64 A. 190 | N.H. | 1906
The plaintiff's declaration combined three causes of action: one against the hospital for its negligence in not notifying her of the danger of her situation in performing the duties of nurse, one against Mrs. Russell for her personal negligence in inducing the plaintiff to assume the performance of those duties under the circumstances, and one against Mrs. Russell for professional malpractice in attending the plaintiff after she had contracted the disease of diphtheria. The jury returned a verdict against the hospital and a verdict for Mrs. Russell, finding substantially that while the hospital was negligent as alleged, Mrs. Russell, its representative and manager, who actively directed the plaintiff to assume the danger complained of, was not negligent in that respect, and that she was not guilty of subsequent malpractice. If there is an apparent inconsistency between the first and second findings, a point upon which no opinion is expressed, neither party is in a position, as the case is here presented, to take advantage of it as a ground for setting aside one verdict and sustaining the other. If the supposed inconsistency existed, it would show that there had been a mistrial, and the result would be that both verdicts would be set aside and a new trial granted upon the first two issues raised in the declaration. The verdict upon the third issue in relation to Mrs. Russell's malpractice, having been fairly tried, would be unaffected by that result. But neither party moved in the superior court to have the verdicts set aside upon the ground of a mistrial, nor does either now urge that disposition *562 of the case. Each seeks to preserve so much of the jury's as is favorable to that side and to reject the rest. Under such circumstances both verdicts must stand, so far as this objection to them is concerned, even if they are inconsistent. If the parties are satisfied, the court will not complain.
The defendant's suggestion that the verdict in favor of Mrs. Russell is a special verdict or finding that there was no negligence the part of the hospital, and hence that it controls the general verdict against the latter (Richardson v. Weare,
The principal contention relates to the liability of the hospital in an action of tort for negligence. A motion was made in the superior court in behalf of the hospital that a verdict be directed in its favor; the motion was denied, subject to exception. Broadly stated, the question thus presented is whether there was any competent evidence from which it could be found that the defendant hospital was guilty of a breach of duty toward the plaintiff, which was the proximate cause of her injury. If there was, the case was properly one for the jury; if there was not, the defendant was entitled to a verdict and its motion should have been granted. In support of the motion, it is urged that the corporate character of the defendant is such that it owed no duty to the plaintiff for the breach of which it can be held liable in an tort. Since the legal doctrine of negligence assumes as its basis or necessary premise the existence of a legal duty due from the alleged wrongdoer to the injured party, it is important to ascertain what the relations of the parties were and what resulting obligations existed between them.
There can be little, if any, doubt that the hospital is what is known in the law as a charitable or eleemosynary institution. The purposes for which it was incorporated, according to the articles of association, were "to establish and maintain hospitals and homes, and otherwise aid and assist worthy and dependent women and children who wish to be under the care of women physicians and attendants." It has no capital stock, and no provision *563 is made for a division of profits. Whatever property it owns is devoted to the support and management of the institution in the care of sick and dependent women and children, who pay for the benefits received according to their ability; and the money so received is used in paying the necessary expenses incident to such an institution. Its evident purpose is to aid and relieve the sick as economically as possible for the kind of attention provided, and not, like an ordinary business corporation, to earn or accumulate an income for division among its members. Indeed, it is not seriously contended that it is not a charitable corporation, or that it is not entitled to all the immunities legally incident to institutions of that character. But it is insisted that the law does not exempt it from liability for its failure to use reasonable care for the safety of its employees or servants; in other words, that the law imposes the same duty upon it in this respect that it imposes upon individuals and business corporations. The vital question is whether this contention is sound.
The defendant corporation was formed under the general incorporation law, which authorizes five or more persons to associate together to form a corporation for "the establishment and maintenance of hospitals." P. S., c. 147, s. 1. Section 4 provides that "such corporation, its officers and stockholders, shall have all the rights and powers and be subject to all the duties and liabilities of other similar corporations, their officers and stockholders, except so far as the same are limited or enlarged by this chapter." The chapter contains no express provision limiting or enlarging "the duties and liabilities" of hospitals, in any respect material to the present inquiry. If they are exempt from liability in cases of this character, the legislative intention to that effect, which determines their powers and duties, must be found inferentially from a consideration of the peculiar purposes they were formed to accomplish. Their powers and duties are the same as those of "other similar corporations."
It should be noted in this connection that the defendant was not incorporated for the purpose of carrying out the provisions of express trust in reference to property or money donated under limited deed of trust. It holds its property under its charter the general purposes of a hospital. It is a charitable institution whose powers and duties in the management and expenditure of its funds is unlimited, except so far as they are governed and defined by the general charitable purpose of its incorporation. It is therefore unnecessary to consider what its legal liability might be if it held funds upon a trust which expressly or by necessary inference exempted them from being appropriated to the payment of damages suffered through the negligence of its officers or *564
servants. Many of the cases which either hold or state argumentatively that a charitable body is not liable for its torts, proceed upon the theory that its funds are held upon a special trust, that to use them for the payment of damages in an action of tort against it would be an unwarranted diversion thereof, and that such an action is not maintainable because it would be entirely futile. Such seems to be the doctrine of, although not necessarily the holding in, Heriot's Hospital v. Ross, 12 C. F. 507. In that case Lord Cottenham says with reference to the payment of damages for the tort of a charitable body (p. 513): "It is obvious that it would be a direct violation, in all cases, of the purposes of trust, if this could be done, for there is not any person who ever created a trust fund that provided for payment out of it of damages to be recovered from those who had management of the fund. No such provision has been made here. There is a trust, and there are persons intended to manage it for the benefit of those who are to be the objects of the charity. To give damages out of a trust fund would not be to apply it to those objects whom the author of the fund had in view, but would be to divert it to a completely different purpose." In Powers v. Hospital, 109 Fed. Rep. 294, 302, it is said that if this case "is rested upon a doctrine that under no circumstances can a trust fund be held liable for torts committed in its management, it stands alone in Great Britain", and that doctrine is repudiated in the subsequent case of Mersey Docks v. Gibbs, L.R. 1 H.L. 93. See, also, Gilbert v. Trinity House, 17 Q.B. Div. 795. It would seem to be entirely unnecessary to discuss a proposition so barren of arguments in its favor. That a charitable institution has certain duties to perform toward those with whom it is associated, which it cannot violate with impunity, in the absence of some express exemption of a legislative character, is not debatable. The sanctity of its general trust fund or property does not make that result necessary or, on grounds of public policy, desirable. The liability of charitable corporations in actions of tort is frequently enforced. Stewart v. Harvard College, 12 Allen 58; Davis v. Society,
Since the defendant has no absolute exemption from being sued for some torts it may be guilty of, the question recurs whether its character as a charitable institution furnishes a sufficient reason for its exemption in this case. In other words, why did it not owe in a legal sense the duty of a master to the plaintiff while employed in its affairs? Whether the general rule of respondeat superior applies to it as to a business corporation or individual, may be an interesting question, but it is not material to the present inquiry. If it owed the absolute, non-delegable duty of a master to the plaintiff, it cannot escape liability by showing that the negligent act which caused the plaintiff's injury was the act of a servant, or raise the question of its liability for the collateral negligence of its servant under the rule of respondeat superior. Upon this assumption, cases holding that a charitable corporation is not responsible under that rule of law are not in point. A few examples are Hearns v. Hospital,
The duties of the defendant to the plaintiff when she was employed to nurse a diphtheria patient had their inception in the contract of employment. She was engaged to do a necessary part of the work of maintaining a hospital for the sick. For this labor she was paid. If she was an apprentice receiving small remuneration in money, in consideration of the instruction and experience she received in practical nursing, she was none the less an employee of the defendant. An apprentice learning a trade occupies the position of a servant with reference to his employer, and obviously the latter's duty to inform him of the dangers of his occupation is greater than in the case of an experienced workman. While performing the necessary work of nursing in the institution, the plaintiff was not, like a patient, the recipient of the defendant's charity. McDonald v. Hospital,
If she had been employed by an individual to attend a member of his family afflicted with small-pox of which he had knowledge, but of which he did not inform her, and she took the disease without fault on her part and suffered damage therefrom, it would not be seriously denied that he was guilty of actionable negligence in not informing her of the danger to which he exposed her. It was his duty arising from his employment of her, or from the contractual relation of master and servant existing between them, to warn her of the danger incident to the service which he knew or under the circumstances ought to have known, and of which he knew she was ignorant, though in the exercise of ordinary care. And this duty is a non-delegable one. Hamel v. Company, ante, p. 386; English v. Amidon,
The defendant further claims that the evidence was not sufficient to warrant a finding of negligence on its part. This position, stated in more specific language, is that the evidence is so meager and inconclusive that the court must hold that reasonable men acting as jurors could not reasonably draw the inference from the evidence that the defendant violated its duty to inform the plaintiff of the danger of her employment. It is not for the court to determine the weight of the evidence. Upon the assumption that the evidence for the plaintiff is true, the question for the court is whether it is logically and legally sufficient to support finding by the jury in favor of the plaintiff upon a material issue. The weight and reliability of competent evidence is to be determined exclusively by the jury. It is unnecessary, upon this point, to review the evidence at length. It is sufficient to state that it tended to show that one of the patients whom the plaintiff nursed had a form of diphtheria, that a culture taken from this patient and examined by a bacteriologist contained diphtheria bacilli, and that Mrs. Russell, the physician in charge of the patient and manager of the hospital, was duly informed of the result of the examination. If the jury found these facts to be true, they were *568 warranted in the conclusion that the hospital had notice of the contagious character of the patient's disease, and that it was its duty, acting as ordinarily prudent men would have acted under the same circumstances, to disclose the danger to the nurse who was ignorant of its existence. Whether the hospital, through Mrs. Russell, used ordinary prudence in this respect may be a debatable question upon the evidence reported. Her conduct may be explainable upon a theory consonant with due care, or upon a theory showing the absence of due care; and it is exclusively the province of the jury to determine which is the true one. As they have upon competent evidence adopted the latter theory, their finding is conclusive. The court cannot say that reasonable men could not come to that conclusion, or that a reasonable doubt in the mind of Mrs. Russell, in her diagnosis of the patient's disease, as to its true character, would justify her, who as the representative of the hospital was bound to exercise reasonable care for the plaintiff's safety, in omitting to inform the plaintiff that the disease might be of a diphtheritic character. The hospital might be bound to warn the plaintiff before Mrs. Russell had reached a satisfactory diagnosis. The motion to direct a verdict for the defendant was properly denied.
Certain exceptions were taken by the defendant to the charge to the jury and to the denial of requests to charge; but the foregoing discussion renders it unnecessary to further consider the points raised. Nor are the exceptions to the remarks of the plaintiff's counsel in argument tenable. Counsel did not, so far as the case shows, exceed the limits of the legitimate argument.
Exceptions overruled: judgment on the verdicts.
All concurred.