125 Me. 12 | Me. | 1925
The plaintiffs are wife and husband. The defendant is a surgeon and physician who owned, controlled and managed a hospital in May, 1918. In that month a physician residing and practicing his profession in the village where the hospital was situated brought the female plaintiff to the hospital to be a patient during her period of childbirth which was then approaching.
According to the testimony of the defendant he had nothing to do with Mrs. Mills’ case except to supply the hospital and nurses, that he did not treat the case, that Mrs. Mills was in no sense his patient, and that he gave no directions concerning her treatment, but, on the contrary, that the physician who brought her to the hospital was her attending physician. This attending physician frankly testified that Mrs. Mills was his patient during her stay at the hospital.
The original declarations charged that the defendant was employed as a physician and surgeon to attend Mrs. Mills, in her approaching illness, and that her injuries were the result of his negligence, or the negligence of those who were his servants, in that the defendant, by his servants, who were nurses at the hospital, ‘ ‘improperly, unintelligently, and unskillfully, and carelessly and negligently washed and bathed the body of the plaintiff” (Mrs. Mills) “with an excessive and dangerous amount of bichloride of mercury.”
At the trial term in the court below the plaintiffs offered amendments to their declarations which omitted to charge that the defendant’s negligence as a physician and surgeon, through his servants, was the cause of the injuries complained against, but did charge that the defendant held himself out as conducting and maintaining a competent and rehable hospital, employing nurses and attendants
To the granting of these amendments the defendant objected and under this objection exceptions were allowed. The defendant claims that the amendments set forth a new and different cause of action.
Exceptions.
It is quite apparent that the original declarations charged the defendant with liability in his capacity as a physician and surgeon, while the amended declarations charge him with liability as proprietor and manager of a hospital, regardless of the question whether he was acting as a medical man or a layman.
Sustaining and adopting the rule declared in Smith v. Palmer, 6 Cush., 513, our court, in Limerick National Bank v. Jenness, 116 Maine, 28, held that new counts are not to be regarded as for a new cause of action when the plaintiff in all the counts attempts to assert rights and enforce claims growing out of the same transaction, act, agreement or contract, however great may be the difference in the form of liability, as contained in the new counts, from that stated in the original counts.
The statements of the liability of a defendant may vary when the wrong done and the loss occurring are the same. McConnell v. Leighton, 74 Maine, 415.
We hold that by virtue of the rules thus enunciated the amendments were allowable and the defendant takes nothing by his exceptions.
Motion.
As both actions depend upon the same claim we will, for convenience, now deal only with the case of Mrs. Mills. . She claims
Exceptions overruled.
Motions for new trial sustained.