Noel v. Menninger Foundation

• Citation: 175 Kan. 751,267 P.2d 934
• Decision Date: 06 March 1954
• Docket Number: No. 39185,39185
• Parties: NOEL v. MENNINGER FOUNDATION.
• Court: United States State Supreme Court of Kansas

Page 934

267 P.2d 934

175 Kan. 751

NOEL v. MENNINGER FOUNDATION.

No. 39185.

Supreme Court of Kansas.

March 6, 1954.

Syllabus by the Court.

1. Two or more events may combine and concur to produce a result and both be a proximate couse.

2. A cause is concurrent if it was a cause which was operative at the moment of injury and acted contemporaneously with another cause to produce an injury and was an efficient cause in the sense that without it the injury would not have occurred.

3. If two distinct causes are successive and unrelated in operation they cannot be concurrent, but if the intervening cause was foreseen or might reasonably have been foreseen by the first actor, his negligence may be considered the proximate cause, notwithstanding the intervening cause.

4. The declaration of public policy is primarily a legislative function though courts have authority to declare a public policy which already exists and to base its decisions upon that ground, but in absence of a legislative declaration before courts are justified in declaring existence of public policy it should be so thoroughly established as a state of public mind so united and so definite and fixed that its existence is not subject to any substantial doubt.

5. Fact that court may have at an early date in response to what appeared good as a matter of policy created immunity from wrongdoing is not a sound reason for continuing rule when under all legal theories rule is basically unsound, especially when reasons upon which rule was built no longer exist.

6. When the reason for the existence of a declared public policy no longer obtains, courts should without hesitation declare that such public policy no longer exists.

7. Emphasis of law generally is on liability for tort rather than immunity from wrongdoing.

8. Charitable institutions are liable for torts of their servants from which injury proximately results to a third person, whether stranger or patient, and whether the patient is a paying or nonpaying patient.

9. The cases of Nicholson v. Atchison, Topeka & Santa Fe Hospital Association, 97 Kan. 480, 155 P. 920, L.R.A.1916D, 1029; Davin v. Kansas Medical, Missionary & Benevolent Association, 103 Kan. 48, 172 P. 1002; Webb v. Vought, 127 Kan. 799, 275 P. 170; Ratliffe v. Wesley Hospital & Nurses Training School, 135 Kan. 306, 10 P.2d 859, and Leeper v. Salvation Army, 158 Kan. 396, 147 P.2d 702, insofar as they are inconsistent with the rule announced in paragraph 8 of the syllabus, are hereby overruled.

T. M. Lillard, Topeka, argued the cause, and O. B. Eidson, Philip H. Lewis, James W. Porter, and Charles S. Fisher, Jr., Topeka, were with him on the briefs for appellant.

Ralph W. Oman, Topeka, argued the cause, and James A. McClure, Robert L. Webb, Philip E. Buzick, Robert A. McClure, and James D. Waugh, Topeka, were with him on the briefs for appellee.

WERTZ, Justice.

This an appeal from an order of the trial court sustaining a demurrer of the defendant, The Menninger Foundation (appellee), to the amended petition of plaintiff, William B. Noel (appellant), in a suit brought to recover damages for personal injuries alleged to have been caused by the defendant's negligence.

The plaintiff, William B. Noel, a man 71 years of age and a mental patient of the Menninger hospital in Topeka at the time the cause of action arose, sued jointly The Menninger Foundation and its codefendant, Albert E. McCaig, for severe personal injuries sustained by the plaintiff when he was struck by a truck as he walked across West Sixth Street in Topeka in front of the Menninger hospital to go to the hospital office on the north side of the street.

The injuries to plaintiff were alleged to have been sustained through the joint negligence of Menninger, whose nurse or attendant in charge of plaintiff, had negligently permitted him to go upon the busy highway when his mental condition was such that he was unable to understand the dangers of so doing, and the negligence of the driver of the McCaig truck in carelessly striking the plaintiff with the truck driven at high speed and without keeping a proper lookout.

Defendant McCaig's demurrer to the amended petition in this action was overruled by the trial court, and this ruling of the trial court was sustained by this court on appeal. Noel v. McCaig, 174 Kan. 677, 258 P.2d 234. The allegations of the petition are well stated in the mentioned case and need not again be repeated in detail here, except that it was subsequently inserted in the amended petition that the Menninger Foundation was incorporated as a nonprofit organization. Supplementing these facts, it may be stated that paragraphs 8, 9 and 10 of the amended petition clearly set out the facts, circumstances and conditions which establish a relationship between the patient and the hospital. In these paragraphs it was alleged that the plaintiff, a patient of the type indicated, while standing at the very edge of this dangerous highway, told the attendant charged with the duty to care for and restrain him that he wanted to go across the highway to the other side where the hospital doctors were located. Being apprised of this desire on the part of the plaintiff, the attendant should have been alert to restrain the plaintiff from going on the highway. Expression of such a desire by such a patient is adequate warning that, unless restrained, there will be an attempt to carry out the desire. These allegations of the petition follow:

'The highway where the plaintiff and his attendant stood is known as West Sixth Street in the City of Topeka, and is on the route of Kansas State Highway No. 4, and U. S. Highway No. 40, and is a heavily traveled highway continuously used by fast moving traffic.

'11. In view of plaintiff's mental infirmities, which were well known to the defendant, The Menninger Foundation, the act of said defendant's agent, servant and employee in taking plaintiff to said place designated for the use of pedestrians in crossing the busy highway, and the further conduct of the said defendant's agent, servant and employee in failing to restrain the plaintiff after he had expressed a desire to cross the highway, were negligent acts and omissions of duty. Thereupon, the plaintiff, who was by reason of his mental infirmities (as was well known, or in the exercise of reasonable care and caution should have been well known to the defendant, The Menninger Foundation, and to its said agent, servant and employee), unable to understand and appreciate the fact that this was a heavily traveled highway where he would encounter the hazards and dangers of being struck by an automobile or truck, attempted to cross the highway at that point.

'12. After he started to cross the street, and as the plaintiff reached the traveled portion of the highway, he was struck and knocked to the ground by an eastbound truck of the defendant, McCaig Plumbing Company, which was being driven or operated by an agent, servant and employee of said plumbing company in and about the business of said company. The defendant plumbing company's truck was negligently operated in the following respects: * * *.

'13. As a result of being struck by the truck as above alleged, the plaintiff, who is a man 71 years of age, suffered a severe multiple fracture of the left femur (thigh bone), which required, after the setting of the fracture, additional surgery. * * *

'14. Plaintiff's said injuries were directly and proximately caused by the negligence of the defendant, The Menninger Foundation, as hereinbefore alleged, operating jointly and concurrently with the negligence of the defendant, Albert E. McCaig, d/b/a McCaig Plumbing Company, as hereinbefore alleged.'

Paragraph 16 of the amended petition itemized the damages sustained, and the prayer was for damages. The defendant demurred to this amended petition on the ground that it did not state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendant, and for the further reason the petition disclosed that The Menninger Foundation is a charitable organization providing diagnosis, care and treatment of patients including those whose funds are inadequate. The court sustained the demurrer generally, and it is from that ruling that plaintiff appeals.

Plaintiff first contends that the trial court erred in sustaining the demurrer to his amended petition, on the ground that it failed to state a cause of action against defendant for negligence. Defendant argues that the petition shows no negligence on its part, which was the proximate cause of any of the injuries sustained by plaintiff. The gist of defendant's argument is based upon the premise that the petition charged only that Menninger failed to restrain the plaintiff under circumstances which were not patently present nor sufficiently apparent to impose upon the defendant the necessity of restraint upon plaintiff just at and prior to the time he started across the street, and that at most the only thing that defendant did was to create a situation which supplied or created a condition, and that the proximate cause of the injury was the negligence of the driver of the McCaig Plumbing Company truck. We will not labor this point. A reading of the petition will disclose acts of negligence on the part of the defendant. Our decisions as well as other authorities recognize that two or more events may combine to produce a result and both be a proximate cause. It has been held that where injury to an innocent person would not have occurred except for the concurrent negligence of others, the subject of proximate cause need not be considered, and those whose acts united in producing the injury will be jointly and severally liable to the injured party. Rowell v. City of Wichita, 162 Kan. 294, 176 P.2d 590; Taggart v. Yellow Cab Co. of Wichita, 156 Kan. 88, 131 P.2d 924; Gibson v. Bodley, 156 Kan. 338, 133 P.2d 112. In Rowell v. City of Wichita, supra [162...