter referred to were sustained.

It was pleaded that when the child was five days old, it contracted a skin disease known as impetigo; that, the child's mother being unable to care for him, it became and was the duty of defendant corporation to care for him and to use reasonable care in the selection and retention of a competent nurse; that it failed and neglected to provide a competent nurse to care for the child at the time the injuries in question were sustained, but furnished an incompetent and unskilled student nurse, defendant Louise Mohr; that the nurse had little or no training in the care of infants, and at the time of the injuries was so worn out, tired, sleepy and highly nervous that she was not in a fit condition to care for plaintiffs' child; and that the corporation knew, or by the exercise of reasonable care and diligence should have known, that the nurse was incompetent and not in proper condition to care for the child.

It was also averred that September 21, 1932, while the child was under the sole care of defendants, its head was negligently and carelessly permitted to come in contact with some hot object unknown to plaintiffs, causing the child's head to be seared black and its scalp and skull to be burned to the brain, resulting in a necrosis of the skull; that at one place in the region of the anterior fontanel a hole two inches in diameter was burned, at another place to the left of the posterior fontanel a hole was burned three-fourths of an inch in diameter, and at a third place on the left frontal bone of the child's head there was a burn one-half to three-fourths of an inch in diameter; that these injuries are permanent, and have left the child in such a condition that he requires the constant attention of plaintiffs or of a nurse; that the child will never be able to render that service to plaintiffs which the ordinary child renders towards its parents; and that plaintiffs have incurred doctors' bills in treating the child's injuries. Plaintiffs prayed for judgment for damages against defendants.

Defendants demurred separately to this second amended complaint, and these demurrers were overruled. Defendants then answered, denying generally the allegations of the complaint, and set up an affirmative defense, alleging that the Sisters of St. Frances is a charitable corporation, organized under the laws of this state; that the mayor of Tacoma and the chairman of the board of county commissioners of Pierce county are ex officio members of the board of trustees of defendant corporation; that the corporation owns or is engaged in the conduct of a hospital in Tacoma, known as St. Joseph's hospital, and has owned and been engaged in the conduct of that hospital for over forty years.

Defendants further alleged that the Sisters of St. Frances is a charitable corporation; that it has no capital stock, and is not operating for profit; that no dividends or profits have ever been paid or can be paid to anyone from the operation of the hospital; that its entire earnings are used solely for charitable purposes; that it has at all times rendered necessary services and care without being paid therefor to those unable to pay for the same, setting forth the number of charitable patients cared for, and the reasonable value of the services rendered to such patients, for the years 1931 to 1935, inclusive.

It was further averred that in connection with the ownership and operation of St. Joseph's hospital, the Sisters of St. Frances corporation conducts a training school for nurses, where nurses receive professional education and training; that among the young women who were engaged in taking such nurses' course of training on September 12, 1932, was defendant Louise Mohr; that she completed her course, graduated from the training school, and was duly licensed to practice as a professional nurse by the state of Washington.

Defendant Sisters of St. Frances also alleged that the corporation supplies as nurses for patients in the hospital student nurses in the hospital training school, without additional expense to the patient; that all patients are given the right to procure graduate nurses of their own selection, at their own expense; and that plaintiffs were advised by defendant corporation of thses arrangements, plaintiffs electing to accept the services of the student nurses, and failing to procure a graduate nurse.

It was alleged that defendant corporation maintains in St. Joseph's hospital what is known as a nursery, wherein all the babies were kept; that Louis Henry Miller, Jr., contracted impetigo, which required that he be removed from the nursery and isolated, to protect the other babies from contracting the disease.

It was also alleged that Louise Mohr, at the time of the accident, had been in professional training as a nurse for nearly two years; that she had received special training in the care of infants; and that she had been given actual charge of the nursery where all the babies were kept, for approximately two months immediately preceding the injury to Louis Henry Miller, Jr.

It was further pleaded that Louise Mohr placed the infant near the center of an adult size bed, in the room to which he had been isolated; that Louise Mohr was, in the performance of her duties, obliged to leave the room for a short period of time, and that when she returned, the infant had moved himself to such a position that his head was against a radiator which stood adjacent to the bed on which the child was lying, and he thereby received certain burns.

Finally, it was alleged that Louise Mohr was a careful, efficient and capable nurse, experienced in the care of babies, and was known to be such by the officers of the corporation at the time she was selected to care for the Miller child; that she used due care in placing the infant upon the bed; that she could not have reasonably anticipated that any injury would result therefrom; that the injuries received by the child were purely accidental, and were not the result of any negligence or carelessness on the part of Louise Mohr or defendant corporation. Defendants prayed that plaintiffs take nothing, and that the second amended complaint be dismissed.

Plaintiffs replied, denying all of the material allegations of defendants' answer, and specifically denied that the Sisters of St. Frances is a charitable corporation, denied that the hospital is not operated for profit, and denied that the earnings were used chiefly for charitable purposes.

In cause No. 27007, an action was instituted by Louis Henry Miller, Jr., through Louis Henry Miller, Sr., guardian ad litem, against defendants, to recover damages for the minor's injuries. In this complaint, it was alleged that plaintiff Louis Henry Miller, Jr., is under the age of twenty-one years, and that August 19, 1935, Louis Henry Miller, Sr., was appointed guardian ad litem, for the purpose of bringing this action. Save as above indicated and the amount of damages prayed for, the remaining allegations of this complaint are in substance the...