Nicholas v. Evangelical Deaconess Home & Hospital

• Decision Date: 02 March 1920
• Parties: AMELIA NICHOLAS, Appellant, v. EVANGELICAL DEACONESS HOME & HOSPITAL
• Court: Missouri Supreme Court

219 S.W. 643

281 Mo. 182

AMELIA NICHOLAS, Appellant, v. EVANGELICAL DEACONESS HOME & HOSPITAL

Supreme Court of Missouri, First Division

March 2, 1920

Appeal from St. Louis City Circuit Court. -- Hon. Thomas C Hennings, Judge.

Affirmed.

Jourdan Rassieur & Pierce for appellant.

(1) Where one is permitted, temporarily in the absence of the regular servant or agent, to take the place and charge of matters committed to such absent agent or servant, he has for the time being the same authority as if he were the regular agent or servant. 21 R. C. L. sec. 34, pp. 855-856; Storage Co. v. Cox, 74 Ohio St. 284, 78 N.E. 371. (2) The owner of a grocery store or retail business (or a drug store, as at bar) placing another in charge thereof is held to have authorized such person so placed in charge to make sales and dispense the goods (or drugs) in the usual course of business. Henson v. Keet & Rountree Mer Co., 48 Mo.App. 214. (3) In determining whether plaintiff should be non-suited the testimony must be viewed in the most favorable aspect for plaintiff. This deprives the defendant of the right to urge on the court that it assume a fact or facts to exist upon which there is a complete absence of evidence.

Watts, Gentry & Lee for respondent.

(1) The judgment should be affirmed, because the relation of master and servant was not shown to exist between the respondent and any person who committed any negligent act which resulted in injury to the plaintiff. The burden was upon the appellant to make that proof, and, the appellant having wholly failed to do so, the judgment should be affirmed, regardless of the question as to whether or not respondent is exempt from damages for its servants' acts because it is a charitable institution. At best, plaintiff's evidence leaves it in doubt and uncertainty whether the injury resulted from negligence of an employee or that of a person who was not an employee. The cause being left to speculation, a demurrer to the evidence was properly sustained. Goransson v. Ritter Co., 186 Mo. 300; Kane v. Railroad, 251 Mo. 30; Caenefielt v. Bush, 198 Mo.App. 491. (2) The respondent was shown by undisputed documentary evidence, to be a charitable institution, and, under the law of this State, and under the great weight of authority in other states, and in England, a charitable hospitable is not liable for the torts of its servants committed in the treatment of patients. Therefore, even if the plaintiff had been injured by a negligent act of some servant of the respondent, while engaged in the line of his or her duty, there would still be no right of recovery. The fact that many patients paid for the privileges of the hospital, or the fact that in one year some surplus was left after the expenses were paid, does not change the institution from a charitable one to a business corporation. Adams v. University Hospital, 122 Mo.App. 675; Whittaker v. St. Luke's Hospital, 137 Mo.App. 116; Powers v. Mass. Homeopathic Hospital, 109 F. 294; McDonald v. Mass. General Hospital, 21 Am. Rep. 539; Benton v. Boston City Hospital, 140 Mass. 13, 54 Am. Rep. 431; Downs v. Harper Hospital, 101 Mich. 555, 45 Am. St. 427; Hospital v. Ross, 12 Clark & F. 507; Gooch v. Association, 109 Mass. 508; Cunningham v. The Sheltering Arms, 119 N.Y.S. 1033; Collins v. New York Post Grad. Med. Hospital, 89 N.Y.S. 106; Wilson v. Brooklyn Homeopathic Hospital, 89 N.Y.S. 619; Pephe v. Grace, 130 Mich. 493; Parks v. N.W. University, 121 Ill.App. 512, 218 Ill. 381, 2 L. R. A. (N. S.) 556; Hearns v. Waterbury Hospital, 66 Conn. 98; Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 52 L. R. A. (N. S.) 505; People ex rel. v. Society of New York Hospital v. Purdy, 58 Hun 386, 12 N.Y.S. 307, 126 N.Y. 679; Hodern v. Salvation Army, 139 Am. St. 899; Taylor v. Protestant Hospital Assn., 85 Ohio St. 90, 30 L. R. A. (N. S.) 427; Hill v. Tualatin Academy, 61 Ore. 190; Duncan v. Nebraska Sanitarium Benv. Assn., 41 L. R. A. (N. S.) 973.

SMALL, C. Brown and Ragland, CC., concur.

OPINION

SMALL, C.

Appeal from the Circuit Court of the City of St. Louis. 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 time 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 2nd 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 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, 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, Chapter 33, Revised Statutes of Missouri 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, or 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, Illinois.

The day nurse, Miss Francis, testified that on the day plaintiff was injured, she was on duty, her hours being from seven in the morning until seven in the evening, and Miss Schmidt's from seven in the evening until seven 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...