Smith v. Presentation Academy, 7293

• Decision Date: 13 June 1933
• Docket Number: 7293
• Citation: 248 N.W. 762,61 S.D. 323
• Parties: ANNA M. SMITH, Special Administratrix of the Estate of Robert M. Smith, deceased, Respondent, v. THE PRESENTATION ACADEMY OF ABERDEEN, Appellant.
• Court: South Dakota Supreme Court

61 S.D. 323

248 N.W. 762

ANNA M. SMITH, Special Administratrix of the Estate of Robert M. Smith, deceased, Respondent, v. THE PRESENTATION ACADEMY OF ABERDEEN,

Appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Brown County, SD

Hon. Howard Babcock, Judge

#7293—Reversed

Williamson, Smith & Williamson, Aberdeen, SD

Attorneys for Appellant.

Roger Campbell, Aberdeen, SD

Attorney for Respondent.

Opinion Filed Jun 13, 1933

POLLEY, Judge.

Plaintiff is the widow of Robert M. Smith and administratrix of his estate. During the year 1929, decedent was afflicted with a disease known as myelitis which rendered him entirely helpless. Defendant was operating a hospital in Aberdeen and decedent was taken to said hospital for care and treatment for said disease. The course of treatment given him was what was known as diathermy. This treatment consists of attaching metal plates to opposite sides of the patient’s body and then transmitting a current of electricity from one of said plates through the patient’s body, to the opposite plate. The application of the diathermy apparatus requires much care and skill, and constant attention on the part of the operator, and unless such care and skill are exercised serious consequences may result to the patient. On the 13th day of January, 1930, decedent was taken into the laboratory. The diathermy apparatus was attached to his body, and the electrical current turned on. Then, for some reason wholly, unknown and unexplained, the attendant who was operating the machine left the room, leaving the patient alone with the electric current passing through his body. Some time thereafter various persons in the building were attracted by the screams of the patient and on arriving at the laboratory found the patient’s clothing and the bed clothes on fire and the patient himself so badly burned that he died from the effects thereof in a few days. Plaintiff, claiming that decedent’s death was caused by the negligence of the attendant who was giving the diathermy treatment, and that defendant is liable for the negligent acts of its servants, brought this action to recover the damage resulting to her because of the death of her husband. Verdict and judgment were for plaintiff, and defendant appeals.

For its defense defendant claims that it is a charitable and benevolent association, operating a hospital in the City of Aberdeen, and, as such, it is not liable for damages resulting from the negligence of its servants and employees. And for a second defense defendant alleges that at the time plaintiff’s husband was brought to said hospital, and at the time of the injury from the effects of which death resulted, said decedent was afflicted with a fatal malady which affected his spine and rendered him a helpless paralytic; that he could not recover from such disease; that he...