122 Mo. App. 675 | Mo. Ct. App. | 1907
The plaintiff was a patient at the defendant’s hospital, whither he had gone to have a surgical operation performed upon him. While yet under the influence of an anesthetic, administered for the purpose of the operation and after the performance of the operation, he was placed in the charge and care of one or more of defendant’s nurses, who, it is charged, were not competent and by reason thereof they permitted him to be severely burned on the legs by rubber bottles filled with hot water whereby he was painfully and permanently injured. He brought the present action against
Serious injury to plaintiff was shown and the defendant’s main contention is that it is a benevolent or charitable institution and as such is not liable to an action for damages caused by the acts of its employees; that, as such an institution, it is exempt from application of the doctrine of respondeat superior. Defendant insists that it is neither liable for the negligence of its servants, nor for its own negligence, if any, in undertaking to select competent servants. Upon the other hand, the plaintiff contends that there is liability, if there was negligence either of the servant, or of the defendant in selecting a competent servant.
We will say, at the outset, that if defendant’s liability is to be ascribed to the negligence of its nurses, the manner of his injury was such as tó authorize the rule of res ipsa loquitur to be invoked. [Olsen v. Railroad, 152 Mo. 426; Johnson v. Railroad, 104 Mo. App. 588; Dougherty v. Railroad, 9 Mo. App. 478.] And if such liability is to be based upon the negligence of defendant in selecting competent nurses, that rule will also apply. For, in either case, the injury is, of itself, a sufficient showing, unexplained, that it resulted from one or the other of these sources of negligence, and we see no reason why the defendant (if liable at all) should not be held to be obliged to exculpate itself by showing, in the latter instance, that it had used proper care in the selection of its nurses, as it would in the former by showing that the nurses had not themselves been negligent.
If the questions made in this case have been heretofore decided in this State, it has escaped our attention. No case has been cited. That of Murtaugh v. City of St. Louis, 44 Mo. 479, involved the liability of a municipality for injuries received in a city hospital and it was held that the city was not liable. The decision is put upon the ground that a city is not liable for acts of its officers
We will assume that the evidence tends to show the plaintiff was injured either by the negligence of one of defendant’s nurses or by her incompetence. If by the latter, we will assume, for the purpose of disposing of the case, that there is enough in the record to justify a verdict that the defendant was careless in selecting her. But as, in our opinion, the defendant is neither liable for the negligence of one of its employees, nor for its own negligence in selecting an incompetent employee, it can make no difference which of the two acts caused the injury. Every member of the public is interested in the building up and maintenance of a charitable institution designed for the alleviation of human suffering; and every one may be supposed to be concerned in such institution, and to be a party to a line of action or conduct which would disable every other from doing anything which has a tendency to prevent the institution from performing the functions intended by its founder. The State itself is concerned that its citizens may be restored to health, and to that end may have places always open where those in need may obtain relief. So it may be said that any citizen who accepts the service of such institution (it making no difference whether in any special instance he pays his way) does so upon the ground, or the implied assurance, that he will assert no com
The question arose in England and was decided in the House of Lords. [Heriot’s Hospital v. Ross, 12 Clark & F. 507.] In that case Heriot, a jeweler, by his will, in the year 1623, left a large part of his estate to
It seems clear to us that those cases, and others of like character, should not be thought to be in conflict with those which have steadily maintained the rule exempting the diversion of funds set apart for the support of charitable institutions. We have not befen advised of any case in England which has doubted the authority
In this country, whatever conflict in the authorities may appear, has arisen from applying rules to charities which (as we have just seen) were laid down as governing an entirely different class of cases —■ cases clearly involving governmental function, or substitutes for private enterprise. A fund arising from charges against shipowners for use of docks for landing, unloading and storing freight; a fund arising from toll taken of those using a public highway, and the like, are matters of business, or, are of quasi-governmental concern, which bear no likeness to the funds which are provided by the generosity of donors for the perpetual alleviation of suffering and for the betterment of the health and moral being of mankind. In the former class, it may be well enough to say, that the law intended the fund to make good an injury which its managers may inflict. But in the latter, it would be against every principle of right and an outrage on justice to deplete a fund set aside for perpetual charity, by using it in paying damages caused
To repeat a thought already suggested: every one, in the present or the future, coming within the object of a charity, has a right to the enjoyment of its benefits; and no one has a right to appropriate to himself in settlement of claims, the fund whereby those benefits are' secured. To permit it to be done would be, not only setting aside the purpose of the donor, but would, in its results, allow the claim of one person to exclude the rights of all others who may come after him.
It would be a matter of grave concern and regret if funds set apart for support of our charitable institutions should be made subject to' the assaults of the damage-claimant, and be called upon, not only for compensatory recompense, but to stand for punishment in the way of exemplary damages. Especially would it strike one as unfortunate, when it is realized that such claimant has his primary right to hold to the strictest accountability the individual who does him the injury for which he makes complaint; and that in denying him the right to impoverish benevolence we do not deny him a remedy against the actual wrongdoer.
So the weight of authority in this country supports
We have found but one case (Glavin v. Rhode Island Hospital, 12 R. I. 411) which takes ground against the view we have endeavored to set forth; and that does not do so in such pronounced way as has- been said. It is there conceded (p. 428) that only the income of the institution could be held. But whatever breadth the case may be thought to have, we learn from Parks v. University, supra, that the Legislature of the State of Rhode Island has since nullified the effect of the decision.
In the two cases last cited from the Supreme Court of Massachusetts, that court, while upholding the doctrine as stated by us, yet makes use of language in the opinions which leaves room for an inference that a liability might attach if the corporation had. been negligent in selecting its surgeons in the one case and its superintendent in the other. The case of Hearns v. Waterbury Hospital, 66 Conn. 98, 123-127, seems to concede that there would be a liability for negligence in selecting employees, but no liability for the negligence of the employees themselves, if selected with due care.
But it is manifest that if we uphold a rule which would make an institution of charity liable to a patient who has been injured by an incompetent servant, negligently selected, we destroy the principle we have endeavored to make plain, that charitable trust funds cannot be diverted from the purposes of the donor. For it can make no difference, so far as the integrity of the fund
There are authorities which very properly hold that where ship companies keep a physician on board (even though required to do so by law) to serve those who may choose to call him, he is not to be regarded as the company’s servant, since his mode and manner of service is not under the control of the company. And that physicians and nurses which may be provided by railAvay companies at their hospitals (or the hospitals of employees) are not, for the same reason, the servants .of the railroad. They are not charities, but are nothing more nor less than business associations formed for business purposes. [Haggerty v. Railway, supra.] But cases of that class do not reach the question here involved. For decisive considerations which arise in the one are not found in the other.
Plaintiff refuses to concede that the defendant is a charity hospital. If it is not, it would be liable to this action though such institutions were exempt. We are, however, of the opinion that it is a charitable institution. It is established under chapter 12, article 11, Revised Statutes 1899, providing for the organization of benevolent, religious, scientific, etc., associations. Its charter provides that, “The object of this association shall be to conduct and control the institution known as the ‘University Hospital,’ now oAned and controlled by the University Medical College of Kansas City, to provide medical treatment free of charge for the poor, and to train and educate professional nurses, and to confer upon them a degree.” There was no stock, nor dividends, and everything realized from an income by payments from paying patients went to the improvement of the hospital and the maintenance of an equipment. Surgeons and physicians made no charge and people who could not pay, even for board, were, by the rules,
Concluding, as we have, that the defendant is not liable to the action, and that plaintiff’s remedy is against those who may have inflicted the injury upon him,' we reverse the judgment.