Opinion
No. 124071
Decided September 7, 1966.
False imprisonment — Child in general hospital — Parent requested to obtain dismissal slip — Required to sign note to secure payment for services — Cause of action not established.
Where proof offered is that parent of eight-year-old child was requested to go to cashier's office of a general hospital to obtain a dismissal slip; and because such parent was unauthorized to execute insurance hospitalization forms, the parent was requested to and did sign cognovit note to secure payment of account for services to the child without threat or restraint of any kind; all without the knowledge of such child or that the child was harmed in any way, such proof fails to sustain burden of proof of a cause of action for compensatory damages for unlawful imprisonment.
Mr. David H. Bailie and Mr. Joseph M. Allen, for plaintiff.
Messrs. Bieser, Greer Landis and Mr. Rowan A. Greer, Jr., for defendant.
Plaintiff by her father and next friend, an attorney, sued defendant hospital for false imprisonment. The prayer was for $50,000 compensatory and $50,000 punitive damages. At trial the compensatory prayer was reduced to $500. The court, at the close of plaintiff's case, directed a verdict for defendant. Plaintiff moves for a new trial and requests separate findings of fact and conclusions of law. No memorandum supports the motion.
FINDINGS OF FACT
On March 30, 1964, plaintiff was eight years of age. On that day plaintiff's mother took her to the hospital and signed all the necessary forms. At about 9:30 a. m. on April 1, 1964, the mother came to the hospital and was advised by the head nurse of the pediatric ward that plaintiff's doctor had authorized her release. The nurse directed Mrs. Bailie to go to the cashier's office to get a dismissal slip. Mrs. Bailie had a hospitalization policy with her as to which Mr. Bailie was the insured. Under these circumstances Mrs. Bailie was referred to C. W. Buckley, the credit manager of the hospital. He discussed the financial arrangement problem and gave her alternate forms for Mr. Bailie to execute. These either authorized payment to the hospital direct or payment to the insured. He also asked Mrs. Bailie to sign a cognovit note payable in 30 days, to secure payment of the bill, which she did. She then received a dismissal slip which she took to the head nurse's desk on the floor on which plaintiff was located.
There was no unpleasantness between Mrs. Bailie or any member of the staff of the hospital and particularly Mr. Buckley. There was no threat that unless the bill was paid or secured to be paid that plaintiff could not leave the hospital. There is no evidence that plaintiff was aware of any discussion between her mother and anyone with regard to the account. Mrs. Bailie assisted plaintiff in getting dressed and put in a piece of luggage plaintiff's other things. Mrs. Bailie had mechanical difficulty with her automobile and did not leave the hospital with plaintiff until 10:45 at which time the repairman had brought the automobile to the hospital. This delayed their departure for at least 45 minutes.
We find no reported case in Ohio as to false imprisonment relating to general hospital releases or dismissals. Two elements are uniformly necessary to prove a case in this form of action: (1) detention of the person; (2) unlawfulness of the detention. Malice or motive is not an element. 23 Ohio Jurisprudence 2d 409, Section 5.
Unless a defendant is shown to have acted maliciously or in wanton or reckless disregard of his duties and plaintiff's rights compensatory damages only are recoverable. Compensatory damages include loss of time, the indignity, humiliation and suffering undergone and shame and anguish of mind which has been suffered by reason of the unlawful restraint. 23 Ohio Jurisprudence 2d 436, Section 40.
The instant case is complicated by the fact that the eight year old child was not sui juris. There is an absolute duty of parental obligation for the child's medical attention and nursing care. 41 Ohio Jurisprudence 2d 341, Section 30.
The only reported case disclosed by a search of the Digest System from 1936 to V. 31, 1966, 3rd General Digest is Hoffman v. Clinic Hospital (1938), 213 N.C. 669, 197 S.E. 161. At trial the plaintiff was nonsuited in her action against the hospital. The proof was that plaintiff was told by an employee that she could not leave the hospital until her bill was paid. As a result plaintiff stayed in the hospital about 30 hours after her doctor said she could be discharged. When she did leave there was no attempt to restrain her by word or act, even though the bill was not paid. The court held no cause of action was proved.
There is authority for the fact that an action of false imprisonment may be against a hospital. Harper James Law of Torts V. 1, 226, Sec. 3.7 citing a 1916 and 1924 case and 33 Yale L. J. 891 (1924).
The principle is stated in Section 42, Restatement of Torts 2d ed V. 1, 65:
"There is no liability for intentionally confining another unless the person physically restrained knows of the confinement or is harmed by it."
Harper James ibid, 225, Section 3.6 discusses this principle referring to a leading English case of Herring v. Boyle. The author's conclusion is that the case discussed is supported by common sense and authority, although there is some opinion to the contrary.
There are numerous cases from many jurisdictions involving the detention of employees or customers of retail stores or service establishments relating to defalcations, shoplifting or failure to pay. The latest Ohio reported example of this class we have found is Lester v. Albers Super Market (1952), 94 Ohio App. 313, 114 N.E.2d 529, 51 O. O. 457, 65 Ohio Law Abs. 315. The Court of Appeals reversed and entered final judgment for the defendant. It held that submission to mere verbal direction unaccompanied by force or threat of any character cannot constitute detention of the person. That it is unlawful detention for one to be detained for an unreasonable length of time or under unreasonable circumstances. Further that the burden of proving any such unreasonableness is upon the plaintiff if that becomes material to the case.
Certainly in these days when extensive and extended credit is a way of life, and the necessity of securing accounts to be paid either prior or after or concurrent with purchase or obligation, to say that any employee or agent of a firm or establishment who interviews or converses with another and obtains payment or security for payment thereby makes himself or the employer liable for a false imprisonment suit, would, in effect, destroy an institution generally of great public benefit and utility. Without something unlawful intervening we were not, and are not, so disposed, because it would tend to encourage unwarranted and vexatious litigation.
CONCLUSIONS OF LAW
Plaintiff failed to prove there was a detention of her person by the defendant. That if it could be concluded there was a detention there is a failure of proof that plaintiff was detained for an unreasonable length of time or that the circumstances were unreasonable. That if it could be concluded there was a detention and that the detention was unlawful there is a failure of proof that plaintiff knew of the detention or was harmed in any way by it, resulting in damage without injury, without defendant's incurring liability. That there is a failure of proof of any act of maliciousness giving rise to a claim of punitive damages.
Accordingly an entry affirming the judgment and overruling the motion for new trial is concurrently filed.
Judgment affirmed.