127 Ky. 564 | Ky. Ct. App. | 1907
Opinion of the Court by
Affirming.
The appellee, Addie Hammock, recovered a verdict and judgment'for $1,000. damages in-the court below against the appellant, University of Louisville, .for
Failing to obtain in the lower conrt a new trial, appellant asks of this court a reversal of the judgment- in quéstion upon three grounds: (1) That it was not sued in its true corporate name; (2) that no negligence was shown, and that the verdict returned by the jury was contrary to law and flagrantly against the evidence; (3) that appellant is a charitable institution and by reason thereof exempt from liability for the torts of its agents or servants.
As to the first proposition, little need be said. Obviously . appellant was sued and judgment recovered against it as the “University of Louisville,” when its true corporate name was and is the ‘ ‘ President and Trustees of the University of Louisville,” but the misnomer cannot be objected to for the first time on appeal. It should have been made in the circuit court by answer or affidavit in the nature of a plea in abatement, setting forth the misnomer and disclosing the true name of the defendant. When this is done, the plaintiff may amend his petition, and then proceed against the defendant in his true name, L. & N. R. R. Co. v. Hall, 12 Bush, 131; Teets v. Snider Heading Mfg. Co., 120 Ky. 653, 87 S. W. 803, 27 Ky. Law Rep. 1061; Pike, Morgan & Co. v. Wathen, 78 S. W. 137, 25 Ky. Law Rep. 1264; 14 Ency. of Plead. & Prac. 295. The record shows that the corporation sued was the same corporation that owned and Controlled the hospital in which appellee sus
In our opinion the second contention of appellant is equally without merit. There was testimony conducing to prove negligence on the' part of appellant and its employes in charge of the hospital, and that such negligence was the proximate cause of appellee’s injuries. The facts, as disclosed' by the evideneé, wefe, in substance, that appellee, a married woman, who was laboring under a serious illness, a*nd greatly prostrated thereby, had placed herself in the hospital at the instance of her physician. She was a pay patient, and had the right to expect of appellant and its employes in charge? of the institution careful and skillful nursing and treatment such as her case particularly required. Indeed, the sick leave their homes and enter hospitals because of the superior treatment there promised them. On the day after appellee entered the hospital, its manager received as an inmate thereof a patient known as Dr. Meador, who was at the time afflicted with delirium tremens, a disease resulting from the excessive, habitual 'use of intoxicating liquors. This patient was placed in a room of the hospital on the floor beneath that occupied by appellee. At 10 p. m. of the same day Meador became so uncontrollable that he overawed the single female nurse in whose eharg’e he had been left, and, escaping from his room, passed through the hall of the building and upstairs, talking in a loud voice and using profane language. Upon reaching the upper floor, he entered the room
Appellant’s third contention, that it is a charitable, institution and by reason thereof exempt from liability for the negligence of its servants, is in conflict with more than one decision of this court. The hospital in which appellee received the injuries com
Finding no error in the rulings bf the lower court, the judgment is affirmed. ' '