Nicholas v. Evangelical Deaconess Home and Hospital

• Decision Date: 02 March 1920
• Docket Number: No. 19788.,19788.
• Citation: 219 S.W. 643,281 Mo. 182
• Parties: NICHOLAS v. EVANGELICAL DEACONESS HOME AND HOSPITAL.
• Court: Missouri Supreme Court

219 S.W. 643

281 Mo. 182

NICHOLAS v. EVANGELICAL DEACONESS HOME AND HOSPITAL.

No. 19788.

Supreme Court of Missouri, Division No. 1.

March 2, 1920.

Appeal from St. Louis Circuit Court; Thomas C. Hennings, Judge.

Action by Amelia Nicholas against the Evangelical Deaconess Home and Hospital. From a judgment for defendant, plaintiff appeals. Affirmed.

Jourdan, Rassieur & Pierce, of St. Louis, for appellant.

Watts, Gentry & Lee, of St. Louis, for respondent.

SMALL, C. I.

This is a suit for personal injuries sustained by the plaintiff from having received a massage with carbolic acid, instead of alcohol, at the hospital of the defendant. The petition is as follows:

"Plaintiff states that defendant is, and at all of the times herein stated was, a corporation existing under the laws of the state of Missouri, located and doing business in the city of St. Louis, and maintaining and operating a hospital for the care and treatment of the sick. Plaintiff states that heretofore, to wit, during January and February, 1914, she was sick and a patient at said hospital of defendant, and that part of the treatment administered to her consisted of daily alcohol rubbings or massages by one of the attending nurses. And plaintiff states that on, to wit, the 2d day of February, 1914, one of said nurses, desiring an additional supply of alcohol, applied to the proper representative and attendant of defendant therefor, said representative being one of the internes at defendant's said hospital, and that such representative carelessly and negligently filled up the bottle of the nurse with carbolic acid, instead of alcohol; that, owing to the similarity in appearance, such substitution was not discovered by such nurse, and that thereafter the nurse undertook to give plaintiff the usual alcohol rub or massage, and in consequence of the action aforesaid of defendant, through its said representative, in filling the bottle used by the nurse with carbolic acid, instead of with alcohol, a large quantity of the carbolic acid was poured on and against the back of this plaintiff, severely burning and injuring and wounding her, and causing intense physical pain and mental anguish and suffering. Plaintiff states that she still suffers the effects of said carbolic acid burns and wounds, and that in all probability she will continue to suffer therefrom permanently hereafter; that by reason of the premises she has been damaged in the sum of ten thousand dollars ($10,000.00), for which, with costs, she prays judgment against defendant."

The answer was as follows:

"Comes now the defendant, the Deaconess Hospital, and for answer to the plaintiff's petition herein says: That it, said defendant, is an eleemosynary corporation, organized and doing business under and by virtue of the laws of the state of Missouri, and created and existing particularly under and by virtue of the provisions of the statute as shown in article 10 of chapter 33 of the Revised Statutes of Missouri of 1909, entitled `Benevolent, Religious, Scientific, Educational and Miscellaneous Associations'; that said defendant corporation is a benevolent and charitable association or corporation, and is not incorporated for profit; and that by reason of the premises defendant is not liable for the alleged or pretended injuries described in the plaintiff's petition. And said defendant, for further answer, denies each and every allegation in said petition contained. Wherefore said defendant, having fully answered, asks to be dismissed with its costs in this behalf most wrongfully sustained."

The reply was a general denial.

The plaintiff's testimony tended to show the following state of facts:

The plaintiff, a married lady, living in St. Louis, being ill in January, 1914, was attended by Dr. Francis Reder as her physician. At his suggestion, on January 21, 1914, she went to the hospital of the defendant, and remained there until February 28, 1914, and was there attended by her said physician. She employed and paid two special nurses, Beatrice Francis by day, and Anna Schmidt by night. For her room and board at the hospital she paid defendant $15 a week. The hospital had a pharmacy, at which she purchased bandages, medicines, and alcohol, for which she paid. She paid each of her nurses $25 per week, and paid the hospital $7 a week for the board of each nurse. She also paid Dr. Reder, who attended her. She received no free treatment, medicines, nor attention whatever; but, as far as the evidence shows, she paid the full regular price for all she received at the hospital. About midnight, February 2, 1914, her night nurse, Miss Schmidt, undertook to massage the plaintiff's back with alcohol, as she had done before, in pursuance of instructions from Dr. Reder. The nurse poured something into her hand out of a bottle and applied it to plaintiff's bare back and as the nurse did so the plaintiff gave out a scream, and the nurse said: "My God ! It is carbolic acid I have used." The plaintiff was severely burned by the acid. The nurse's hands were also burned.

In addition to the expenses already mentioned, the plaintiff paid the hospital for the use of the operating room for two operations performed upon her, $5 for the first operation, and $10 for the second. The night nurse, Miss Schmidt, did not testify, nor was her deposition taken. At the time of the trial she resided at Cairo, Ill.

The day nurse, Miss Francis, testified: That on the day plaintiff was injured she was on duty, her hours being from 7 in the morning until 7 in the evening, and Miss Schmidt's from 7 in the evening until 7 in the morning. That she used alcohol for "rubs" which she gave the plaintiff. That she got the alcohol at the drug department at the hospital in an eight-ounce bottle marked "Alcohol." On February 2, 1914, the day plaintiff was burned, she took this bottle to the hospital pharmacy to get it filled with alcohol. The druggist was off duty and she testifies:

"Dr. Young, the interne or house physician, had charge of the drugs. I asked him for alcohol, and handed him the bottle. He filled it with something which had the same color as alcohol. It was light in appearance. I took it to the plaintiff's room and put it on the dresser in its usual place. I did all in the usual way. Alcohol and carbolic acid resemble each other very much in looks. When I left duty that evening, Mrs. Nicholas had no burns on her person. I saw her again the next morning between 7 and 8 o'clock, and her whole back was burned by carbolic acid. I could tell that by the color of the burns and the odor of what was in the bottle. I did not know at the time that Dr. Young had put carbolic acid in the bottle."

For defendant, Dr. Francis Reder testified: That plaintiff's burns were superficial, except near the lower part of the spine, where they were deeper than superficial. He spoke to Sister Magdalene about the nurses for the plaintiff, and she assigned Miss Francis and Miss. Schmidt. He prescribed alcohol rubs, and not carbolic acid. Plaintiff was burned with carbolic acid.

Defendant was incorporated by a decree of the circuit court of the city of St. Louis March 18, 1891, in which the court adjudged that its articles of agreement "come properly within the purview of article 10 of chapter 42, H. S. Mo. 1889," relating to benevolent, religious, fraternal, beneficial, etc., associations. The articles of association of defendant, which were executed by 70 citizens of St. Louis, together with the decree of incorporation, were introduced in evidence by the defendant. The object and membership of the association are therein stated, as follows:

"Article II. Object.—It is the object of this association: (1) To nurse the sick and to exercise care for poor and aged by deaconesses; e., theoretically and practically trained Christian nurses. (2) To found and support a deaconess home, where deaconesses shall be educated and trained, and from which they shall be sent as nurses, and where sick and aged, under circumstances provided by by-laws, may be admitted and receive attendance.

"Article III. Membership.—(1) Every Protestant Christian, whose belief is in conformity with the Creed of the Apostles, and who agrees to fulfill the regulations of this association, is welcome as a member. (2) The duties of members are: (a) To attend the meetings of the association as regularly as possible. (b) To be active for the growth and promulgation of the association. (c) To pay in advance an annual fee of at least two dollars. (3) Any person, being proposed in writing by a member, may become a member of the association, if admitted by a vote of a majority of the board of directors."

Among other things, article VI provided for annual meetings and stated:

"This meeting shall be of a religious character, in which deaconess work shall be set forth by one or more speeches. (4) Every meeting shall be opened and dismissed with prayer, and conducted in a manner corresponding to the Christian charity work of this association."

Article IV provided:

"The management of this association shall be by a board of directors consisting of twelve persons," four ministers, four laymen, and four ladies, who shall have been members of the association at least one year."

Article V provided for a president, vice president, recording secretary, secretary of finance, and a treasurer. The secretary of finance was required to collect the dues of the members and turn over the money to the treasurer. The treasurer was made custodian of the association's funds, and was required to execute bond, at the option of the directors, that he—

"will faithfully fulfill the duties of his office and account for and pay over, as directed by the board of directors, all funds which may come into his hands. He shall keep an account of receipts and expenditures, and make payments only when orders for the same carry the joint signatures of the president and recording secretary, and at the termination...