Mills v. Soc'y of the New York Hosp.

• Decision Date: 03 March 1936
• Citation: 1 N.E.2d 346,270 N.Y. 594
• Parties: Gabrielle H. MILLS, as Administratrix of the Estate of Frederick L. Mills, Deceased, Appellant, v. The SOCIETY OF THE NEW YORK HOSPITAL, Respondent.
• Court: New York Court of Appeals Court of Appeals

270 N.Y. 594

1 N.E.2d 346

Gabrielle H. MILLS, as Administratrix of the Estate of Frederick L. Mills, Deceased, Appellant,

v.The SOCIETY OF THE NEW YORK HOSPITAL, Respondent.

Court of Appeals of New York.

March 3, 1936.

Appeal from a judgment, entered November 24, 1934, upon an order of the Appellate Division of the Supreme Court in the Second Judicial Department (242 App.Div. 245, 274 N.Y.S. 233), which reversed on the law that part of an amended judgment in favor of plaintiff upon the second cause of action alleged in the complaint and dismissed the complaint as to such cause of action. The action was brought by plaintiff to recover for the death of her intestate who killed himself on the public highway while a patient at the Bloomingdale Hospital for Mental Diseases, a department of the defendant. The deceased, at the time of his death, was one of a group of patients at the hospital who were being taken for a walk under the charge and supervision of an employee of defendant. The complaint stated two causes of action, the first in contract and the second in tort, both based upon the theory that the failure of defendant to exercise due care in regard to decedent was the cause of his death. The defendant, answering the first cause of action, denied the existence of any contract to exercise due care or any breach thereof; and answering the second cause of action, denied that any negligence on its part had caused the death of decedent. As a defense to both causes of action, defendant alleged that it was a charitable corporation; that the deceased was a beneficiary of its charity at the time of his death; and that all the servants and agents of defendant, including those who had anything to do with the deceased, were carefully selected and skillful and competent in the performance of their respective duties. The jury, in answer to special questions submitted to it by the trial court, found that defendant had not breached the contract alleged in the first cause of action, but did find that defendant had been negligent in sending the deceased, in company with four other patients and in charge of one physical aide, for a walk upon the public highway, and that this negligence was the proximate cause of his death. Upon the coming in of these findings, the trial court dismissed the first cause of action, but directed a verdict in favor of plaintiff upon the second cause of action upon which judgment was entered. The plaintiff did not appeal...