delivered the opinion of the court.
This was a suit brought; 'by Mrs. Thompson against the Hospital of St. Vincent of Paul, in the city of Norfolk, to recover damages for an injury alleged to' have resulted from the negligence of the defendant. There was a verdict and judgment in favor of the plaintiff for $2,500 to which a writ of error was awarded.
Three errors are assigned to the rulings of the trial court: First, the action of the court in overruling the demurrer to the declaration; second, its refusal to give certain instructions asked for by plaintiff in error, and the giving of certain instructions asked for by defendant in error; and, third, its refusal to set aside the verdict and entering judgment thereon.
There are several grounds of demurrer assigned, which present no question of novelty or importance and the underlying principles of which will be sufficiently discussed in the succeeding part of this opinion. Suf
It is assigned as error that the court refused instructions 1 and 3, asked for hy the plaintiff in error, and gave instruction 4, asked for hy the defendant in error.
Instruction No. 1, asked for by plaintiff in error and refused by the court, declares that a hospital which is incorporated for taking care of sick and disabled persons who may be received by it, which has no capital stock, and is not conducted for dividends or profits, is a charitable institution; and if the jury believe from the evidence that the defendant is a charitable institution according to this definition, it cannot be held liable for the plaintiff’s injury merely because its employees’ negligence may have caused said injury, but that, before they can bring in a verdict for the plaintiff, they must further find that the defendant was guilty of negligence in selecting said employees.
The third instruction asked for by the plaintiff in error and refused tells the jury that “if they believe from the evidence that the plaintiff in this case came upon the premises of the defendant on the thirty-first day of July, 1912, at the time of the injury complained of, without an invitation, either express or implied, from the said defendant, then the said plaintiff was a mere licensee, and the said defendant was liable to her, if injured upon said premises, for wanton injury only, and they must find for the defendant, unless they further believe that the said plaintiff was wantonly injured while on the premises of the said defendant.”
Taking up these instructions in their inverse order and dealing first with the principle announced in the third instruction, we are of opinion that it was rightly rejected. It appears from the declaration and from the
“The court instructs the jury that if they believe from the evidence that the plaintiff on July 31, 1912, accompanied at her request a sick friend to the .defendant’s hospital for treatment; that the condition of her friend was such as to render it reasonably necessary for the plaintiff, or some one else, to accompany her—then the defendant owed to the plaintiff the duty to exercise ordinary care to have its premises in reasonably safe condition for the visit; and if the defendant negligently failed to perform that duty, and as the proximate consequence thereof the plaintiff while exercising due care was injured, then the defendant is liable for the injuries sustained.’ ’
There is no dispute as to the facts on which this instruction is predicated, and the facts being ascertained, it was the duty of the court to tell the jury the law which applied to them; and this, as we have said, is correctly done in defendant in error’s instruction No. 2.
Instruction No. 1 asked for by plaintiff in error presents a question of great interest. It must be conceded that the plaintiff in error is a charitable institution. That it receives compensation from patients who are able to pay for the accommodations received does not render it any the less a charitable institution in the eye of the law. This seems to be well established by the 'authorities. McDonald v. Mass. Gen’l. Hospital, 120 Mass 432,
In Trevett v. Prison Association,
The subject has, however, been considered and treated with great learning and ability by numerous courts.
In Duncan v. Nebraska Sanitarium,
The appellate court said further in its opinion, that even though full compensation had been paid in the particular case by the plaintiff it would not necessarily follow that the patient received no benefit from charity. “S'he occupied a room in a building maintained in part at least by donated funds intended for benevolent purposes. Necessary care, skill and food came from the same source. On the record as made the jury should not have been permitted to find that the inmate had received no benefit-from charity.” For these propositions a great number of authorities are cited, which fully war
While it may hot be necessary in this case for us to decide, we have little hesitation in saying that what is known as the trust fund doctrine does not appeal to us as a satisfactory footing upon which to rest the immunity of such associations. The trust fund doctrine would establish absolute immunity, if carried to its logical conclusion, for all. torts committed by such associations. It would apply to the omission to perform, or the-negligent performance of nonassignable • duties, and indeed to negligence in all its conceivable forms. The immunity flowing from the acceptance of the benefits of such a charity, as held by decisions of many courts rests upon a more logical foundation, and has met with approval of many courts of high standing and the trend of modern decision seems to be in that direction.
In Basabo v. Salvation Army, 35 R. I. 22,
‘ ‘ Some of the cases cited absolutely deny the liability of a charitable corporation in any event to pay damages for injuries arising from the negligence of its servants or agents, either to a patient or inmate, or to a third party, on the ground of public policy, saying that “it would be against all law and all equity to take those trust funds, so contributed for a special charitable purpose, to compensate injuries inflicted or occasioned by the negligence of the agents or servants of the charity, and*108 arguing that if such damages were-to be allowed to be paid out of the trust funds it would tend to destroy the charity, and to discourage the giving of money or other property for the establishment of charities. (Citing a number of authorities.) Other cases cited, while arguing along the same general lines of public policy, limit the exemption of charitable corporations from liability for injuries occasioned by the negligence of physicians, surgeons, nurses, servants and agents to cases where there has been no negligence on the part of-the defendants in the selection or retention of such persons. (Again citing authorities.) We think these latter cases must be regarded as entirely inconsistent with the general proposition of the exemption of charitable corporations on grounds of public policy, set forth in the previous cases, as w'as said in reference to many of these cases by Gaynor, J., in Kellogg v. Church Charity Foundation,128 App. Div. 214 , at page 217,112 N. Y. Supp. 566 , at page 569: ‘In many, if not most, of the cases, a ground for the nonliability for the torts of agents or servants of charitable institutions is that to pay damages for such torts would be a diversion of their funds from the trust purposes for which they are donated by the charitable, and thus a contravention of the trust; and that as such institutions have no other funds, it would be futile to allow judgments to be taken against them in such cases. But the opinion of the judges in these same cases almost invariably except cases where the agent or servant was incompetent and there was negligence in his selection, failing to take note that it would be as much a diversion of the trust funds to pay damages for the tort of negligence in selection as for any other tort. If the rule exist, it must necessarily 'apply to all torts and in all cases. The only support for the argument that it does exist is found in the remarks*109 of judges in certain rather old English cases, and never had a direct application to actions of tort against charitable corporations such as are now common.’ ”
Referring to Powers v. Massachusetts Homeopathic Hospital,
In Hearnes v. Waterbury Hospital,
Basaba v. Salvation Army, supra, and the authorities there cited seem to go far'to establish that with respect to the' physicians, surgeons and nurses, and other skilled attendants such as are furnished the patients, not being un'der the control of the corporation as to their treatment are. not to be considered as the servants of the corporation in such sense as to make it responsible under the doctrine of respondeat superior, provided they are selected with due care, and upon this principle many of the cases relating to immunity of benevolent corporations may be logically and properly rested. Secondly, that there are certain duties to patients which are corporate duties such as the exercise of due care in the selection of skilled and competent attendants and the exercise of due care in the summoning of such attendants in a case where the condition of the patient requires such service, and that the agent of the corporation, whose duty it is to summon such attendants, is in such case the agent and representative of the corporation, whose negligence is deemed to be that of the corporation itself. Thirdly, that the doctrine of the general immunity of a charitable corporation from liability for damages, on the ground of public policy, as involving the diversion of trust funds from the purposes of the trust, has no logical foundation, and that, where such a corporation has funds available for the general purposes of the corporation, it may apply such funds to pay damages for which it is held liable notwithstanding the trusts-for which they are held, because the liability is incurred in- carrying out the trusts and is incident to them.
The case of Basabo v. Salvation Army, supra, thefi goes on to deal with the negligence of servants or agents
In Hewett v. Woman’s Hospital Aid Asso., 73 N. H; 556,
To say that a similar duty was not imposed upon the defendant for the benefit and protection of the plaintiff, because it is a charitable corporation, is to relieve such corporations from the reasonable obligation of exercising the care o'rdinarily required of, or contractually assumed by, men in general in the prosecution of their legitimate business. The necessity for such an exceptional holding is not 'apparent. Since the property of the defendant is held for the general purpose of maintaining a hospital, without other specific limitation, it is no more exempt from 'being appropriated to the payment of damages occasioned by the negligence of the hospital than is the property of an individual, which he holds for commercial or charitable purposes, for the consequences of his negligence.”
In Bruce v. Central M. E. Church,
Coming to deal with exemption upon the ground of public policy, in Basabo v. Salvation Army, supra, quoting from Powers v. Homeopathic Hospital, supra, it is said, that such exemption must rest upon the argument that the advantages reaped by the public from such trusts justify the exemption; that is, as applied to this case, the advantages to the public justify defendant’s exemption from liability for wrongs done to individuals. If this argument is sound—and its soundness may be questioned, for there are those who will deny that the advantages to the public justify the wrong to the individual— it should 'be addressed to the legislative, and not to the judicial, department of the government. It is our duty as judges to apply the law. We have no authority to create exemptions or to declare immunity.”
In
In Hordern v. Salvation Army,
Hordern v. Salvation Army, supra, fully approves the doctrine of Powers v. Homeopathic Hospital, supra, and the court said “We can add nothing to the force of this reasoning, but imply express our concurrence therein, as well as in the argument of Judge Lowell.” Hordern v. Salvation Army, supra, itself was subsequently approved by the Nelw York Court of Appeals in Kellogg v. Church Charity Foundation,
We are much indebted, in considering this case, to the very learned and able opinion of the Rhode Island court in Bascabo v. Salvation Army, supra, from which we have extracted with great freedom.
Applying the principles considered to the case before us, it becomes at once apparent that the defendant in error was not a beneficiary of the charity, but that she i's to be considered as a stranger, and comes within the influence of the principle, that a charitable corporation is not exempt from liability for torts against strangers because it holds its property in trust to be applied to the purposes of charity; a principle which seems to be fully established by courts of the highest authority and in well considered cases.
In this connection it may be observed, that much that has been said in this opinion was, in this view of the case, unnecessary; to which we reply, that the whole subject was discussed in oral argument and in the briefs
Ouir conclusion is that there was no error in the instructions given or refused.
Coming to the facts of the case, we find from the evidence that they are fairly stated in the brief for defendant in error as follofws: that Mrs. Davis was expecting to be confined, and her husband had made arrangements with the hospital to receive her as a pay patient. On the day in question Mr. Davis was out of the city, but before leaving had requested Mrs. Thompson, a friend of his wife, to look out for her, and to go-to the hospital with her if necessary to go before his return to the city. About noon on July 31, 1912, Mrs. Thompson received a ’phone message from Mrs. Davis, telling her that she felt ill, and that she was preparing to go to the hospital, and asking her to come down and go with her. Mrs. Thompson complied with this request, and went to the apartment occupied by Mrs. Davis. She ’phoned to Mrs. Davis ’ physician, and he told her to order a carriage and proceed with Mrs. Davis to St Vincent’s Hospital. Mrs. Thompson ordered a carriage, and in the meantime Mrs. Davis ’phoned to St. Vincent’s Hospital and advised the authorities that she would come over in a short time, and asked them if they were prepared for her. She was informed that the hospital authorities were in waiting and in readiness for her arrival. About half past one o’clock in the afternoon Mrs. Davis and her friend Mrs. Thompson went in the carriage to St. Vincent’s Hospital. Before they arrived a storm came up and it began to rain rapidly. The driver, who w'as familiar with the hospital and its entrances, drove around to the rear of the hospital into an open court, and stopped his carriage at the entrance which was used by the hospital for its
Coming to a more particular description of the elevator, it appears that one side of the elevator shaft was an outside rear wall of the building. At the level of the ground a door-way was cut into this shaft, so that when the floor of the elevator was on a level with the surface of the ground, people could walk in and out of the elevator. This door-way was fitted up as an entrance. There was a stone door sill at the bottom, and at the top of the doorway there was a stone lintel. There were two wooden doors which opened outwardly, and were fastened back during the summer. There were also two screen doors which opened outwardly and which were in use in the summer months. Oné of these screen doors, the one to the left of a person approaching the entrance, was equipped with a handle, so that it could be opened from the outside, but there was no inside fastening on this door at all, and when the elevator was further up in the
We think the evidence tends to support all the averments of the declaration and all the facts upon which the several instructions weré predicated, and makes a case' Which was proper for the consideration of the jury, whose verdict under proper instructions is conclusive.
We are therefore of opinion that the trial court committed no error, and its judgment is affirmed.
Affirmed.
