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Winter v. Department of Health of City of New York

Supreme Court of New York, Appellate Division

May 29, 1912

NAN WINTER, Appellant,
v.
THE DEPARTMENT OF HEALTH OF THE CITY OF NEW YORK, Respondent.

APPEAL by the plaintiff, Nan Winter, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 21st day of November, 1911, upon the dismissal of the complaint by direction of the court at the close of plaintiff's case upon a trial at the Kings County Trial Term.

COUNSEL

Ralph G. Barclay [Robert Stewart with him on the brief], for the appellant.

James D. Bell [Sanders Shanks and Archibald R. Watson with him on the brief], for the respondent.

CARR, J.:

On the trial of this case the plaintiff's complaint was dismissed at the close of her evidence, and from the judgment of dismissal the plaintiff now appeals.

It appears from the proofs taken at the trial that the plaintiff was engaged by the defendant as a trained nurse in a

Page 105

hospital which it maintained for contagious diseases in the borough of Brooklyn. She applied for employment at the hospital in question, and there met a Miss Murphy, who was then in charge of said hospital as 'Supervisor of nurses.' A conversation took place between her and Miss Murphy, in which the latter stated the rate of compensation payable to trained nurses employed in the said hospital as forty dollars a month with board, with an increase to forty-five dollars per month, and at the end of a year and a half's service fifty dollars a month. The plaintiff demurred to these rates, on the ground that they were too small for the risk that was taken by the nurses in a contagious disease hospital, and the supervising nurse answered, 'Remember though, we take care of you if you contract disease, and the salary will continue till you are able to work again.'

The plaintiff thereupon entered upon employment as a trained nurse in the hospital in question, and her name was placed upon the payroll of the defendant. While she was engaged in such service, she injured one of her fingers; the injury progressed and her hand and arm became infected with sepsis. The defendant furnished a surgeon who amputated the injured finger. The trouble still continued, and the plaintiff became dangerously ill and was removed from the Contagious Diseases Hospital to the Kings County Hospital, which is an institution maintained by another department of the government of the city of New York, namely, the department of charities. While in the latter institution, the illness of the plaintiff became so severe that her life was imperiled, and at the suggestion of the physician in charge, the plaintiff, through her mother, hired trained nurses for night and day attendance upon her. After she became sufficiently well to be removed from this hospital, a period of convalescence set in. During the time she was in the hospital, as well as for a number of months while she was convalescing, her name continued upon the payroll of the defendant, and she received the monthly compensation agreed upon. She finally abandoned her position as nurse, and did not return to service under the defendant.

She brought this action for a breach of contract to recover

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the expenses of hiring the day and night trained nurses while she was in the Kings County Hospital, and further expenses attendant upon her period of convalescence. It further appeared from the proofs that the hiring of these outside nurses to care for the plaintiff while she was in the Kings County Hospital was a matter of necessity, as that institution was unable to provide her with the attendance that was absolutely requisite, considering her gravely serious condition.

The learned trial court was of opinion that the supervising nurse, Miss Murphy, had no power to make the contract upon which the plaintiff claims to recover for an alleged breach thereof. He held, further, that it was incumbent upon the plaintiff to show affirmatively the existence of such a power in the supervising nurse.

Miss Murphy was called as a witness by the plaintiff, and she did not contradict the story of the hiring as told by the plaintiff herself. She testified, however, that there was a schedule of salaries for nurses at the hospital in question, and that the furnishing of board and lodging to the nurses was included in the compensation to be paid. She was asked by the plaintiff's counsel if there was anything further in regard to any of the nurses who might be taken ill while in the performance ...


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