Richardson v. Dumas, 64 So. 459

64 So. 459 | Miss. | 1914

Reed, J.,

delivered the opinion of the court.

Matthew Richardson, aged about nineteen years, seriously ill with a fever, was taken by appellant, his father, for treatment tó the private sanitarium owned and operated for profit in the city of Natchez hy appellee, a practicing physician. Appellee agreed with appellant, for a price named, to give his son all the attention required, and to “furnish him with a trained nurse each night and day.” The young man was very ill and became delirious. He was taken to the sanitarium on a Sunday. His father visited him on the next day, Monday, and again on the following (Tuesday) night, and left him shortly before ten o ’clock. He was then still delirious, and his condition was known to the nurse in charge. About twelve o’clock on the same night Matthew was found on the pavement in the back yard of the sanitarium. He wás without clothing. His gown was hanging from a window of the sanitarium above him, which was open and unscreened. Apparently he had fallen from the window to the pavement, a distance of about nineteen feet. He was in a distressed physical condition, a bruise was found in his chest, and there was an offensive discharge from his body. He died the following morning. When the testimony for plaintiff was all introduced, the trial court sustained defendant’s motion to exclude the evidence, and thereupon directed a verdict for defendant, on the ground that the evidence did not show any liability.

It has been decided that the owner or proprietor of a private hospital or sanitarium, operated for profit, which is not charitable, is liable in damages for the negligence of his employees. Stanley v. Schumpert, 117 La. 255, 41 So. 565, 6 L. R. A. (N. S.), 306, 116 Am. St. Rep. 202, 8 Ann. Cas. 1044; Galesburg Sanitarium v. Jacobson, 103 Ill. App. 26; Brown v. La Société Francaise, etc., 138 Cal. 475, 71 Pac. 516; Ward v. St. Vincent’s Hospital, 39 App. Div. 624, 57 N. Y. Supp. 784. This rule rests upon the general doctrine that a master is responsible for the torts of his servant in the scope of his employment.

The court erred in not submitting this case to the jury. Matthew Richardson, the patient, was under the control and care of appellee and Ms employee, the nurse. Under the contract it was the duty of appellee to give the patient all the attention required. The facts presented b.y the evidence, the very nature of the occurrence, shows a prvmct, facie case of negligence in failing to exercise due care in nursing and looking after the patient.

Our attention has been called by counsel for appellee in his brief to the failure of appellant to amend his declaration by inserting the word “ caused” in the place of the words “contributed to.” It does not appear from the record that this change was actually made in the declaration. ¥e do not see, however, that this can be of any avail in this appeal to appellee. We quote the following from the bill of exceptions: “Thereupon the plaintiff asked leave of the court to amend his declaration by inserting the word ‘caused,’ instead of the words ‘contributed to,’ in the sixth paragraph of declaration, and the court stated that the amendment might be made, but nevertheless the motion would be sustained, and thereupon the court sustained the motion.” The court treated the declaration as if amended. The request for leave to amend, the permission, and the sustaining of the motion directing a verdict for appellee were all considered and acted on together, and together became the same and one continuous act.

Reversed and remanded.