114 N.Y.S. 1052 | N.Y. App. Div. | 1909
The defendant corporation •—■ incorporated under a special act — maintained in the city of Hew York a hospital for the relief of the sick and injured. It is mainly a charitable institution, although it receives compensation for attendance from those who are able to pay. The medical service is free. The plaintiff has brought this action against the defendant based upon the act of a coroner’s physician of the city of Hew York in performing an autopsy upon the body of her son who was a patient in the hospital and died there on the 3d of October, 1906, The cause of action seems to be based upon what the brief of the learned counsel for the respondent states was a violation of the defendant’s express duty and obligation, and implied undertaking to deliver the body of John Darcy after liis decease to this plaintiff in such a condition as it might be at the time of his decease.
It appears from the evidence that John Darcy, the plaintiff’s son, was taken sick prior to the 15th of July, 1906, and on the twenty-
This was the plaintiff’s case, and I think it disclosed no cause of action. There was no evidence that the hospital authorities, or those- for whose acts the corporation was responsible, performed this autopsy, had anything to do with or were responsible for it, except so far as the board of health and the coroner’s office were informed of the death of the patient in the hospital. This certainly imposed no liability upon the corporation. There was no evidence that a false statement was made to the coroner or to the board of health, or that anything was said or done to indued the public authorities to take charge of the case or perform an autopsy. The bare-fact that the hospital authorities informed the coroner that a death had taken place- in the hospital imposes no liability upon the hospital for the acts of the public authorities taken upon their own responsibility as to the subsequent disposition of the remains.
A motion to dismiss having been denied, the superintendent of the hospital testified that Dr. Bovaird, who was the attending physician, had desired an autopsy and had requested the plaintiff to consent thereto, but she had refused. Dr. Cooke, the house physician, testified that he had charge of the case, but was unable to determine the cause of death; that he telephoned to the board of health and subsequently called up the coroner’s office. He was asked what communication lie made to these authorities, but his statements were excluded upon the objection of the plaintiff. The
The sole ground upon which there could be any liability was the fact that the hospital authorities had made a false report to the coroner, and thus induced him to make an autopsy when none was justified by the symptoms of the patient. The coroner was a public officer in whom was reposed the duty of investigating the cause of death where any person should die in a suspicious or unusual manner, and in such a case it was his duty to require one of the coroner’s physicians to view the body of the deceased or perform an autopsy thereon as may be required. (Consol. Act [Laws of 1882, chap. 410], § 1773.) And by section 1775 of that act (as amd. by Laws of .1895, chap. 846) it was made the duty of any citizen who should become' aware of the death of any person who died in a suspicious or unusual manner to report the death forthwith ^to one of the coroners, or to the clerk in attendance at the coroners’ office, or as ;therein prescribed, and any person who willfully neglected or refused to report such death to the coroner or clerk as aforesaid.should be adjudged guilty of a misdemeanor. By subdivision 2 of section 1776 (as amd. by Laws of 1895, chap..846) it is provided that any person, except the coroner, who shall willfully touch, remove or dis
It follows that the judgment appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Patterson, P. J., McLaughlin, Clarke and Houghton, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.