Kuglich v. Fowle

176 Wis. 60 | Wis. | 1922

Rosenberry, J.

The first contention of the defendants is that there is not sufficient evidence to sustain the finding of the jury to the effect that the defendants were negligent. In view of the fact that there must be-a new trial, we .shall not discuss or comment upon the evidence; suffice it to say that we have carefully examined it and are of opinion that there was sufficient evidence in the record to’ sustain the verdict of the jury.

The defendants appeared separately at the trial and each separately denied the allegations of the complaint. Upon the trial the attorney for the defendant Hospital asked several questions for the purpose of establishing the exact arrangement between the O'gden Hospital, a separate corporation, and the defendant Fowle, by whom the hospital was operated. The court sustained objections to these questions. In the answer of the Flospital appears the following allegation :

“This defendant admits that the Ogden-FIospital is a corporation 'organized and existing under and by virtue of the laws of the state of Wisconsin; but denies that as such corporation it at the times mentioned in said complaint operated, directed, or controlled for hire a hospital for the benefit of medical or surgical cases, or for any purposes whatsoever as alleged in the complaint.”

Upon the motion for a new trial there was filed on behalf of the defendant Hospital an affidavit which is uncon-tradicted, from which it appears that the Ogden Hospital leases the premises to the defendant Fowle, receives'a stated sum as rental, and that the relation between the Ogden Hospital and Fowle is that of landlord and tenant; that the hospital is operated by the defendant Fowle at his own risk as to loss or gain, and that the corporation does not share in the profits or losses of the enterprise and has no interest therein other than as lessor.. On behalf of the plaintiff it is urged that it appears from the record that the defendant Fowle was a physician and surgeon; that he was in charge of the hospital; that he was also the secretary and treasurer of the Ogden Hospital; that upon the day on which the plaintiff entered the hos'pital her husband paid to Dr. Fowle a sum to cover hospital services. Admitting all of these facts to be true, it-does not follow that the Ogden Hospital ever undertook to render either hospital or medical services to the plaintiff. The word “hospital” is used in many senses, and the fact that the plaintiff paid Dr.. Fowle a stated sum for hospital services is no proof that the Ogden Hospital undertook to render service to the plaintiff. The mere fact that the word “hospital” is used in the corporate name does not alter to any extent the relation of the'parties. Under the pleadings the defendant Hospital was entitled to show that it did not undertake to render services and that it was merely a lessor of the premises and not in any way concerned with the treatment and care of the plaintiff. The court erred, therefore, in rejecting the evidence offered to prove the real relationship existing between the defendants, and further erred in not granting a new trial.

While the rejection of the testimony offered by the Hospital was not error as to the defendant Fowle, nevertheless the case was tried against both defendants, both were found guilty of negligence, and it is impossible to say what the result of the trial would have been had the court permitted the true relationship of the defendants to be established. After careful consideration we are of the opinion that there should be a new trial.

By the Court. — Judgment reversed, and cause remanded for a new trial.