1 Reported in 136 P.2d 729. This action was brought by respondent, Violet Clampett, against appellant, the Sisters of Charity *Page 653 of the House of Providence in the Territory of Washington, a corporation, to recover damages resulting from a burn received by her while at a hospital operated by appellant. The jury returned a verdict for the respondent. Judgment was entered upon the verdict, from which this appeal is taken.
The theory upon which the action was brought and tried was that the appellant was guilty of administrative negligence in that it furnished, to be used, and there was used, in the treatment of the respondent at appellant's hospital, an electric rubber heating pad which was defective.
The respondent entered the hospital of the appellant November 13, 1941, and the next day an operation was performed upon her. Following the operation, respondent was threatened with pneumonia. On November 17th, her physician ordered that heat be applied to her left shoulder and left chest. At one o'clock in the afternoon, a nurse secured an electric heating pad, wrapped it in a towel and securely pinned it, and applied the pad to the left chest of the respondent. She turned the electric current on what is termed "low" to heat the pad to a temperature of 110°. At eleven o'clock that night, the nurse on duty observed a red streak on the left breast of respondent, which developed into a blister about the size of a nickel. Later more small blisters appeared, the affected area being two and one half to three inches in diameter. This area became infected, and it was treated by her physician, who later removed some scar tissue.
It is the claim of appellant that there was not sufficient evidence to be submitted to the jury that the electric pad was defective and that its challenge thereto should have been sustained.
The type of pad used by appellant is made of rubber and is about nine inches wide and thirteen inches long. *Page 654 Within the pad are two automatic thermostats, one close to each end, and an electric heating unit. The thermostats are bimetal strips with contacts on them. The bimetal strips open with the heat generated by the electric current. The two different metals do not expand the same, and this uneven expanding ratio causes them to bend back and forth, thus opening or breaking the circuit. As the temperature lowers, the contraction causes contact, and the current again flows. At one end of the pad is a rubber tube about thirteen inches long, at the end of which is a switch by which the current is turned on at "low," "medium," or "high," or turned "off." The current comes through a cord attached to the switch, which cord is connected with the ordinary wall or light socket. The literature furnished by the manufacturer states:
"The heating-unit consists of two metallic circuits — one for `low' heat, and one for `medium' heat, the two operating in `parallel' for the `high' or `starting' heat. . . .
"In the open, at ordinary room-temperature the pad will attain approximately the following temperature:
"`low' 110° Fahrenheit "`medium' 120° Fahrenheit "`high' 135° Fahrenheit". . . Both thermostats control temperature on all heats."
The expert witness called by the appellant had examined the pads introduced in evidence as being the kind of pad used on respondent, and testified:
"Q. Did you test it on medium and low? A. Yes. Q. Will you give us the testings on low? . . . A. And on low 124 is the highest and 121 the lowest. Q. What do you mean by that? A. Well, that is on about 14 operations, and the highest test at any one time was 124 and the lowest 121. Q. Now, haven't you got the two confused? A. No. Q. What? A. I gave the medium. 108 to 109. Q. The medium was what? A. 121 to 124.. *Page 655 . . Q. On the low? A. On the low, 108 to 109. There is no cut-out on low. Q. It is just continuous? A. That is continuous heat."
The pads sometimes get out of repair through use, and, when this happens, they will overheat, or, in some instances, they will not heat. If a pad is in good order and properly applied, it will not burn the patient.
The respondent testified that, just before the pad was first applied to her, the nurse stated to an intern who was present that the pad was not working right and there was something wrong with it. The intern took the pad and looked it over and did something with it, but the respondent could not state what this was. Both the nurse and the intern denied that this occurrence took place, but the jury evidently accepted the version of the respondent.
[1] The evidence in the case shows conclusively that there was no negligence on the part of the agents or employees of the appellant as to the manner in which they performed their duties in connection with their care and treatment of the respondent, and it is not claimed by respondent that the appellant was in any way negligent in the selection of such agents or employees. Throughout the trial, the appellant was given the benefit of the limited liability rule accorded to charitable hospitals set forth in Miller v. Sisters of St. Francis, 5 Wash. 2d 204,105 P.2d 32, and later approved in Canney v. Sisters of Charity,15 Wash. 2d 325, 130 P.2d 899. And the trial judge very carefully guarded against any opportunity for the jury to bring in a verdict against the appellant by reason of any negligence of its employees. The facts disclosed by the evidence and the inferences to be drawn therefrom, coupled with the fact that the respondent did receive a burn from the pad used, were sufficient to *Page 656 make it a question for the jury to determine whether the pad was defective.
[2] The appellant urges that the court erred in refusing to admit its proffered evidence that it is a charitable institution. The case was tried and submitted upon the theory that the appellant is a charitable institution and could be liable in damages to respondent only in the event the electric pad was defective. As a matter of fact, proof by appellant that it is a charitable institution would have reached the same result. The evidence offered was therefore immaterial.
[3] The appellant claims there was misconduct of counsel during the trial, in that the attorney for respondent made reference to another case against the appellant, tried shortly before the present case, in which a plaintiff was awarded a verdict because she had been burned by a similar electric pad. During the trial of this case, other references were made to the other case to which no objections were made. During the examination of the jurors in the trial of this case, it developed that one of them had served as a juror in the trial of the other case, but he was accepted by appellant. We do not think any prejudice resulted by the reference to the former case by counsel for respondent.
We have considered the assignments of error in the giving and refusal of instructions to the jury, and we find no error.
Judgment affirmed.
MILLARD, BEALS, BLAKE, and JEFFERS, JJ., concur.