University of Louisville v. Hammock

• Decision Date: 13 December 1907
• Citation: 106 S.W. 219,127 Ky. 564
• Parties: UNIVERSITY OF LOUISVILLE v. HAMMOCK.
• Court: Kentucky Court of Appeals

106 S.W. 219

127 Ky. 564

UNIVERSITY OF LOUISVILLE v. HAMMOCK.

Court of Appeals of Kentucky.

December 13, 1907

Appeal from Circuit Court, Jefferson County; Common Pleas Branch Third Division.

"To be officially reported."

Action bye Addie Hammock against the University of Louisville. From a judgment for plaintiff, defendant appeals. Affirmed.

Burnett & Burnett, for appellant.

Bennett H. Young, for appellee.

SETTLE J.

The appellee, Addie Hammock, recovered a verdict and judgment for $1,000 damages in the court below against the appellant University of Louisville, for injuries to her person, alleged to have been received while a patient in its infirmary at the hands of a demented or partially demented patient of the same institution, who, it was charged, had negligently been permitted to escape from his room and keeper, wander into that of appellee, and assault and maltreat her.

Failing to obtain in the lower court a new trial, appellant asks of this court a reversal of the judgment in question upon three grounds: (1) That it was not sued in its true corporate name (2) that no negligence was shown, and that the verdict returned by the jury was contrary to law and flagrantly against the evidence; (3) that appellant is a charitable institution and by reason thereof exempt from liability for the torts of its agents or servants.

As to the first proposition, little need be said. Obviously appellant was sued and judgment recovered against it as the "University of Louisville," when its true corporate name was and is the "President and Trustees of the University of Louisville," but the misnomer cannot be objected to for the first time on appeal. It should have been made in the circuit court by answer or affidavit in the nature of a plea in abatement, setting forth the misnomer and disclosing the true name of the defendant. When this is done the plaintiff may amend his petition, and then proceed against the defendant in his true name. L. & N. R. R. Co. v. Hall, 12 Bush, 131; Teets v. Snider Heading Mfg. Co., 120 Ky. 653, 87 S.W. 803; Pike, Morgan & Co. v. Wathen, 78 S.W. 137, 25 Ky. Law Rep. 1264; 14 Ency. of Plead. & Prac. 295. The record shows that the corporation sued was the same corporation that owned and controlled the hospital in which appellee sustained her injuries; and, as it failed to object in the circuit court to the improper corporate name given it or to disclose its true corporate name and there made defense on the merits, it is estopped to complain that judgment went against it in the name by which it was sued.

In our opinion the second contention of appellant is equally without merit. There was testimony conducing to prove negligence on the part of appellant and its employés in charge of the hospital, and that such negligence was the proximate cause of appellee's injuries. The facts, as disclosed by the evidence, were, in substance, that appellee, a married woman who was laboring under a serious illness, and greatly prostrated thereby, had placed herself in the hospital at the instance of her physician. She was a pay patient, and had the right to except of appellant and its employés in charge of the institution careful and skillful nursing and treatment such as her case particularly required. Indeed, the sick leave their homes and enter hospitals because of the superior treatment there promised them. On the day after appellee entered the hospital, its manager received as an inmate thereof a patient known as Dr. Meador, who was at the time afflicted with delirium tremens, a disease resulting from the excessive, habitual use of intoxicating liquors. This patient was placed in a room of the hospital on the floor beneath that occupied by appellee. At 10 p. m. of the same day Meador became so uncontrollable that he overawed the single female nurse in whose charge he had been left, and, escaping from his room, passed through the hall of the building and upstairs, talking in a loud voice and using profane language. Upon reaching the upper floor, he entered the room occupied by appellee, and approaching the bed where she was lying, seized her by the arms, struck and bruised her person, and dragged her from the bed, to her great fright and injury. Meador was finally captured, removed from the room, and securely tied by two nurses with the assistance of a negro porter, and a little later was returned to and confined in his own room. Whatever may have been his condition at other times, Meador, according to the evidence, was manifestly violent, uncontrollable, and delirious, if not actually crazy, when he escaped from his room and entered that of appellee and assaulted her. He was a large man of more than 200 pounds weight and great physical strength. Howard, the negro porter, admitted that he was physically unable to cope with him without assistance. The fact that physicians had disagnosed Meador's case as delirium tremens before he entered the hospital, and that such was...