Opinion
November 22, 1948.
1. Pleadings — amendment.
Where the plaintiff has filed a motion to be allowed to amend his declaration, setting out the amendment, and the amendment was allowed by an entered order incorporating the amendment by quotation from the text of the motion, it is not necessary that the amendment shall have been manually interlined in the original declaration.
2. Charity hospital — negligence, limited liability.
A charity hospital is not liable for the negligence of its nurses under the doctrine of respondeat superior, but its liability if any must be the result of its direct original negligence in the failure to exercise reasonable care in the selection and employment of competent nurses.
3. Negligence — employment of attendants — evidence.
The custom and routine of a charity hospital in employing as nurses those without prior training and without examination as to their capacity, its failure to maintain a training school for its nurses, and its custom to ignore the absence of general and special educational qualifications, were relevant circumstances upon the issue of the exercise of reasonable care in the selection and employment of nurses.
4. Trial — instructions — inconsistency in.
When in an action against a charity hospital an instruction for the plaintiff emphasizes almost to the exclusion of any other theory the negligence of the nurse, the error is not cured by instructions granted defendant based on the correct theory, since their inconsistency forestalls any curative effect.
Headnotes as approved by Alexander, J.
APPEAL from the circuit court of Boliver County, E.F. GREEN, J.
Walter Sillers, Smith Jones, B.A. Green, and W.W. Simmons, for appellant.
The lower court erred in refusing the peremptory instruction requested by appellant. (1) Appellant is a fraternal benefit society. Section 5773, Section 5752, Code of 1942. (2) Charitable hospital not liable for negligence of servant selected with due care and caution. Eastman Gardner Co. v. Permenter, 111 Miss. 813, 72 So. 234; James v. Y. M.V.R.R. Co., 153 Miss. 776, 121 So. 819; Mississippi Baptist Hospital v. Moore, 156 Miss. 676, 126 So. 465. (3) The burden of proof was upon appellee to prove not only that the hospital was negligent in selecting the servants involved in the injury to appellee, but also that the said servants were in fact incompetent, and the declaration should have so charged. Weston v. Hospital of St. Vincent (Va.), 107 S.E. 785, 23 A.L.R. 907; James v. Y. M.V.R.R. Co., 153 Miss. 776, 121 So. 819; Hamburger v. Cornell University, 240 N.Y. 328, 148 N.E. 539, 42 A.L.R. 955; Congdon v. Louisiana Sawmill Co., 78 So. 470 (La.); Jordan v. Touro Infirmary (La.), 123 So. 726.
The declaration failed to state a cause of action against appellant, a charitable institution, operating a charitable hospital. Lacky v. Railroad Co., 102 Miss. 339, 59 So. 97; Oliver v. Miles, 144 Miss. 857, 110 So. 666, 50 A.L.R. 357; Pigford v. Howse, 149 Miss. 692, 115 So. 774; Gill v. Dantzler Lumber Company, 153 Miss. 559, 121 So. 153; Gulf Research Development Co. v. Lander, 177 Miss. 123, 170 So. 646; Section 1511, Section 2533, Code of 1942.
No real evidence of incompetency, no evidence of retention after discovery of incompetence, no evidence of lack of care and caution in selection of servants. Fordyce v. Woman's C.M.L. Anns., 79 Ark. 550, 562, 96 S.W. 155, 7 L.R.A. (N.S.) 485; Section 8829, Code of 1942; Ingram Day Lumber Company v. Joh, 107 Miss. 43, 64 So. 934; Cecil Lumber Co. v. McLeod, 122 Miss. 767, 85 So. 78, 11 A.L.R. 776, 35 Am. Jur. 776, Section 351.
Appellee relied on representations by the doctor and did not rely on representations by the hospital, express or implied. Cecil Lumber Co. v. McLeod, 122 Miss. 768, 85 So. 78; Weston v. Hospital of St. Vincent (Va.), 107 S.E. 785, 23 A.L.R. 907; 21 R.C.L. 389, Section 33; 41 Am. Jur. 224, Section 112; 60 A.L.R. 150; 41 Am. Jur. 215, Section 99; Saucier v. Ross, 112 Miss. 306, 73 So. 49, 14 N.C.C.A. 668; Isaac v. Prince Wilds, 133 Miss. 195, 97 So. 558; Yazoo Miss. Valley R.R. Co. v. Denton, 160 Miss. 850, 133 So. 656; Stone v. Walker, 77 So. 554 (Ala.), L.R.A. 1918C, p. 839; Montgomery Southern R. Co. v. Matthews, 77 Ala. 357, 54 Am. Rep. 60; Weston v. Hospital of St. Vincent (Va.), 107 S.E. 785, 23 A.L.R. 907; 11 C.J. 577; Hoke et al. v. Glenn et al., 167 N.C. 594, 83 S.E. 807, Ann. Cas. 1916E, p. 250; Arlo A. Taylor v. Flower Deaconess Home and Hospital, 104 Ohio St. 61, 135 N.E. 287, 23 A.L.R. 900; Magnusen v. Swedish Hospital, 99 Wn. 399, 169 P. 828; McDonald v. Mass. General Hospital, 120 Mass. 432, 21 Am. Rep. 529; Schloendorf v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92, 1915C Ann. Cas. 581; 133 A.L.R. 826-827; Rowekamp v. New York P.G. Medical School Hospital, 254 App. Div. 265, 4 N.Y.S. (2) 751; Stewart v. Brunswick Home, 172 Misc. 787, 16 N.Y.S.2d 83, 259 App. Div. 1018, 20 N.Y.S.2d 459; Mikota v. Sisters of Mercy, etc., 183 Iowa 1378, 168 N.W. 219; Bufkin v. Louisville N.R. Co., 161 Miss. 594, 137 So. 517; Blizzard v. Fitzsimmons, 193 Miss. 484, 10 So.2d 343.
The appellant being a fraternal benefit society, and being under the control and supervision of the state, and its powers being expressly stated and limited by statute, and the purposes for which its funds may be disbursed limited by statute, and no power being granted to apply any of its funds to the payment of damages for personal injury, its funds cannot be so applied; and a charity hospital operated by such society cannot be made to respond in damages for personal injury, whether the injury be due to the negligence of a subordinate employee or be due to the negligence of its managing employees in the selection of incompetent subordinate employees. Section 5752, Section 5754, Code of 1942; Roosen v. Peter Bent Brigham Hospital, 235 Mass. 66, 126 N.E. 392, 14 A.L.R. 563.
The trial court erred in admitting in evidence the hospital chart pertaining to appellee as a patient in the hospital of appellant, and then permitting the appellee, who offered said chart in evidence, to undertake to discredit same. Metropolitan Life Insurance Co. v. McSwain, 149 Miss. 455, 115 So. 555; Motley v. State, 174 Miss. 568, 165 So. 296; Osborne v. Grand Trunk R. Co., 87 Vt. 104, 88 A. 512, Ann. Cas. 1916C, p. 74; Baird v. Riley, 92 Fed. 884, 35 C.C.A. 78; Clayton v. Metropolitan Life Insurance Co. (Utah), 85 P.2d 819, 120 A.L.R. 1117; Barfield v. South Highland Infirmary, 191 Ala. 553, 68 So. 30; 75 A.L.R. 378, 120 A.L.R. 1117.
Instruction No. 1 for plaintiff erroneously tells the jury that if defendant failed to use due care at any time in selecting nurses or did not employ sufficient numbers to care for plaintiff as his condition required, defendant is liable and because instruction is in conflict with those given for the defendant. Mississippi Baptist Hospital v. Moore (Miss.), 126 So. 465, 67 A.L.R. 1106; Young et al. v. Boy Scouts of America, 9 Co. App. 2d 760, 51 P.2d 191; Jackson v. Leggett, 186 Miss. 123, 189 So. 180; Graham v. Brummett, 182 Miss. 580, 181 So. 721.
In action against charitable hospital for injury caused by nurse placing hot water bottle against plaintiff's arm on theory that the managing officers of the hospital were negligent in selecting the nurses in attendance on plaintiff, evidence should have been limited to manner of selection of such nurses and evidence of the number of nurses on duty on other wards and at times other than time plaintiff was injured should not have been admitted. Grote v. Blakley (Ky.), 264 S.W. 1055; Stranahan v. Genesee, County Farmers Mut. Ins. Co. (Mich.) 218 N.W. 688; Summer v. Hogsed (Ga. App.), 152 S.E. 260; Schram v. Johnson (Iowa), 225 N.W. 369 Alexander Feduccia, for appellee.
On the question of the amendment to the declaration charging the appellant with lack of due care and caution in selection of its servants. 49 C.J. 548-549, Section 748b; Eakin v. Burger, 1 Sneed 417; Brantz v. Marcus, 73 Iowa 64, 35 N.W. 115; Carter v. Fischer, 127 Ala. 52, 28 So. 376; Richardson v. Dumas, 106 Miss. 664, 64 So. 459; Section 1511, Section 1306, Code of 1942; Montgomery Ward Co., Inc., v. Nickens, 33 So.2d 815, 816; Yazoo M.V.R. Co. v. Daily, 157 Miss. 3, 127 So. 575; Rea v. Grubb (Miss.), 39 So. 808.
This case tried under the rule and theory laid down in Mississippi Baptist Hospital v. Moore, 156 Miss. 676, 126 So. 465.
Section 5773, Miss. Code 1942; James v. Y. M.V.R. Co., 153 Miss. 776, 121 So. 819; Eastman Gardiner v. Perminter, 111 Miss. 813, 72 So. 234; 3 Labatt's Master Servant (2d ed.) 2895; Norfolk Protestant Hosp. v. Plunkett, 166 Va. 151, 173 S.E. 363, 365; Hamilton Bros. Co. v. Weeks, 155 Miss. 754, 124 So. 800.
Appellant not a charitable institution (a) Taxation statute not applicable when operating for profit. Section 7132, section 5773, Code 1942; Clavin v. R.I. Hospital, 12 R.I. 411, 34 Am. Rep. 675; Ridgely Lodge No. 23 I.O.O.F. v. Redus, 78 Miss. 352, 29 So. 163; Senter et al. v. City of Tupelo, 136 Miss. 257, 101 So. 372; Gunter v. City of Jackson, 130 Miss. 637, 94 So. 844, 846; 119 A.L.R. 1002; Arthur B. White v. Central Dispensary Emergency Hospital, 99 F.2d 355; Steward v. Calif. Med. Missionary Benevolent Assn., 178 Cal. 418, 176 P. 46; 51 Am. Jur. 608, sec. 638; Prairie Du Chien Sanitorium Co. v. City of Prairie Du Chien, 242 Wis. 262, 7 N.W.2d 832; Re Farmers Union Hosp. Assn., 190 Okla. 661, 126 P.2d 244; Rhodes et al. v. Millsaps College, 179 Miss. 596, 176 So. 253; Richardson v. Dumas, 106 Miss. 664, 64 So. 459; Meridian Sanitorium v. Scruggs, 121 Miss. 330, 83 So. 532-534; Maxie et al. v. Laurel General Hospital, 130 Miss. 246, 93 So. 817; Section 5354, Code 1942; Woodville Lodge 6, U.O.O.E. v. Poole, 190 Miss. 798, 180 So.2d 780.
(b) Fraternal benefit societies liable in tort as any other corporation. 61 C.J. 496, section 583 (2); 38 Am. Jur. 582, section 188; Sanders et ux. v. Dr. Smith et al., 200 Miss. 551, 27 So.2d 889; Lahiff v. St. Joseph et al. Abst. Bene. Soc., 57 A. 692, 65 L.R.A. 92, 100 Am. St. Rep. 1012; Thompson v. Supreme Tent of Knoghts of Maccabees of the World, 189 N.Y. 294, 82 N.E. 141; Equity Life Assn. of Okla. City v. Willis et al., 108 P.2d 210; Malmstead v. Minn. Aerie No. 34, Fraternal Order of Eagles et al., 126 N.W. 486, 137 Am. St. Rep. 542; High v. Supreme Lodge L.O.M., 7 N.W.2d 675, 144 A.L.R. 810; Supreme Lodge L.O.M. v. Kenny, 73 So. 519, L.R.A. 1917C 469; Morse v. Modern Woodmen of America, 164 N.W. 829, A.M. Cas. 1918D 480.
(c) The trend is towards corporate liability for charitable hospitals. Tucker v. Mobile Infirmary Assn., 191 Ala. 572, 68 So. 4, L.R.A. 1915D 1167; Ala. Baptist Bd. v. Carter, 226 Ala. 109, 145 So. 443; Geiger v. Simpson Meth.-Epis. Church of Minn., 174 Minn. 389-393, 219 N.W. 463-464, 62 A.L.R. 716; Nicholson v. Good Samaritan Hospital, 145 Fla. 360, 199 So. 344, 133 A.L.R. 809; Silver v. Providence Hospital, 14 Cal.2d 762, 97 P.2d 798; England v. Hospital of Good Samaritan, 14 Cal.2d 97, 97 P.2d 813; Sisters of Sorrowful Mother v. Zeidler, 183 Okla. 454, 82 P.2d 996; Miss. Law Journal, March 1948 Issue, Vol. XIX, No. 2.
Appellee relied upon appellant and not Dr. Howard for postoperative care. Byrd v. Marion General Hospital, 162 S.E. 738-740, 202 N.C. 337; 60 A.L.R. 150 et seq.; Stewart v. Manases, 244 Pa. 221, 90 A. 574; Hale v. Atkins, 215 Mo. App. 380, 256 S.W. 544; Wright v. Conway, 34 Wyo. 1, 241 P. 369, 242 P. 1107; Malkowski v. Graham, 169 Wis. 398, 4 A.L.R. 1524, 172 N.W. 585; Marchand v. Bertrand, Rap. Jnd. Quebec, 39 C.S. 49; Hunner v. Stevenson, 122 Md. 40, 89 A. 418; Fowler v. Norway Sanitorium, 42 N.E.2d 415; 124 A.L.R. 194; Flower Hospital v. Hart, 178 Okla. 447, 62 P.2d 1248; Cornell et ux. v. U.S.F. G. Co. et al. (La.), 8 So.2d 364; City of Miami v. Oates (Fla.), 10 So.2d 721; Meridian Sanitarium v. Scruggs, supra; Maxie et al. v. Laurel Gen. Hospital, supra; Richardson v. Dumas, supra.
Hospital chart admissible in evidence as an exception to the hearsay rule and in rebuttal to testimony of appellant. 26 Am. Jur. 590; Wigmore on Evidence, section 1701, page 36; 75 A.L.R. 371, 379; Lund v. Olson et al. (Minn.), 234 N.W. 310; Adler v. N Y Life Ins. Co., 33 F.2d 827; Barfield v. South Highland Infirmary, 191 Ala. 553, 68 So. 30, Am. Cas. 1916C 1097; Globe Indemnity Co. v. Reinhart, 152 Med. 439, 137 A. 43; Unterverg v. Boston Elevator Ry. Co., 266 Mass. 10, 164 N.E. 478; 120 A.L.R. 1124, 1125; Motley v. State, 174 Miss. 568, 165 So. 296; Kroger Gro. Baking Co. v. Harpole, 175 Miss. 227, 166 So. 335, 339, 340; Yazoo M.V.R. Co. v. Decker, 150 Miss. 621, 116 So. 287, 291; section 1693, Code 1942.
Answer to the authorities and contentions of the appellant. Afro-American Sons Daughters v. Webster, particular reference to page 604 of 172 Miss. Rep.; Mississippi Baptist Hospital v. Moore, particular reference to page 688 of 156 Miss. Rep.; Taylor v. Flower Deaconess Home Hospital, particular reference to page 903 of 23 A.L.R.; Saucier v. Ross, particular reference to page 50 of 73 So. Rep. (Distinguished); 41 C.J.S. 347, section 8; Avent v. Tucker, 188 Miss. 207, 194 So. 596, 602; Yorkshire Ins. Co. v. Brewer, 175 Miss. 538, 166 So. 361, 362; Evans Motor Freight Lines v. Fleming et al., 184 Miss. 808, 185 So. 821, 824; Metropolitan Life Ins. Co. v. Moss, 192 So. 343; Sumner Stores of Mississippi, Inc., v. Little, 187 Miss. 310, 192 So. 857, 863; Gulfport Fertilizer Co. v. Bilbo, 178 Miss. 791, 174 So. 65; Meridian Sanatorium v. Scruggs, 121 Miss. 330, 83 So. 532, 534; 35 Am. Jur. 626, 627, section 197; Wallace v. Tremont G. Ry. Co., 140 La. 873, 74 So. 179, 180; Hill v. Big Creek Lumber Co., 108 La. 162, 32 So. 372; Miller et ux. v. Sisters of St. Francis et al. (Wash.), 105 P.2d 32.
A jury question. Trotter et al. v. Staggers et al., 28 So.2d 237, 238; C. R. Stores v. Scarborough, 189 Miss. 872, 196 So. 650; Saenger Theater Corp. v. Herndon, 180 Miss. 791, 178 So. 86, 87.
Appellee was a patient in the hospital operated by appellant. While under the influence of an anesthetic, his arm was badly burned by hot water bottles placed about him by the nurses in charge. Suit was brought against the hospital for its negligence in this respect under the doctrine of respondeat superior. After preliminary examination had disclosed that the hospital was properly to be classified as charitable, the declaration was sought to be amended so as to count upon the negligence of the defendant in its selection of incompetent nurses, resulting in the injury complained of. The allowance of this amendment is assigned for error by the appellant, against whom judgment was subsequently obtained. (Hn 1) We do not find any merit in the contention that the original declaration should have been manually amended by interlineation or otherwise. The plaintiff filed his motion for such amendment setting out its exact terms, and these were incorporated into an order which quoted the text of the motion and which was filed in the cause and entered upon the minutes of the court. This was sufficient under Gill v. L.N. Dantzler Lumber Co., 153 Miss. 559, 121 So. 153. See also Code 1942, Section 1306; 41 Am. Juris., Pleading, Section 288. The case thereafter proceeded upon the issue of negligence of the hospital in the selection of its nurses.
The errors assigned include (1) the overruling of defendant's motion to quash process against it, (2) refusal of a peremptory instruction in its favor, (3) the admitting of evidence on behalf of the plaintiff relating to the method of employing its nurses, (4) the giving and refusing of said instructions, the details will be later referred to, (5) admitting in evidence the hospital chart covering plaintiff's case.
In view of our conclusion that the cause should be remanded, the first assignment now becomes moot. In regard to the second assignment, we are of the opinion that there was no error in refusing a peremptory instruction on behalf of the defendant. We find no error in the admission of evidence as to the method of employing nurses in the hospital. While the negligence vel non of the hospital must be tested with reference to the alleged negligence of the particular nurses, or nurses responsible for preparing and supplying the hot water bottles, (Hn 3) the custom and routine of the hospital in employing as nurses those without prior training and without examination in regard to their capacity, its failure to maintain a training school for its nurses, and its custom to ignore the absence of general and special educational qualifications, albeit under the asserted pressure of a demand which it was difficult to supply, were relevant circumstances to show a knowledge by the hospital of foreseeable risks which it incurred in its policy to enlarge its nursing staff without due regard to the special qualifications required.
In this connection we refer to the assignment covering the admission of the hospital chart. This assignment could be dismissed in view of the failure of the record to disclose its admission. It is true that it was quoted from in the examination of witnesses, and we refer to this assignment in view of the possibility that upon a retrial its admission may again be sought, whereupon its relevancy must be confined to such intrinsic evidence as may be available therein showing the incompetency of the particular nurse whose neglect caused injury to the plaintiff. See Metropolitan Life Ins. Co. v. McSwain, 149 Miss. 455, 115 So. 555.
Instruction No. 1 for the plaintiff is as follows:
"The court instructs the Jury for the Plaintiff that if you believe from a preponderance of the evidence in this case that the defendant Hospital, through its officers or Board charged with the duty of employing Nurses and maids and other employees did not use due care and caution in the selection of its nurses and attendants or maids, and as a result thereof did not employ nurses and maids in sufficient numbers or of sufficient experience and training to properly operate the said Hospital, and if you further believe that the Plaintiff, Booker T. Barnes, entered said Hospital as a pay patient and was operated on for appendicitis and kept in said hospital for treatment after said operation and until he recovered therefrom sufficiently to return to his home, then the Plaintiff had the right to expect of the defendant and its nurses and maids, or of those charged with the duty of waiting on, caring for and nursing patients, including Plaintiff, the exercise of ordinary skill, care and caution in treating and nursing and caring for him, such as his case required, and such degree of ordinary care and caution and diligence should be in proportion to the physical or mental condition of the Plaintiff at the time; and if you further believe from a preponderance of the evidence that the said Plaintiff had not regained consciousness after his operation, and the said Defendant through its said servants and employees negligently placed a hot water bottle or bottles next to Plaintiff's right arm, or that they negligently allowed said bottle or bottles to come in contact with his right arm and there remain for a time, and that as a proximate result thereof Plaintiff was burned on his right arm as described in the Declaration, as amended, then your verdict should be for the Plaintiff for such damages as you think be fairly sustained, and in the event your verdict is for the Plaintiff the form of your verdict should be:
"`We, the Jury, find for the plaintiff in the sum of $ ____,' filling in the blank space the sum evidencing the damage you consider from the evidence that he sustained from said injury."
(Hn 2) As stated above, the record sustains the conclusion that the defendant was a charitable organization and the court so instructed the jury. The hospital therefore was liable only for its negligence in the selection of its nurses. Eastman, Gardiner Co. v. Permenter, 111 Miss. 813, 72 So. 234; James v. Yazoo M.V.R. Co., 153 Miss. 776, 121 So. 819; Mississippi Baptist Hospital, v. Moore, 156 Miss. 676, 126 So. 465, 67 A.L.R. 1116. Reverting to the quoted instruction, it will be seen that undue emphasis is placed upon the failure of the defendant to employ nurses in sufficient numbers. Such failure is not counted upon either in the declaration or its amendment. (Hn 4) The instruction emphasizes almost to the exclusion of any other theory that the issue involved is the negligence of defendant's nurses. Under our decisions, a charity hospital would not be liable for the negligence of its nurses if it had exercised reasonable care in the selection and employment of such nurses. Therefore, while it is necessary to show that the patient suffered injuries as a result of the negligence of the nurses, (Hn 2) liability in this case is, as stated above, not referable to the doctrine of respondeat superior, but is the result of its direct original negligence in the employment of the offending nurses.
It is of interest to note that the plaintiff procured another instruction which authorized the assessment of damages against the defendant for any injuries which "proximately resulted from the negligence, if any, from the defendant." Such instruction of course adds nothing to the clarity of the former instruction, but on the contrary adds to its confusion.
The instructions for the defendant were based upon the proper theory of liability. However, the inconsistency between instructions for the plaintiff and the defendant forestalls the possibility of any curative effect from the defendant's instructions.
The testimony as a whole raised an issue for the jury as to whether the hospital exercised reasonable care in the selection of the particular nurses whose ministrations resulted in injury to the plaintiff. But we must reverse and remand the case for trial solely upon the issue of the negligence vel non of the hospital in the selection of the particular nurses referred to, together with the issue as to whether or not the injuries proximately resulted from the negligence of a nurse of whose incompetence the hospital knew or should reasonably have known.
Reversed and remanded.