Schau v. Morgan

• Decision Date: 10 November 1942
• Citation: 241 Wis. 334,6 N.W.2d 212
• Parties: SCHAU v. MORGAN, M. D., et al.
• Court: Wisconsin Supreme Court

241 Wis. 334

6 N.W.2d 212

SCHAU

v.MORGAN, M. D., et al.

Supreme Court of Wisconsin.

Nov. 10, 1942.

Appeal from an order of the Circuit Court for Milwaukee County; C. L. Aarons, Judge.

Reversed.

The order from which appeal is taken denied a motion of the appellant Evangelical Deaconess Society of Wisconsin, a corporation, for a summary judgment dismissing the complaint as to it. On January 29, 1942, the plaintiff-respondent commenced this action against the defendants, Dr. James E. Morgan and Evangelical Deaconess Society of Wisconsin, a corporation. It is a malpractice action.

The complaint in substance alleges that plaintiff is a married woman, 24 years of age, the mother of a child five years of age; that she is engaged in keeping house for her family in the city of Milwaukee; that defendant Morgan is a physician and surgeon by profession, duly licensed to practice his profession in Wisconsin, and resided in the city of Milwaukee; that the defendant Evangelical Deaconess Society of Wisconsin is a corporation duly organized under the laws of Wisconsin, engaged in the maintenance and operation of a hospital for hire located in the city of Milwaukee; that during the entire period of plaintiff's pregnancy, beginning with the month of January, 1941, and until the birth of the child hereinafter mentioned, defendant doctor was the attending physician, for which services he was paid; that on the 9th day of August, 1941, at about 2 o'clock in the afternoon, under the advice and order of the defendant doctor, plaintiff went to the hospital of the defendant society to have her child delivered; that defendant doctor promised plaintiff to be with her at said hospital from the time of her arrival, for which he had arranged, until said child was born, for which services said hospital was paid. It is further alleged:

“That upon information and belief, the defendant hospital and the defendant doctor through their agents, servants and employees carelessly, negligently and wilfully mishandled, cared, treated and attended to the plaintiff at and just prior to the delivery of her child; that during her last minutes of pregnancy, to-wit: at and just prior to the time the careless, negligent and wilful treatment were administered to the plaintiff by the defendants, as aforesaid, the fetus of said plaintiff was alive and that the pulse of said fetus was normal. That while the plaintiff was at said defendant hospital at all times herein mentioned both defendants were in control of said plaintiff and of the care and attention administered to the plaintiff.

“That the wilful, careless and negligent acts of the defendant at all times herein mentioned were as follows:

“(a) The defendants through their agents, servants and employees failed to handle and treat said plaintiff while in her last minutes of pregnancy at the said defendant hospital efficiently and properly; that the defendants through their agents, servants and employees held the legs of said plaintiff close together and that they prevented by means of force the plaintiff from bending over; that by holding plaintiff's legs together and by preventing her from bending over, as aforesaid, they prolonged the ‘labor pains' and delayed the delivery of plaintiff's child.

“(b) That the defendants owed a duty to the public and especially to the plaintiff to administer the care, treatment and attention to the plaintiff through their agents, servants and employees carefully, safely, and efficiently and that by conducting themselves as heretofore described in paragraphs 5 and 6, subsection (a), the defendants failed to carry out their duty.

“(c) That the defendant doctor failed to be at the said defendant hospital at the time the care and treatment, mentioned in paragraphs 5 and 6, subsection (a), was administered to the plaintiff.

“(d) That the defendant doctor owed a duty to the public and especially to the plaintiff to be with her at the said defendant hospital, and which defendant doctor promised to do and upon which promise the plaintiff had a right to rely and did rely; that by his being absent at the time and place, mentioned in paragraphs 5 and 6, subsections (a) and (c), the said defendant doctor failed to fulfil his duty as well as his promise.”

It is further alleged that as a result of the conduct of both defendants plaintiff's child was asphyxiated and delivered dead on the 9th day of August, 1941; that as a result of said dead child plaintiff suffered a nervous shock, humiliation, pain and mental anguish, grief and sorrow, loss of companionship and affection, to her damage, etc.; that the conduct of the defendants as alleged was the sole and proximate cause of the damage to plaintiff.

The defendants answered separately. The defendant Evangelical Deaconess Society of Wisconsin admits its corporate existence but alleges that it is and at all of the times referred to in the complaint was a charitable institution organized and existing for charitable, benevolent, and educational purposes; that it is a corporation without capital stock; that no dividends or pecuniary profits have ever or can be declared to the members of said corporation; denies that it through any agent, servant or employee carelessly, negligently or wilfully mishandled, cared, treated or attended to the plaintiff at or prior to the delivery of her child; denies that plaintiff's child was asphyxiated or delivered dead on account of any careless, negligent or unskillful acts or omissions of it or of any officer or servant.

Upon its answer and the affidavit of J. P. Meyer, D.D., said defendant on March 6, 1942, moved for an order for summary judgment in its favor and against the plaintiff dismissing the action. Dr. Meyer in his affidavit states that he is the superintendent of defendant's hospital; that the defendant Evangelical Deaconess Society of Wisconsin is and at all the times referred to was a charitable institution maintaining a hospital where plaintiff was a patient; that among other things the articles of incorporation of said defendant provide as follows:

“Article 2. * * * (a) There shall be no capital stock of this society, same being formed for benevolent, charitable and educational purposes.

“(b) There shall be declared no dividend or pecuniary profits of this society.

“Article 3. It is the object of this society (a) To nurse the sick, and to exercise care for poor and aged by deaconesses, according to the constitution and by-laws of this society.

“(b) To found and support a deaconess home where deaconesses shall be educated and trained, and from which they shall be sent as nurses, and where sick and aged under circumstances, provided by by-laws may be admitted and receive attendance. * * *”;

that the constitution and by-laws provide:

“Sec. 2. Said society is formed without capital stock, and no dividends or pecuniary profits shall be declared to the members of said society. Same is organized and shall be conducted for benevolent, charitable and educational purposes.

“Sec. 3. Purpose of this society shall be: (a) To establish and maintain a hospital and to exercise charity. (b) To found and support a home and a training-school where deaconesses and nurses shall live and be educated. (c) To found or maintain other benevolent institutions as the society authorizes from time to time.”; that said provisions above quoted in the articles of incorporation and constitution and by-laws were in effect at all times referred to in the complaint and still are in full force and effect; that no dividends of any kind have ever been declared and none can be under its articles of incorporation, constitution and by-laws; that said society operates its hospital at a loss; that the hospital charged an average of $3.30 a day for ward beds during 1941; that the cost to the hospital was an average of $4.62 to operate each of said beds per day; that during 1941 the hospital took care of forty-four complete charity cases and eighteen partial charity cases which were taken in the hospital as such. In addition discounts were given to patients in a large number of cases where patients represented financial inability to pay the entire amount of the bills of said defendant at its usual rates; that allowances were made to students of $790.22; that complete charity cases alone cost the hospital in 1941, $4,211.08; that it has been at all times necessary for the hospital to make up the financial deficit in its operations by soliciting and receiving subscriptions as charity from persons in order to enable said defendant to carry on its work and fulfill its purposes; the income for said defendant in said institution being derived from fees from patients being insufficient to enable it to operate and carry on its work; that said defendant maintains a training school for nurses and an educational set-up for the development of medical men; that the work involved in teaching and instruction is carried on on a voluntary basis by doctors and others; that the defendant is recognized as a charitable institution by the state and national governments and is given the benefit of all tax exemptions permitted by such governments to charitable and benevolent institutions.

Dr. Meyer further declares that this action has no merit and that said defense, based upon the character of the defendant, is sufficient to defeat the...