Paterlini v. Memorial Hospital Ass'n of Monongahela City, Pa.

• Decision Date: 21 January 1918
• Docket Number: 2293.
• Citation: 247 F. 639
• Parties: PATERLINI et ux. v. MEMORIAL HOSPITAL ASS'N OF MONONGAHELA CITY, PA., et al.
• Court: U.S. Court of Appeals — Third Circuit

247 F. 639

PATERLINI et ux. v. MEMORIAL HOSPITAL ASS'N OF MONONGAHELA CITY, PA., et al.

No. 2293.

United States Court of Appeals, Third Circuit.

January 21, 1918

Arthur O. Fording, of Pittsburgh, Pa., for plaintiffs in error.

Charles G. McIlvain and McIlvain, Murphy, Day & Witherspoon, all of Pittsburgh, Pa., Carl E. Gibson, of Monongahela, Pa., and Andrew M. Linn, of Washington, Pa., for defendants in error.

Before BUFFINGTON, McPHERSON, and WOOLLEY, Circuit Judges.

BUFFINGTON Circuit Judge.

This suit was brought against an incorporated hospital and against its directors individually, by the parents of a boy who died while a patient in such hospital, to recover damages for negligence alleged to have caused his death. The jurisdiction of the court is based on diversity of citizenship, the plaintiffs being citizens of Italy, and the defendants citizens of Pennsylvania. The court below sustained a demurrer and dismissed the suit. On writ of error this court (see 232 F. 359, 146 C.C.A. 407) reversed the case; the court saying:

'In view of the allegations of the pleadings and of the fact that the questions involved in this case so closely concern the administration of charitable foundations in Pennsylvania, we are unwilling to pass upon the liability of such institutions and their trustees for negligence until by the proofs, rather than from the uncertain averments of pleadings, we are precisely informed of the facts upon which our judgment should rest. Without therefore, expressing in any way any view upon these questions, we deem it the exercise of wise discretion to overrule the demurrer and allow the proofs to be placed on record before the case is reviewed by this court. Accordingly we will reverse the judgment below, and remand the cause, with directions to overrule the demurrer, without prejudice to later raising the questions raised by it, and that the cause proceed in due course.'

Subsequently the case was tried, proofs on both sides taken, and the court directed a verdict for the defendants. Thereupon the plaintiffs sued out this writ. Consequently we now have the full proofs, and are thereby enabled to dispose of the important questions here involved to much better advantage than when the case was here before. As presented by pleadings and proofs, the right of the plaintiffs to recover takes three aspects: First, the personal liability of the directors arising from any negligence on their part; second, the liability of the corporate defendant, the Hospital, arising from the negligence of its officers; and, third, the liability of the Hospital for the negligence of a nurse.

Without reciting all the proofs, we may say they tend to show the defendant hospital was chartered by the state of Pennsylvania, and was located in a bituminous coal district, where mining accidents were of frequent occurrence and required prompt attention. In the operating room there were constantly kept two one-gallon bottles-- one containing bichloride, the other mag. salts--which were necessary and much used antiseptics in surgical work. Each of these bottles was plainly labeled; the bichloride being also marked 'Bichloride, Poison.' The surgical room was entirely separate from the ward section, was at some distance, and nurses in the ward section were forbidden to enter it.

Such being the situation, the proofs show that about 6:30 on the morning of the accident a ward student nurse had occasion to administer a cathartic of epsom salts to the plaintiffs' son, a patient in her ward. Going to the cupboard where the cathartics were kept, she got castor oil, but, finding no salts in the customary place, she, in violation of the rules, went across two corridors to the dressing room, which connected with the surgical room. Her description of what followed, after there finding the bottles of antiseptics referred to above, was:

'Q. Those bottles you say were large gallon bottles? A. I think they were gallon bottles. Q. Were they labeled so that you could read them? A. Yes, sir. * * * Q. In making your observations in this room that morning, did you read on this bottle the label, 'Bichloride'? A. Yes, sir; I read the bottles. Q. You saw on another bottle 'Solution of Salts'-- epsom salts? A.

Yes. Q. You say, when you found a bottle of epsom salts in the operating room, you put your tray on a table; and what was the position of the table which you placed your tray on with reference to the location of the bottles? A. It was about like that (indicating) to the left, and I just turned that way. Q. You turned about half way around? A. Yes, sir. Q. And in reaching down in that manner, half turned, your hand fell upon the bottle containing bichloride, instead of the solution of epsom salts? A. That is the only way I can remember making the mistake. I had read it first, and then it seems, when I went to get my glass, I reached at the same time for the bottle, and picked up the wrong bottle. * * * Q. Was there anything about that bottle beside the label-- I am referring now to the bottle of bichloride-- was there anything about that bottle, beside the label, to indicate that it contained poison? A. They were labeled poison. Q. It was labeled poison? A. That is as well as I can remember what it was labeled.'

Bearing on what this student nurse should have done when she found there were no salts in the ward cupboard, the uncontradicted proof was:

'Q. What was the duty of the nurses when they discovered that 'mag.' salts was not in the cupboard where they went to obtain it? A. She should have referred to the graduate nurse. Q. Have you ever before, in your experience, had a nurse go into another department of a hospital to hunt medicine? Was there any such authority on the part of a nurse to do so? A. No; she should not go to another department without permission. Q. Is it not against the well-known rules and regulations of your hospital for her to have done so? A. Yes, sir.'

The proofs further showed the executive work of the hospital was in charge of experienced and capable people, and there is an entire absence of any proof showing an act of commission or omission on the part of the directors, or on the part of any executive officer of the hospital.

In the absence of such proof, it is clear that the court was justified, and indeed it was its duty, to charge the jury that there was no proof that justified a verdict against the directors personally or against the hospital for negligence on the part of its executive officers. It follows, therefore, that the only ground on which the hospital could be held was for the negligence of the student nurse, and under the proofs that phase of the case resolves itself into the question whether the hospital is responsible for the negligent act of a nurse done without the knowledge of the hospital, outside the scope of her duty, and in violation of the rules of the hospital.

This hospital was chartered by the state of Pennsylvania under that section of its general incorporation act of April 29, 1874 (P.L. 73), which provides for corporations not for profit and for 'the support of any benevolent, charitable * * * undertaking.'

The corporation being created by the state of Pennsylvania, being supported by charitable contributions of its citizens and by appropriations by that state, and the charitable uses and trusts which such a corporation administers being subjects over which the courts of that state are given statutory jurisdiction, the case would seem especially one where a federal court would from comity, if for no other reason incline to follow the settled law of Pennsylvania if such law is found to exist. In the able opinion of Judge Gray, in Snare & Triest Co. v. Friedman, reported at 169 F. 1, 94 C.C.A. 369, 40 L.R.A.(N.S.) (N.S.) 367, this court, while noting its wide range of independent judgment, recognizes that in cases based on diversity of citizenship, a federal...