Vannah v. Hart Private Hosp.

• Decision Date: 13 September 1917
• Parties: VANNAH v. HART PRIVATE HOSPITAL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

228 Mass. 132

117 N.E. 328

VANNAH

v.HART PRIVATE HOSPITAL.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 13, 1917.

Exceptions from Superior Court, Suffolk County; Marcus Morton, Judge.

Action by Winona A. Vannah against the Hart Private Hospital. There was verdict for defendant, and plaintiff excepts. Exceptions sustained.

John J. O'Hare, of Boston, for plaintiff.

Warren & Palmer, of Boston, for defendant.

LORING, J.

The defendant operates a private hospital for gain. The plaintiff went there to undergo an operation. She testified that ‘her physician made the arrangements for [her] entering into the hospital;’ ‘that she paid to the hospital $15 a week for attendance and $10 for the use of the operating room.’ The operation was performed by a surgeon not connected with the defendant hospital. The plaintiff was etherized by her family physician and he was not connected with the defendant. In addition to the surgeon and the family physician two of the defendant's nurses were present at the operation. When the plaintiff was on the operating table before she went under ether she had two rings on her hands. After the operation and while the plaintiff was still under the effects of ether she was carried from the operating room to her own room in the hospital by ‘one of the doctors assisted by the nurses.’ When the plaintiff came out of the ether she noticed that the more valuable of the two rings (a ring which ‘would not come off without assistance’) was missing. At the trial the plaintiff put the surgeon and the family physician on the witness stand. Each of them testified that he did not take the ring. The defendant put on the stand the superintendent of the hospital, one of the two operating nurses and the plaintiff's day nurse. Each of them testified that she did not take the ring. The operating nurse who was put upon the witness stand testified that the other operating nurse was in California ‘the last time she heard from’ her. The plaintiff made many requests for rulings and now insists upon the first, fifth, eleventh and twelfth set forth below.¹ These were refused and an exception taken. The judge instructed the jury that to recover the plaintiff must prove that she was in the exercise of due care and that the defendant was negligent. An exception was taken to this ruling. The case is here on these exceptions.

On the evidence the jury were warranted in finding that the ring was forcibly removed from the plaintiff's hand by the operating nurse who when last heard from was in California.

If the absent nurse did steal the ring it is plain that the defendant is not liable on the ground that in stealing the ring the nurse was acting without the scope of her employment as a servant of the defendant. The first request for ruling therefore was properly refused.

If the plaintiff had stood in the relation of a stranger to the defendant there would have been no error in the trial. But the plaintiff did not stand to the defendant in the relation of a stranger. It is apparent from the bill of exceptions that the case was not tried on the footing that the rights of the plaintiff in this action depended upon the contract made by her with the defendant. For this reason the terms of this contract do not appear as fully as they otherwise would have done. But from what does appear in the bill of exceptions the presiding judge was wrong in telling the jury that the defendant's liability depended upon the plaintiff proving that it was negligent.

Under the contract entered into by the defendant corporation it was its duty not only (1) to give the plaintiff a room in the hospital before and after the operation and (2) to give her surgeon and family physician the use of the operating room for the operation, but also (3) to give to the plaintiff the services of such nurses as were necessary for her care before, after and during the operation. It expressly appeared at the trial that ‘she [the plaintiff] paid to the hospital $15 a week for attendance.’ The services of the nurses which under the contract the defendant was bound to furnish the plaintiff included the services of nurses while she was unconscious from the effects of the ether a condition which was a necessary part of the operation. And the question we have to decide is whether there was a violation of duty on the part of the defendant under this contract if the operating nurse in question stole the ring by forcibly pulling it off the plaintiff's finger while she was under the effects of ether, or whether on the facts appearing at the trial the jury could have so found. We are of opinion that the jury could have so found.

If for example a stranger had burst into the operating room, attacked the plaintiff and done her bodily harm or had attacked the plaintiff while the nurses were carrying her from the operating room to her own room and the defendant's nurses had stood by and done nothing to protect the plaintiff from those attacks, it is plain in our opinion that there would have been a violation of the duty owed by the defendant under its contract with the plaintiff. It is equally plain in our opinion that the duty owed by the defendant under its contract with the plaintiff extended to the care of the rings on her fingers while she was unconscious from the effects of ether as well as to the security of her person. And finally it is equally plain in our opinion that there is as much a violation of the duty owed by the defendant under the contract where the attack upon the person or larceny of the ring is committed by one of the defendant's own nurses (whose duty it was to protect the plaintiff) as well as in the case where the attack is made by a stranger and the nurses do not undertake to protect her from the attack.

In its legal aspects the case is governed by the decision in Bryant v. Rich, 106 Mass. 180, 8 Am. Rep. 311. In that case a dispute arose between a passenger on one of the defendant's steamers and one of the defendant's waiters as to whether the passenger had paid for his supper. The plaintiff, a cousin of the passenger in question, made a suggestion to which no exception could have been taken. Whereupon not only the waiter in question but the head steward and the other waiters knocked down the plaintiff and beat him. It was for this assault and battery that the action in Bryant v. Rich was brought. The presiding judge ruled (in accordance with a request made by the defendant) that ‘there is no evidence that the steward and waiters, in assaulting the plaintiff, were acting within the scope of any authority, or in the discharge of any duty imposed upon them by the defendants.’ But...