Richardson v. Dumas

• Citation: 64 So. 459,106 Miss. 664
• Decision Date: 09 March 1914
• Docket Number: 16350
• Court: United States State Supreme Court of Mississippi
• Parties: GEORGE RICHARDSON v. W. A. DUMAS

64 So. 459

106 Miss. 664

GEORGE RICHARDSON v. W. A. DUMAS

No. 16350

Supreme Court of Mississippi

March 9, 1914

APPEAL from the circuit court of Adams county, HON. W. H. WILKERSON Judge.

Suit by George Richardson against W. A. Dumas. From a judgment for defendant, plaintiff appeals.

Reversed and remanded.

Chas F. Engle and Easterling, Potter & Greaves, for appellant.

What degree of care did appellee, as the owner of a sanitarium owe to his patient under his contract in this case? The contract, as shown by the evidence, required appellee to furnish the sick man with a competent trained nurse day and night and to furnish him with every attention commensurate with his condition and requirements. Appellee charged a higher rate for this additional care and attention, and accordingly will be held to a stricter degree of care prudence, attention and foresight to the patient. A hospital, incorporated and conducted for private gain and for the benefit of the stockholders thereof is liable in damages to its patient for the negligence or misconduct of its officers or employees. A patient sent to a hospital is entitled to such reasonable care and attention for his safety as his mental and physical attention may require. Hogan v. Clarksburg Hospital Co., (W. Va.), 59 S.W. 943; Stanley v. Shumpert, 6 L. R. A. (N. S.), 306, 41 So. 565 and notes cited thereunder.

Wherein the appellant has failed to make out his case, and upon what ground, we have searched in vain and fail to see. This is a case we contend of res ipsa loquitur. The fact of finding the sick man who was shown to have been placed in the sanitarium, and who was shown a short time before the injury to have been in a delirious condition, naked under the window, fatally wounded, twenty-four feet below the window of the room in which he was being cared for, itself makes out a case of negligence and casts upon defendant the burden of showing that neither he nor his agents and servants were negligent.

"When an unusual and unexpected accident happens and the thing causing the accident is in one's exclusive management, possession and control, the accident speaks for itself; it is a witness res ipsa loquitur, and in a suit by one having an action therefor the fact of the accident puts upon the defendant the duty of showing that it was not occasioned by negligence on his part." Williams Branfoot v. , 48 F. 914; Lykiardpoule v. N. O. & C. R. L. & T. Co., 127 La. , 53 So. 575. See, also, the case of Brown v. Y. & M. V. R. R. Co. (Miss.), 4 So. 383; Bell v. Refuge Cotton Oil Mill, 27 So. 38; A. & V. Ry. Co. v. Groome, 52 So. 703; 2 Labatte on Master & Servants, par. 834; 1 Addison on Torts, sec. 33; Scott v. London Docks Co., 3 Hurl & Colt, 596; 2 Thomson on Negligence, sec. 15, page 16. See, also, the case of Tennessee Coal & Iron Co. v. Hayes (Ala.), 12 So. 98.

It is difficult to see how the plaintiff in the court below could have proved his case by stronger evidence. The facts speak for themselves. The sick man was placed in care of defendant's sanitarium for treatment, and care at a higher rate, so as to procure nurses by night and day; his condition was known by the defendant's servants and agents; it was known that the patient was delirious. It certainly needs no argument to show that in the ordinary course of human events such accidents as these do not happen if those who have management, use the proper prudence, care and caution. In the absence of an explanation from the defendant it shows conclusively that the patient was not being looked after and properly attended and cared for. It must be remembered that the defendant held himself out to the public as being especially qualified for the undertaking he was engaged in, maintaining a sanitarium for the cure and treatment of people suffering from disease, and also that the special agreement was for a nurse by day and a nurse by night to attend upon the sick man, and the further fact that the nurse in charge of the sick patient on the night of the accident, several hours before it occurred, had knowledge that the patient was delirious and talking out of his head, and hence in such condition as to require constant and unrelaxing supervision, care and watchfulness. These facts, coupled with the further fact that a window on the second floor where patients were placed for treatment should be left open and unguarded, all go to show beyond any dispute, in the absence of a showing to the contrary, that the defendant was guilty of gross negligence and want of care.

"So many questions are integrated usually into the solution of the question of negligence it is so necessary to carefully examine all the circumstances making up the situation in each case that it must be a rare case of negligence which the court should take from the jury." Bell v. Railroad Co., 30 So. 821; Laurel Mercantile Co. v. Mobile, etc., R. R. Co., 87 Miss. 675, 40 So. 259.

L. T. Kennedy, for appellee.

It is contended by appellant that this is a case for the application of the maxim, res ipsa loquitur.

The doctrine has no application in the case at bar for the following reasons, to-wit: First, no injury has been proven, of which the conditions and circumstances shown by the evidence, were the proximate cause; second, because the declaration and the evidence, viewed in the light of the appellant is that the deceased's death was the result of two concurring causes. See 29 Cyc., 592, note 98.

Passing to the second reason, why the maxim is not applicable, we quote from 29 Cyc. 392. Nor does it apply where the cause of the accident is known or where the injury was the result of two or more concurring causes."

The plaintiff showed by his own testimony the operation of a cause beyond the control of the defendant below, appellee here, the presence of a vis major, namely a protracted case of Typhoid Fever, and it became necessary thereby to go further and prove the actual concurrence of the negligence of the defendant as an operating and efficient cause. See Harrison v. Sutter, 55 L. R. A. 608. See 29 Cyc., pages 592 and 624, with note 14.

The case of Lykiardopoulo v. N. O. C. R. L. & T. Co., 53 So. 575, cited by appellant herein, is based upon the application of the maxim res ipsa loquitur, which does not apply in the case at...