*1 receipt and retention business world —the bargained money for. points everything Moreover, de way Florida more recent example, has Florida For cisions.
adopted principle contracts
surety most construed hire obligee. strongly Na favor Robuck, Fire Ins. Co. tional Union 204, Fla.Dist.Ct.App., 203 So.2d 672; denied, Fla., 212 So. cert. So.2d Heaton, 869; Fla.Dist.Ct.
2d Lambert v. 536; Phoenix
App., 134 So.2d Instruc of Public Indem. Co. v. Board
tion, Fla.Dist.Ct.App., 114 So.2d Likewise, Florida the rule in it is
478. con departure from construction that a Haynsworth, J., dissented. automatically C. relieve tract will however, surety. If, there is exonerate a also, F.Supp. C., 369. See D. injury departure that results is a surety, surety will be relieved injury. discharged of its to the extent Co., Indem. Accident & Gibbs v. Hartford Fla., 1952, 62 599. So.2d Affirmed. SAMS, Paradise,
James E. Jack L. Birmingham, Appellants, Daniel J.
OHIO VALLEY GENERAL HOSPITAL ASSOCIATION, al., Corporation, et Appellees.
No. 12983.
United Appeals States Court of
Fourth Circuit.
Argued April 9, 1969. July 18,
Decided
827 only unjustly the rule in suit is dis- criminative, for without semblance differentiation, hos- reason for the pitals participation accord full to doctors practices with and within Ohio entitlement but refuse the same find the those so classifiable. We justified sound, contention a invocation equal of the Fourteenth Amendment’s protection safeguards. virtually agreed.
The facts are
Ohio
Valley
Wheeling
pri-
General and
vately
non-profit
operated,
hospitals,
li-
by
Virginia
Va.,
Wheeling,
censed
of West
McCamic,
State
Jeremy
W.
C.
governed by lay
Va.,
and
boards. Located in
McCamic, Wheeling,
(McCamic
W.
city Wheeling,
County,
Ohio
brief)
appellants.
for
250,000,
population
an
area
over
Phillips
Paul Camillet-
and
John D.
D.
encompassing six
Ohio
counties besides
Va.,
(Chester
Wheeling,
ti,
R. Hub-
W.
County.
Penn-
One is Green located in
brief)
Va.,
bard, II, Wheeling,
on the
W.
sylvania,
Jefferson,
three
Bel-
appellees.
for
lying
mont
Monroe
in
north
HAYNSWORTH,
Judge,
Chief
Before
south tier
on the
Ohio
west bank
WINTER,
Circuit
and BRYAN
River,
remaining
Ohio
two
Judges.
Brooke,
are Marshall and
West
counties,
along
in line with Ohio
BRYAN,
Judge:
Circuit
ALBERT V.
River, opposite
the east
bank of
physicians
Appellants are three
who Ohio counties.
appointments
have been refused
There are a total of six
privileges
hos-
two
area,
Valley
but Ohio
General
pitals
West
Ohio
Wheeling
Hospital
are the
ones
Virginia, under a common rule:
None of the other four
“Except
extraordinary
cir-
under
sophisticated
have the
found at
cumstances,
having
physicians
Valley
these two.
General
practice
offices and
outside
largest
in the service
Residents of
area.
eligible
for staff
shall not be
constitute
hospital privileges.”
appointment
patient pop-
44
between
and 49%
Valley
The two
are the Ohio
institutions
ulation
both
Wheeling
Hospital
Hos-
General
Valley
Hospital applied
General
respective
pital.
administra-
With
$3,352,755
for and received
of Federal
individually,
tors
were sued
moneys known as Hill-Burton funds to
appellants for in-
District Court
assist
a new addition
junction of this exclusion.
$9,863,758.
at a total
cost
A new
dismissed,
rejecting plain- wing Wheeling Hospital costing $1,-
The Court
at
264,696
premise
paid
tiffs’
of the suit —denial
the use of
was
equal protection
$625,976
the 14th
assured
in-
similar
In both
funds.
they appeal.
stances, private
Amendment1 —and
contributions
requires
appreciable
record
us to reverse.
accounted
part of the
of the cost.
remainder
right of
A constitutional
admission
provides
the staff and
disa-
The Hill-Burton Act2
Feder-
They
plaintiffs.
grants
agencies
claim
vowed
al
to State
to assist
Act,
Rights
Hospital Survey
Act,
1.
2.
The assurances
Civil
and Construction
pleaded.
(1946),
amended,
are also
60 Stat. 1041
§
U.S.C.
Training
Hampton
enlarging hospital
establishing
Smith v.
facili- Vide:
Nurses,
(4
it,
participating State
vited and some citizens Act Hill-Burton en under the than others. The constitutional safe- obligations guard tail, return, of observance is offended if the classifi- grounds wholly of Disregard constitutional mandates. Federal cation rests irrele- action, for them is State vant objective. achievement the State’s legislatures pre- to maintain a the act trusts the State State hospi just governance fair of these sumed to have acted within their con- legislation. accepting power despite that, tals the aid of the stitutional the fact ready practice, are axioms of verification. These their laws result seq. operation 42 CFR et See also U.S.C. the Federal act and § its 1949, opinion Judge found in the 53.1-53.134. Sobeloff participate Federal Simkins v. Moses H. elected to Cone Memorial Hos- imple- end, program and, pital, 959, (4 enacted F.2d 963-965 Cir. 1963), menting legislation. 16-1- § W.Va.Code cert. den. 376 U.S. 84 S.Ct. description A detailed L.Ed.2d 659. as amended. unaccepta- may thoroughfare, doctors be statutory discrimina- inequality. A wrong on the side live any ble because state if aside not be set tion will office of an Removal of the street. may reasonably conceived be of facts county may eli- a current recall from the justify it.” requirements Obviously, gibility. are the doctrine of this Illustrative easily plaintiffs evaded be holdings a rational basis there is that if through office Ohio the rental of an profes- therefor, separate treatment already practice em- for their calling per- even of the same sionals of it. braces whole ground instance, finding For missible. Notwithstanding frail- its manifest standings at for the difference grave ties, regulation has conse- down, bar, to strike refused Court “foreign” quences. doctor It excludes Clause, Kan- Equal Protection attending patients in either and licensed at- of a resident sas’ denial torney’s right though tal, residents practice, without a *4 only is not forbidden because, because he associate, in her courts Kansas priv- appointment hospital also Kansas, staff but although having he office in an ileges. embarrassment, he this To avoid regularly practiced Martin 1, Missouri. colleague forced to refer the ease to a Walton, 7 L. 82 S.Ct. apt, perhaps, v. 368 U.S. accomplishment, additional whose (1961). Ed.2d 5 Hayman More possession presumably, of a wait- is the Galveston, City 273 U.S. of consulting ing room in Ohio Coun- (1927). 414, 47 S.Ct. 71 L.Ed. nonsensical, ty. all neverthe- excluding it is regulation While damaging. upheld There awas less practicing osteopaths in a State hospital reserved which was Further, plaintiffs maintained are forced to teaching the uni- medical students in County place patients in hos- their Ohio versity of the vicinage pitals State. of the situate out of the Thus, appellant persons. ill not alone regulation trying on a State doctors the inhabitants but as well however, Amendment, Fourteenth County by rule. this Ohio are disserved the fit measurements is determined thought especially an no- discloses “practical on ex considerations based aspect: hospitals sponsored by the cuous perience in rather than theoretical government for the Federal and State Agen Railway Express consistencies”. voluntarily public generally cur- have 106, 110, York, cy New U.S. goal. No tailed the fulfillment this (1949). The S.Ct. L.Ed. 533 through the relief is “extraor- available determinant, however, of sur constant rule, dinary circumstances” action is vival annulment of the State the term is undefined. It has been uti- the soundness of its basis. lized occasion to admit having of communities criteria, Arraigned on these eligibility rule now us is classi before lacking reason, regula- Besides .rationality doctors fication without unjust tion makes distinctions between appointment or who receive staff offices medical Those with men. hospital privileges. Constitu County are, effect, above rated Ohio tionally it is No circumstance frivolous. counties, quite and those other legal it has been to establish as offered groundlessly, The im- it would seem. ly wholesomeor healthsome. pub- pression hardly reputation of the lic enhances the objectionable Seen at once as is the unaccepted doctor. disqualifying factor of extra Coun- Evidently, underlying ty de- practices”. the rule is a “offices Even resi- and give preferred county sire to citizens an ad- dents within this hospitals, vantage ban, excepted in access to the be- from the as witness largely appellant and their cause their initiative Dr. there. Sams with his home generosity brought public the institutions line runs down a into When also, capital Undoubtedly hoped, being. the contributors it was with which the were construct- at- could means that ' provision people, ed to be and was for its retain tract and physical those primarily, of immedi- theirs my surgical conclusion one come to the would skill and ate medical ap- end, reach, conception I brothers but submit To this talization. prem- proach too narrow and envisaged on the number far limitation insupportable. outside, con- ise from the many to consider generated were entitled the restriction siderations things oth- hospital to doctors economic staff and having practitioners, er medical It is not interests of aspire object, the construction unworthy cannot to more than but we buildings justification rule within suitable accede to provision already, for the care the sick. pointed its question. As encompass- adequate parochial en- of services as too its fail terms mortar, impermissible engenders es much dis- than brick and forcement and those stand the economic who bur- crimination. physical den of facil- any imply moment do we Not for a step ities in the achievement of hospital authority adminis- absence purpose are entitled to ultimate regulate appointments trations to ancillary claim the their contri- benefits privileges. Too numerous provide. butions were intended now, concededly many considera- list *5 determining tions are involved admis- majority recognizes, The the record many seg- sibility engagement in for the clearly shows, that, except for federal operations. Pres- of institutional ments through the Hill-Burton contributions ently, enjoin we enforcement of the dis- program, hospitals were construct- unfairly puted simply rule because it capital ed and funds built with contrib- against plaintiffs. slants the uted the citizens of Ohio remand, ask the District Virginia. we will from other Contributors Court its order of dismissal to vacate counties in West injunction hospitals’ of and to decree the The were few and insubstantial. situa- plaintiffs.3 exclusion of substantially the tion is different hospitals’ it would have if the con- been remanded. Reversed and operation struction had been fi- public nanced of out of Judge (dis- HAYNSWORTH, Chief general special or raised out of senting) : imposed upon taxes of the citizens Ohio I dissent. proper- or or on real estate There is no us difference between ty county. located in that legal governing principles. to What the appraisal of divides us is our the ration- Why do of citizens voluntari- classification, my being ality of the view ly agree approve to issues and to bond weight majority to accord that fails the tax or to themselves otherwise contrib- permissi- to considerations which were ute funds for the of bly appropriately taken into ac- they It that tals? seems me to obvious count. have much than the more in mind erec- solely buildings, problem tion of in- approaches the for their ultimate If one obviously provision impact terest of is the for terms of the the classifica- upon themselves of medical services which tion medical they begins includes, multi-county of believe area or the desirable. course, practi- premise presence of medical of the exclusive interest that the court, appellees, have been diction in the Federal such as defenses Other judicata juris- plea found to be insubstantial. considered and and of no of- res provide variety dertook to for Be- greater themselves. much tioners with hospitals must greater cause the limit could specialists skills than to community method number doctors whom ur- in a rural be found may extended, adequate phys- staff community with less ban County may their residents lose of so- The construction ical facilities. ability guarantee privileges to to physical phisticated tends to facilities attempting they doctors whom pres- whose attract the kind doctors county. persuade practice in their community necessary ence in is Furthermore, may there be a real risk provide the kind of medical services the hospitals of these community that the facilities may two people the size seek. In a if the become overtaxed rule ab- pur- that rogated, out-of-county will physi- doctors pose if further served still patients their enough continue to send cal contain beds facilities specialized surrounding who treatment to these patients need coun- from all but also choose send larger hospital ties. they once special laboratory their there oth- economic are hospital privileges. facilities, obtained staff greater er the number variety ill- their regula- For such reasons I think the nesses, greater the attraction thoroughly tions had a rational basis. fact, therefore, specialists. They particular appropriateness had people that of Ohio built recognition springing from beyond physical im- their own people of Ohio entitled to the is no in- mediate needs beds flowing natu- benefits they dication that gratuitous intended to confer rally made the contributions benefits the non-con- and the burdens shouldered. tributing people of other counties The situation is not altered Ohio and West or to dilute the plaintiffs, result ancillary fact that the as a benefits County, by contributions, unique system charges, under- had *6 provide took to That themselves. who were residents of hospitals as had a constructed wider County, Virginia. is it West Nor sim- “service area” than Ohio significant his that Dr. Sams maintains ply steps collateral result taken signifi- for the residence citizens to secure thing cant is that he and the kind, quality of medi- themselves plaintiffs maintain conduct their they cal services wanted. Bellaire, practices clinic their purposes If contributors of If their intention was Ohio. were funds with which the residing Wheeling primarily realized, built and are to it be Virginia, it and Ohio specialists supposed that the and other essential have lo- would be would sought, by cated their clinic and their offices there. Indeed, plain- contributions, the other Dr. Sams and their to attract financial readily bring readily themselves tiffs can within for the be available care by relocating regulation their offices treatment of the residents Ohio Coun- Wheeling. practices Mean- ty. Specialists in an- in another long they persist while, in center- pri- presumptively as other marily state would Bellaire, Ohio, ing practices I the care and concerned county, they completely fail to show persons think in that treatment regulations ei- lack a rational basis Broad ex- residents of Ohio applied other medi- them or to hospital privileges ther as of staff or tension inevitably practicing serv- di- cal doctors would non-resident doctors pa- ing, exclusively primarily, advantage lute the sought tients. and un- regulations appear me to Since rationality, I think a firm basis them down. power to strike we have opinion we, judges, were If alternative other conceivable that some opinion preferable, in which
would be join, prepared I am not
enough the strictures to invoke protection
equal of the Four- clause
teenth Amendment. Petitioner, BECK,
Herbert
SECURITIES EXCHANGE COMMIS- SION, Respondent.
No. 19018. Appeals Court of
United States
Sixth Circuit.
July 10, 1969. *7 Gardiner,
Donald B. Columbus, Ohio, Young, David J. Columbus, Ohio, Dun- bar, Murphey, Kienzle & Columbus, Ohio, counsel, brief, petitioner. North, Walter P. Associate General Counsel, Exchange Securities Commis-