Schwalb v. Connely, 15552.

• Decision Date: 07 April 1947
• Docket Number: 15552.
• Citation: 116 Colo. 195,179 P.2d 667
• Parties: SCHWALB et al. v. CONNELY.
• Court: Colorado Supreme Court

179 P.2d 667

116 Colo. 195

SCHWALB et al. v. CONNELY.

No. 15552.

Supreme Court of Colorado, in Department.

April 7, 1947

Error to District Court, City and County of Denver; George A Luxford, Judge.

Action by Mabel J. Connely against Carl P. Schwalb and others to recover damages for the unlawful performance of an autopsy on the body of plaintiff's deceased husband. To review a judgment for the plaintiff, the defendants bring error.

Judgment reversed.

In order that exceptions to the rule that the doctrine of respondeat superior is not applicable to an officer of a municipal corporation, may be considered, they must be alleged in the complaint.

Malcolm Lindsey and Frank L. Hays, both of Denver for plaintiffs in error.

J. Fred Schneider and L. E. F. Talkington, both of Denver, for defendant in error.

HILLIARD Justice.

An action for damages having genesis in an autopsy or post-mortem examination upon the body of plaintiff's deceased husband. The case was submitted and decided upon stipulated facts, presently to be stated. There were general findings in favor of plaintiff, defendant in error, and judgment against the several defendants plaintiffs in error, in the sum of $100.

The stipulation consists in part of original matter, and in part of designated paragraphs of the pleadings, some in the complaint, others in the answer, referred to, but not set forth, therein. In such situations, as we think, a preferable practice would be to state all the facts at length in the stipulation. The circumstances considered, we shall endeavor to present the factual situation comprehended in the stipulation, and in proper sequence, largely by copying, but not quoting, from it and the pleadings referred to therein, that is to say, as follows:

Defendant Schwalb is the manager of health and charity and ex officio coroner of the City and County of Denver, and as such had direct charge of and general supervision of the Denver General Hospital and all the operations, functions and employees thereof, including the morgue kept and maintained therein; that defendant Economy is the regularly and duly appointed and acting deputy coroner for the City and County of Denver, and has direct charge of the morgue kept and maintained at said Denver General Hospital; that defendant Williams is the pathologist for the Denver General Hospital who, proceeding pursuant to the rules and regulations thereof, performed an autopsy or post-mortem upon the body of plaintiff's husband; that to determine the cause of death an autopsy was not necessary, and that the certificate of the death was executed by another physician of the hospital staff and filed with the registrar of vital statistics; that said death certificate does not show that an autopsy was performed; that some one or more employees (not identified) of said hospital requested of plaintiff permission to perform an autopsy upon the body of her husband immediately after his death, and that permission was refused; that said autopsy was performed without authorization or the consent of plaintiff, or any representative of the family of the deceased; that all defendants, the employees referred to who made request to perform the autopsy, and the nurse referred to in defendant's answer, were all officers or employees of the same employer; that for a long period of time prior to May 13, 1942, plaintiff was the wife of the deceased, and hitherto has been his widow; that for a period of several days prior to the 13th day of May, 1942, deceased had been a patient in the Denver General Hospital in the City and County of Denver, and that on said date he departed this life therein; that defendant Economy, as deputy coroner, exercises and performs the duties of coroner under the general laws of the state, and does not have any control or supervision over autopsies performed pursuant to the consent of relatives; that section 118 of the Denver Charter provides that there shall be, and hereby is, created a department of health and charity, which shall have full charge and control of the health department of the city; the department of charity and correction; the management and control of the poor farms, hospitals, and city markets, now under the control of the commissioner of social welfare; that the manager of health and charity shall be the officer in full charge and control of said department; that he shall also perform the acts and duties now required, or which may hereafter be required by the Constitution and general laws of this state, to be exercised and performed by the county coroner, and shall devote his entire time to the duties of this office; that section 119 of said charter provides the said official shall have control of the City and County Hospitals, the Steele Memorial Hospital, and shall provide, maintain and have charge of a morgue; that he shall, at least quarterly, visit every institution in the City and County, private or public, maintained for the care of the sick, injured, indigent, insane or minors; that pursuant to above charter provisions, and for the purpose of preserving and maintaining the health of the people of the City and County of Denver, there is, and at all times herein mentioned has been conducted and maintained a hospital in the City and County of Denver known as Denver General Hospital; that said hospital is owned and operated by the City and County of Denver, a municipal corporation of the State of Colorado, and managed by the defendant, Carl Ph. Schwalb, as manager of health and charity of the City and County of Denver; that April 27, 1942, there was admitted as a patient to said hospital one Charles R. Connely, who was thereafter treated and cared for by the regular hospital staff until May 13, 1942, at 6:55 a. m., when he died; that at the time of said Connely's death, and for several days prior thereto, one William Lloyd was also a patient at said hospital, occupied an adjoining bed to that occupied by Connely, and who died the same day at 6:50 a. m.; that pursuant to the rules and...