Wallwork v. City of Nashville. had wished to charge that the city of Atlanta maintained and operated the Grady Hospital for private gain and profit, and that to this end it charged fees of all of its patients, it would have been very easy to have made that distinct averment. For the Grady Hospital to charge fees from some of its patients is not at all inconsistent with its character as a public institution and one operated by the municipal corporation in the performance of its governmental duties. Under the authority of the case of Love v. City of Atlanta, supra, the court below ruled rightly in sustaining the demurrer and dismissing the case. See, in this connection, 2 Dillon on Municipal Corporations, section 977, and cases cited, especially that of Maxmilian v. New York, 62 N. Y., 160, 20 Am. R., 468, and Elliott on Mun. Corp. 327." Learned counsel for the plaintiff have cited no authorities taking a contrary view to that expressed in the foregoing cases, and, upon both reason and authority, we are of the opinion that the court committed no error in sustaining a directed verdict in favor of the city and the hospital commissioners. There was no allegation or claim that the city or the commissioners did not exercise ordinary care in the selection of its employees. No error is assigned upon the action of the court in directing a verdict as to Miss Wickham. The only remaining question is was there any evidence to support the verdict of the jury in exonerating Miss Wright from liability? There is no direct evidence that Miss Wright placed the hot water bottle on the bed. Henry Wallwork, a cousin of the plaintiff, testified that he went to the hospital in the automobile with plaintiff and her father and mother. This witness further testified: Wallwork v. City of Nashville. "Q. Did you examine the hot water bottle? A. Yes, sir. "Q. Was it hot? A. Yes, sir. "Q. How hot was it? A. It was so hot you couldn't hold your hand on it. "Q. Did you call the attention of any one out there in the hospital to that fact? A. I told that colored fellow that was in there, and he said he didn't have nothing to do with it, and he said he would tell the nurse, and she came in there, and she said it was supposed to be in there. I told her it wasn't supposed to be that hot. She said that wouldn't hurt her like she was, asleep. "Q. Which one of these nurses was it you were talking to? A. Miss Wright. "Q. You know Miss Wright, do you? A. Yes, sir. "Q. And when she came in there and you called her attention to the fact that this hot water bottle was too hot, that it ought not to be in the bed when it was that hot, did she examine it? A. No, sir. "Q. Just said it ought to be there, and it wouldn't hurt this patient while she was asleep? A. Yes, sir. "By the Court: "Q. Which one was it? A. Miss Wright." The substance of his testimony is that he called Miss Wright's attention to the fact that the water bottle was too hot, to which she replied (without examining it), “it was supposed to be in there." This alleged act of negligence on the part of Miss Wright cannot be the basis of a recovery for the reason that no such allegation of negligence was charged in the declaration. This witness further testified that he did not know who placed the bottle on the bed. Wallwork v. City of Nashville. Neither Dr. Parrish, nor any of the other members of the plaintiff's family testified as to the presence of this witness. A. H. Wallwork, father of the plaintiff, testified: "Dr. Parrish, my wife, Louise, and I went to the hospital in a car together, and I don't think any other friend or member of the family came to the hospital the morning Louise was operated on." The plaintiff, in her testimony, said: "I was carried to the hospital, City Hospital, for an operation by Dr. Fessey. My father and mother and Dr. Parrish carried me to the hospital." Mrs. Wallwork, the mother of plaintiff, testified: "My husband was only friend or member of family who joined me at hospital before my daughter was carried to operat ing room." The foregoing evidence tends to negative the idea that Henry Wallwork accompanied plaintiff and her family to the hospital as testified to by him. He was the last witness introduced for the plaintiff. In view of the fact that the jury, the trial court and the court of civil appeals rejected this evidence, we cannot say that they did so arbitrarily, as insisted by counsel for the plaintiff, when the foregoing testimony and circumstances detailed above are taken into consideration. Excluding this evidence there is nothing upon which this wrong can be charged to Miss Wright. Dr. Parrish testified that it was the duty of Miss Wright and Miss Wickham to place the hot water bottle properly, and, such being their duty, it may be presumed that one or the other so placed it. But we do not construe Dr. Parrish's testimony to mean that it was a joint duty, but Wallwork v. City of Nashville. simply that it was the duty of one of the nurses in charge of this ward to prepare and place the bottle. The plaintiff did not show on which the placing of this particular bottle devolved. Hence we cannot say that Miss Wright was responsible for the injury. Mrs. Wallwork's testimony to the effect that she heard Miss Wickham say that she did not place the bottle on the bed is not substantive evidence to the effect that Miss Wickham did not so place it, nor is it evidence imputing to Miss Wright the responsibility for the wrong. Upon the whole, we find no error in the judgment of the court of civil appeals, and it will be affirmed with costs. INDEX. ACTION. 1. Persons separately affected by tort must sue separately. 2. Parties suing jointly for joint injury cannot join separate in- In an action by the owners of a life estate, in which the owners of ACTIONS, RIGHT AND CAUSE. 1. Waters and water courses. Prescription runs against higher owner 2. Auctions and Auctioneers. Bids by auctioneer, under orders of Where the owners of a farm authorized plaintiffs, who were real |