204 A.D. 664 | N.Y. App. Div. | 1923
Lead Opinion
The plaintiff has a verdict of $25,000 for the loss of sight of an eye, resulting from an explosion of chemicals in the course
This case has been before this court and the Court of Appeals upon the sufficiency of the complaint. (Hamburger v. Cornell University, 184 App. Div. 403; affd., 226 N. Y. 625.) The appeal came here from a decision of the Special Term (opinion not reported) overruling a demurrer so far as the ground of objection related to the liability of the defendant as a charitable corporation, upon the authority of Goodman v. Brooklyn Hebrew Orphan Asylum (178 App. Div. 682), but sustaining the demurrer upon the sole ground that Cornell University was a governmental instrument and agency. The order of the Special Term was reversed by this court, Mr. Justice Woodward writing. The opinion incidentally expressed the view that Cornell University was a charitable corporation but the decision of this court was simply to the effect that Cornell University was not administering a governmental activity or function. The order of this court, reversing the Special Term, was affirmed, without opinion, by the Court of Appeals. The report of the decision in that court states: “ The Special Term sustained the demurrer on the ground that defendant was administering a govermnent activity or function and was/ therefore, absolved from liability for the negligence of its servants and agents.” A question certified to the Court of Appeals was: “ Does the complaint state facts sufficient to constitute a cause
The case now comes to us upon the proofs presented at the trial and we have properly before us at this time, unaffected by the previous decision, the question whether Cornell University is a charitable corporation and as such immune from liability to a beneficiary for the negligence of its subordinate servants or for the negligence of its managing officers in employing incompetent servants.
It is the contention of the plaintiff that Cornell University, while it might have been eleemosynary in its foundation, has ' by its activities ceased to be such. It is possible for a corporation
The term “ charitable ” is frequently thought to mean simply the giving of alms, the relief of the poor and the care of the sick and distressed who are unable through poverty to adequately care for themselves. The term has, however, a broader significance denoting all the kindly inclinations which men ought to bear toward each other and which prompt them to promote the general welfare without respect to poverty or riches, class or condition, and free from all invidious distinctions. As used in this general sense the term “ charitable ” has a wide application to gifts proceeding from true benevolence for any purpose favorable to one’s fellow men. In a legal and political sense, however, charitable purposes are confined within narrower limits and not all such benefactions, although they may meet the test of being the result of a true benevolent disposition, are legal charities. (Buchanan v. Kennard, 234 Mo. 117; 136 S. W. Rep. 415; Wilson v. First National Bank of Independence, 164 Ia. 402; 145 N. W. Rep. 948; Perin v. Carey, 24 How. [U. S.] 465.) “ The essential elements of a public charity are that it is not confined to privileged individuals but is open, under needful and proper regulations, to the indefinite public. It is this indefinite, unrestricted quality that gives it its public character.” (Doyle v. Whalen, 87 Me. 414, 425.) It manifests itself in benefactions actuated by love for mankind as distinguished from the love of kindred or intimate friends or close associates. (Matter of Beekman, 232 N. Y. 365.) It represents a gift of pure benevolence for a public purpose, unstained by personal, private or selfish considerations. The definition of Mr. Binney has often been cited with approval. (People ex rel. New York Inst. for Blind v. Fitch, 154 N. Y. 14, 32.) He defines a charitable or pious gift to be “ whatever is given for the love of God, or for the love of your neighbor, in the catholic and universal sense — given from these motives and to these ends — free from the stain or taint of every consideration that is personal, private or selfish.” (See Price v. Maxwell, 28 Penn. St. 35.)
In determining what are charitable purposes in a legal sense, we may refer to the statute of 43 Elizabeth (Chap. 4), which in regard to definition of charities was declaratory of the common law. (Owens v. Missionary Society of M. E. Church, 14 N. Y. 380.) The preamble of that statute is quoted in Buchanan v. Kennard (supra, 133). “ Schools of learning ” were there
The purpose and character of the defendant is to be sought in the act by which it was incorporated. (Matter of De Peyster, 210 N. Y. 216, 219; Matter of Rockefeller, 177 App. Div. 786.) Chapter 585 of the Laws of 1865 incorporated Cornell University, an examination of which shows clearly that the purpose of the university was educational and charitable; and so it is to-day. (Education Law, § 1033.) The trustees serve without pecuniary compensation or profit. There is an entire absence of pecuniary gain in any form inuring to the benefit of the founder, the incorporators, their successors, or the governing body. There is no capital stock, no stockholder, no dividends. Beyond dispute all of the income of the university, whether from tuition, rents, fees or other sources, is used to carry out the sole object for which it was created and exists —the education of those who attend it as students. Its doors are “ open, under needful and proper regulations, to the indefinite public,” for the study of arts, sciences, engineering, law, medicine, agriculture and veterinary medicine. The Agricultural College and the Veterinary College are institutions owned by the State and administered by Cornell University. In 1916, at the time of the accident, about 5,000 students were enrolled. There were about 600 professors and instructors. The assets of the defendant, consisting of real estate, securities and
Our conclusion is that Cornell University is a charitable insti- ■ tution and is, therefore, not responsible for the negligence of its agents and servants, if injury was thereby caused to the plaintiff, a beneficiary of the charity. This is unquestionably the law of this State. (See Hordern v. Salvation Army, 199 N. Y. 233, 237, and cases cited.) As to strangers to a charitable corporation, the law of the State imposes liability for the negligence of its agents and servants. (Hordern v. Salvation Army, 199 N. Y. 233; Kellogg v. Church Charity Foundation, 203 id. 191; Schloendorff v. New York Hospital, 211 id. 125, 129.) In the cases of Green v. Cornell University (193 App. Div. 924; affd., 233 N. Y. 519) and Breed v. Cornell University (198 App. Div. 966; affd., 233 N. Y. 518) there was involved the liability of the defendant for the negligence of its employee in so driving an automobile upon a public highway as to negligently injure another user of the highway, a stranger to the defendant. The question whether Cornell University was
It is the claim of the plaintiff, however, that the rule exempting a charitable corporation from liability to a beneficiary does not extend to a case of negligence of its managing officers in selecting incompetent servants. Such an exception to the rule has been quoted but not applied in the case of Hordern v. Salvation Army (supra, 236, 239), but in the case of Goodman v. Brooklyn Hebrew Orphan Asylum (178 App. Div. 682) it has been applied. In the Hordern Case (supra, 236) the case of McDonald v. Massachusetts General Hospital (120 Mass. 432), which was the leading authority relied upon in the Goodman Case (supra), and in numerous adjudications by other courts, was cited. It is significant to note, however, that the Court of Appeals, referring to the McDonald Case (supra) in the Hordern case, said of it: “ In Massachusetts the exemption of certain hospitals from liability seems by the opinions of the Supreme Court to have been based rather on the theory that those institutions were governmental instrumentalities, than on their character as public charities, though they were recognized as such.” Another case referred to in the Hordern Case (supra) in which the same reference is made to due care in selecting servants for a charitable corporation, is Powers v. Massachusetts Homeopathic Hospital (47 C. C. A. 122; 109 Fed. Rep. 294), the leading case in applying the doctrine of waiver of right to recover by a beneficiary. Judge Lowell, of the United States Circuit Court, in concluding his opinion in that case, however, expressly disclaimed any decision as to the liability of the hospital in question if it had employed an incompetent servant. The fact is that the statement of such -a rule was not necessary to the decision even in the McDonald Case (supra), where the expression originated in relation to the beneficiary of a charitable corporation (Roosen v. Peter Bent Brigham Hospital, 235 Mass. 66, 70), and reference to such a rule was not necessary to the decision in the Hordern Case (supra), since that case related to the rights of a person other than a beneficiary.
The only case in which such a rule has been fairly applied to the facts of the case is that of Goodman v. Brooklyn Hebrew Orphan Asylum (supra), decided by the Appellate Division in our Second Department. Since that decision rested upon an apparent holding to that effect in the McDonald Case (supra), it is important to note that the Massachusetts Supreme Court has recently interpreted its
“ There is no sound distinction in reason between the liability of a hospital for the negligence of its inferior agents and its liability for the carelessness of its managers. The conduct of both relates to the execution of the charity. The inferior agents usually work for pay, while the managing officers as matter of common knowledge generally undertake the administration of the public charity without compensation, solely out of public spirit in a desire to serve the general welfare. If the hospital is held responsible for their acts of negligence, the funds devoted to the relief of suffering humanity must be diverted in the one instance to the same extent and manner as in the other to the payment of claims wholly foreign to the purposes of the public trust. That being the ground of decision
“ The inevitable result of our own decisions is to relieve a hospital from liability for negligence of the managers in selecting incompetent subordinate agents, as well as for the negligence of such subordinate agents selected with care. This conclusion is supported by the great weight of authority in other jurisdictions.”
The Supreme Court of Massachusetts further calls attention to the fact that in New York State (citing Hordern v. Salvation Army, 199 N. Y. 233) the rule of exoneration of a charitable corporation from liability to a beneficiary for the negligence of its servants or employees rests upon waiver by the beneficiary, saying: “ This principle manifestly would exonerate the defendant in the case at bar.” (Roosen v. Peter Bent Brigham Hospital, supra, 74.)
Thus the question may fairly be reopened by us, in the absence of a binding decision of our Court of Appeals. We are unable to conceive of any good reason for a rule which differentiates in the case of a charitable institution between negligence of a servant or agent in carrying out details of work assigned to him and negligence of an agent, although an officer of the corporation, in selecting the servant who causes the injury to a beneficiary of the charity. The foundation of our rule exempting charitable corporations from liability for the negligence of its servants, causing injury to beneficiaries, is that of waiver. (Hordern v. Salvation Army, supra.) It is not that the relation of master and servant does not exist between the charitable corporation and an employee but that the consequences of the application of the doctrine of respondeat superior are waived by the beneficiaries in accepting the benefits of the charity. While charitable institutions such as hospitals have been exempted from liability for the negligence of nurses and physicians because as between them and the hospital the doctrine of respondeat superior does not apply, one of the reasons assigned is that the physician is not subject to the direction of. the
We hold to the doctrine, now the settled law of Massachusetts, and which we conclude to be a manifestly logical development of the law of our own jurisdiction, that a charitable corporation is not liable for injury to a beneficiary, for the negligence, either of its managing officers in selecting incompetent servants and employees or of servants and employees selected with care. This rule precludes a recovery by the plaintiff against Cornell University unless, as suggested by the respondent, the rule is somehow modified by the provision of our Constitution (N. Y. Const, art. 8, § 3) which provides that “ all corporations shall have the right to sue and shall be subject to be sued in all courts in like cases as natural persons.” This is not applicable to a situation -where the corporation cannot be guilty of negligence as to one of its beneficiaries, being a charitable corporation and the injury having arisen in the course of carrying out the great charitable purpose for which it was founded and still exists. (Roosen v. Peter Bent Brigham Hospital, supra, 76.)
The judgment should be reversed upon the law and the complaint dismissed, with costs.
H. T. Kellogg, Acting P. J., and Kiley, J., concur; Hasbrouck, J., votes for reversal and a new trial, with an opinion; Van Kirk, J., not sitting.
Dissenting Opinion
I dissent from the conclusion reached by Mr. Justice Hinman and the majority of the court that the complaint in this action should be dismissed.
He has reached his conclusion upon the assumption of fact that Cornell University is a charitable and eleemosynary institution and that the plaintiff was a student at it.
The facts are that the plaintiff did not matriculate at the university but did at the State College of Agriculture. There is no relationship between these institutions except that the conduct and administration of the college is placed by law (Education Law, § 1039) under the university. It was further provided by that law that the university should receive no income, profit or compensation from the moneys appropriated by the State for the Agricultural College.
In the year 1915 there was appropriated by the State Legislature for the support and maintenance of the Agricultural College $939,338.26. (See Laws of 1915, chaps. 725, 726, 727, 728.) If there were no contractual relationship between the university and the plaintiff that she should receive charity in the form of education, then there was no room for the implication of an agreement on the part of the plaintiff to waive the negligence of the servants of the university. It is true that there was accorded to the plaintiff the instruction and facilities of the chemical laboratory of the defendant. Such instruction and facilities came to the plaintiff not as the student of the university but as a student of the State Agricultural College. The university accorded to the State the right of its students to take a chemical course in the university. Notwithstanding the legislative provision that the university should have no income, profit or compensation from the moneys appropriated by the State for the Agricultural College the university used the college to educate its students in agriculture and the subjects particularly taught in the State College.
The relation between the two institutions was that of interchange of facilities.
The inference is plain that the university in the management and administration of both institutions undertook to compensate the State for the educational facilities of the Agricultural College by certain instruction and facilities in the university. Under these conditions it is a matter of little moment so far as the legal rule exists in the doctrine of respondeat superior, whether the plaintiff availed herself of the chemical course in the university for a quid pro quo furnished by the State to the university (Buchanan
If I am right in describing the status of the plaintiff and restoring to the case the application of the rule of respondeat superior as to servants that there is no immunity on account of such doctrine to the managers must be plain. If it were otherwise it has not yet been held in this State that the managers and alter egos of charitable institutions are immune from that rule.
It seems to me that in the light of the authorities headed by Hordern v. Salvation Army (199 N. Y. 233), Presiding Justice Jenks of the Appellate Division of the Second Department was correct in stating the position of that court as follows: “ This limitation has not been accepted without some criticism and protest, prompted often by the consideration that a judgment on such liability [that of the managers and trustees] none the less affects the defendant, but if, for that consideration or for any other, the principle should be unlimited, it should be thus declared by the Court of Appeals alone.” (Goodman v. Brooklyn Hebrew Orphan Asylum, 178 App. Div. 683.)
If we are to ignore what our courts have held with regard to the liabilities of charitable institutions for the negligence of their managers and enter into the reasons for the rules which accord such institutions immunity, we may well inquire whether this rule of immunity with which the courts have hedged about these largely endowed institutions is not archaic and mediaeval.
Assuming the fact of responsibility as found by the jury the plaintiff appealed for an education to charity and it plucked out her eye; she asked for bread and it gave her a stone. This is not the charity of the book of books describing charity for “ charity suffereth long and is kind.”
The reasons that existed in the early days of this country for encouraging the efforts of philanthropy in building and equipping hospitals and institutions of education should no longer be so controlling, for such efforts have resulted in the erection and maintenance of such institutions enjoying endowments and revenues beyond the imaginations of the early lawmakers.
I have no sympathy with the attempt of Mr. Justice Hinman to take out of our law the doctrine of respondeat superior as it now exists (Hordern v. Salvation Army, supra) in respect to the liability of the trustees and managers of charitable and eleemosynary institutions for their negligence. He asserts that it is necessary to hold such doctrine in order to preserve the jewel of consistency,
The judgment it seems,to me cannot, however, be affirmed. The trial court charged the jury in substance that it was the duty of the university to inspect the chemicals delivered to the students “ in order that the possibility of an accident might be avoided.”
I think the exception to that language may be found at folio 1736. That it does not state the rule of duty upon the part of the defendant applicable to this case, may not be disputed.
The rule stated is not that of reasonable care but rather that which binds common carriers in the rendition of services to the public. The duty on the institution was not to make the highest, the utmost and greatest effort to eliminate the possibility of injury to its students. (Topeka City R. Co. v. Higgs, 38 Kan. 375; 5 Am. St. Rep. 760.) It seems, therefore, that such instruction was erroneous.
It is very doubtful too whether the court was correct in charging that the defendant owed the plaintiff the duty of inspecting the chemical materials used in making the experiment described in the case at bar as a matter of law. (Allison Manufacturing Co. v. McCormick, 118 Penn. St. 519; Dwyer v. Buffalo General Electric Co., 20 App. Div. 124; 6 Thomp. Neg. [2d ed.] § 7403, p. 446.)
I think too the learned trial judge erred in admitting the evidence showing another accident, the explosion that occurred some ten minutes or less prior to the accident to the plaintiff, without showing that that accident occurred in a substantially similar manner to that which happened to the plaintiff from a union and heating over a 'Bunsen burner of the same chemicals used by the plaintiff in the experiment in which she was injured. (Meiers v. Koch Brewery, 180 App. Div. 450, 454; affd., 229 N. Y. 10; Withers v. Brooklyn Real Estate Exchange, Ltd., 106 App. Div. 255.)
The judgment should be reversed and a new trial granted.
Judgment and order reversed upon the law and complaint dismissed, with costs.