Payne v. Garvey

Annotate this Case

142 S.E.2d 159 (1965)

264 N.C. 593

Beulah PAYNE v. F. K. GARVEY, Frank Sohmer, David Gayer and the North Carolina Baptist Hospitals, Inc.

No. 848.

Supreme Court of North Carolina.

June 2, 1965.

*161 Dalton & Long, by W. R. Dalton, Jr., Burlington, for plaintiff appellant.

Smith, Moore, Smith, Schell & Hunter, by Richmond G. Bernhardt, Jr., Greensboro, for defendant Dr. Frank Sohmer, appellee.

Womble, Carlyle, Sandridge & Rice, by Irving E. Carlyle, Winston-Salem, Sapp & Sapp, by Armistead W. Sapp, Greensboro, for North Carolina Baptist Hospitals, Inc., appellee.


The plaintiff admits the defendant Hospital is an eleemosynary institution, and perhaps not responsible under respondeat superior rules for the negligent acts of its employees. She does contend, however, that the hospital was under a positive duty to furnish safe equipment, including thermometers, for the use of employees in treating the hospital patients. If we accept the proposition that the hospital was charged with that duty, its exercise would require due care in the selection, inspection, and maintenance of the equipment. At most, the hospital was required to furnish standard equipment and to make reasonable inspection and remedy any defects discoverable by such inspection. The hospital did not guarantee a glass thermometer against breakage. Wherein the hospital failed to exercise due care in any particular, the evidence does not disclose.

Something more than an accident and injury is necessary to make out a case of actionable negligence against either the hospital or Dr. Sohmer. In fact, Dr. Sohmer did no more than have the plaintiff admitted to the hospital.

The plaintiff's own witness testified the student nurse had been instructed in the simple procedure of taking temperature and perhaps had several months experience in that procedure. The evidence in the light most favorable to the plaintiff does not bridge the hiatus between the accident and the injury. Negligent causation does not appear. The demurrer to the evidence was properly sustained. Judgment dismissing the action was required.