Phillipson v. Hunt

• Decision Date: 09 April 1929
• Citation: 129 Or. 242,276 P. 255
• Parties: PHILLIPSON v. HUNT.
• Court: Oregon Supreme Court

276 P. 255

129 Or. 242

PHILLIPSON v. HUNT.

Supreme Court of Oregon

April 9, 1929

Department 2.

Appeal from Circuit Court, Klamath County; A. L. Leavitt, Judge.

Action by Marie Phillipson against Warren Hunt. Verdict for defendant, and plaintiff appeals. Affirmed.

R. C. Bradshaw, of Portland (Joseph, Haney &amp Littlefield, of Portland, and W. M. Duncan, of Klamath Falls on the brief), for appellant.

Horace Manning, of Klamath Falls (Manning, McColloch & Driscoll, of Klamath Falls, on the brief), for respondent.

BELT J.

This is an action to recover damages for personal injuries received while plaintiff was a patient in the Klamath Valley Hospital an institution owned and operated by defendant for private gain. The action arose as follows: Drs. Massey and Soule performed a surgical operation upon plaintiff, and, while she was still unconscious as a result of the general anæsthetic, removed her from the surgery to a bed prepared for her by nurses in the employ of defendant. The doctors say that before placing her in bed each of them removed a hot water bottle. Dr. Soule is positive that all bottles were removed. Dr. Massey is not so certain, as he says there was a small triangular space under the bedding which he did not examine, large enough to cover a hot water bottle. The patient was left in charge of Miss Bramhall, a nurse in the employ of defendant, until the arrival of a special nurse. Before this nurse arrived, the plaintiff, who was beginning to recover consciousness, complained of being cold. Her husband suggested a hot water bottle, but Miss Bramhall said it was not needed. A few minutes later, before the arrival of the special nurse, Miss Bramhall, upon complaint of the plaintiff that her foot and leg pained her, discovered a hot water bottle in contact with the patient which caused a severe burn. Both Miss Bramhall and the husband of plaintiff denied having placed any hot water bottle in the bed. There is testimony that the mother of plaintiff was in the room before discovery of the bottle, but she also denies having anything to do with it. Miss Roeser and Mrs. Humphrey, nurses employed by defendant, testified that they prepared the bed for the reception of plaintiff after the operation. Miss Roeser says that she placed two hot water bottles in the bed and that Mrs. Humphrey went down the hall to secure another bottle, but that she did not see her put any in the bed. Mrs. Humphrey denies having anything to do with the bottles, but says she saw Miss Roeser place two in the bed.

This much is certain: Plaintiff was injured through the negligence of some person. The vital question is: Did defendant, through some nurse in his employ, fail to exercise due care in permitting a hot water bottle to burn plaintiff in her unconscious condition, or were her injuries the result of a negligent act on the part of some third person? Counsel for the plaintiff, in their brief, concede that Drs. Massey and Soule removed two bottles from the bed when plaintiff was returned from the surgery. If it be true that but two bottles were put in the bed when it was made by Mrs. Humphrey and Miss Roeser, then it would follow that some person must have placed a hot water bottle in the bed after the patient was left in the charge of Miss Bramhall and before the arrival of the special nurse, which was only twenty minutes after the completion of the operation. If more than two bottles were placed in the bed when it was made and the doctors removed only two of them, any negligence on their part could not be charged to the defendant, as they were employed by the plaintiff. It would seem, therefore, that the charge of negligence against defendant must be predicated on the theory that the hot water bottle was placed in the bed by Miss Bramhall. If the husband of the plaintiff, who was in the room and assisting Miss Bramhall in the care of his wife, placed this hot water bottle in the bed, there would, of course, be no liability as against the defendant. The respective theories of the parties were submitted to the jury, and a verdict returned in favor of the defendant. Plaintiff appeals, assigning error in the giving and the refusal to give certain instructions.

Plaintiff relies strongly on the doctrine of res ipsa loquitur. We do not think it applies to the facts in this case. It appears without contradiction, from the evidence, that there was a divided responsibility relative to the care and treatment of the plaintiff. The manner in which the accident happened does not of itself speak negligence on the...