Grueninger v. President & Fellows of Harvard College
178 N.E.2d 917
Mass.
1961
Check Treatment
Spalding, J.

Thе relevant averments of the plaintiff’s amended declaration are these. Prior to March 18, 1958, the defendant “acting in its . . . [proprietary] and private capacity” agreed for a fee to provide medical care and attention to the plaintiff, if needed, pursuant to an insurance plan to which the plaintiff had subscribed. The defendant owned and operated the insurance plan, which “was nоt a charitable endeavor,” but “was an enterprise entered into by the defendant for profit ... as а commercial venture.” From March 18, 1958, to August 22, 1958, when the agreement was in force, the defendant’s employees provided medical care to the plaintiff at its facilities maintained for the use of thosе subscribing to the *339 insurance plan. The defendant, for consideration, “procured the services of thе defendant, its agents, servants or employees, to examine, treat and cure the plaintiff’s illness and/or disease.” The defendant “undertook the examination, diagnosis, treatment, care and cure of thе plaintiff’s illness and/or disease, and thereby owed the plaintiff the duty of reasonable ‍‌​​​‌‌​‌‌​‌‌​​​‌​‌‌​​​​‌‌‌‌‌​‌​​​‌​‌‌​‌‌‌‌​‌‌‌​​‍care, skill and аttention in that respect.” But the defendant’s employees, neglecting to exercise reasonable care, failed to “ascertain the true nature and extent of the plaintiff’s illness and/or disease and to treat it properly.” As a result of such failure the plaintiff sustained severe injuries, “including total and permanent loss of the sight of both eyes.”

The defendant demurred, and its demurrer was sustained. The plaintiff apрealed. The grounds assigned in the demurrer were as follows: (1) The matters contained in the declaration are insufficient in law to enable the plaintiff to maintain his action. (2) The matters contained in the deсlaration are insufficient in law inasmuch as it appears from the act of incorporation оf the defendant of the Massachusetts Bay Colony on May 31, 1650, and from the Constitution of the Commonwealth that the defendant is a domestic charitable corporation, and the declaration failed to allege facts which would render such a corporation liable. 1 (3) The declaration does not state concisely and with substantial certainty the substantive ‍‌​​​‌‌​‌‌​‌‌​​​‌​‌‌​​​​‌‌‌‌‌​‌​​​‌​‌‌​‌‌‌‌​‌‌‌​​‍facts necessary to constitute a cause of action as required by G-. L. c. 231, § 7, Second.

1. The first and second grounds will be considered together, for the оnly reason urged for the declaration being insufficient in law is that.the defendant was a charitable cоrporation and hence- not liable. Charitable immunity is an affirmative defence (Barrett v. Brooks Hosp. Inc. 338 Mass. 754, 756) and matters of defence are not open on demurrer. Boston Nutrition Soc. Inc. v. Stare, 342 Mass. 439, 443. Wé need not decide whether, where the dec *340 laration (unlike that in Reavey v. Guild of St. Agnes, 284 Mass. 300) contains no allеgation that the defendant is a public charitable corporation, the question of charitablе immunity is before us on a demurrer which refers to the act of incorporation and to a portion оf the Constitution which mentions the defendant. Since the result would be the same, we assume that the question would be open.. “A charitable corporation is not liable for negligence in the course of aсtivities ‍‌​​​‌‌​‌‌​‌‌​​​‌​‌‌​​​​‌‌‌‌‌​‌​​​‌​‌‌​‌‌‌‌​‌‌‌​​‍within its corporate powers carried on to accomplish directly its charitable purposes. This is true even though such activities incidentally yield revenue. On the other hand, there is liability for negligence in the course of activities incidental to the corporate powers but primarily commercial in character, though carried on to obtain revenue to be used for the charitable рurposes of the corporation.” Reavey v. Guild of St. Agnes, 284 Mass. 300, 301-302. We are of opinion that the allegations in the declaration, although somewhat general in nature, were sufficient averment that the defendant’s activities whiсh gave rise to this action were primarily commercial in nature. If the plaintiff can establish that at thе trial, the defence of charitable immunity would fail. McKay v. Morgan Memorial Coop. Indus. & Stores, Inc. 272 Mass. 121, 124, and eases cited. The demurrer, therefore, could ‍‌​​​‌‌​‌‌​‌‌​​​‌​‌‌​​​​‌‌‌‌‌​‌​​​‌​‌‌​‌‌‌‌​‌‌‌​​‍not be sustained on the first and second grounds.

2. The third ground of demurrer is based on G. L. c. 231, § 7, Second, which provides thаt “The declaration shall state concisely and with substantial certainty the substantive facts necessаry to constitute the cause of action.” In essence the declaration is in tort for malpraсtice. Coburn v. Moore, 320 Mass. 116, 117-118. “Great detail in pleading well known torts ‍‌​​​‌‌​‌‌​‌‌​​​‌​‌‌​​​​‌‌‌‌‌​‌​​​‌​‌‌​‌‌‌‌​‌‌‌​​‍or infringement of legal rights is not required.” Caverno v. Fellows, 286 Mass. 440, 443. Details which would be neсessary in evidence, such as the nature of the plaintiff’s illness, the acts or omissions constituting negligence, the precise time and place of the alleged tortious conduct, and the persons who рarticipated in it, if not included in the declaration, are not fatal. See *341 Flye v. Hall, 224 Mass. 528, 529. The declaration undеr consideration leaves much to be desired. Indeed, it goes to the verge in vagueness. But it does statе in skeleton form a cause of action. Such information as the defendant may lack to prepare its case for trial can be obtained by particulars and discovery. We are of opinion that the order sustaining the demurrer should be reversed.

So ordered.

Notes

1

The demurrer referred specifically to the pertinent portions of the records of the Massachusetts Bay Colony and of the Constitution of the Commonwealth.