112 N.Y.S. 566 | N.Y. App. Div. | 1908
This is an action against a charitable hospital corporation for damages for injuries to the plaintiff by being run into in the street by an. ambulance of the defendant by the negligence of the driver. There was a dismissal on the ground that charitable corporations are not liable for the negligence of their agents or servants, i. e., that the rule respondeat superior does not apply to such corporations.
The question presented has been discussed in a large number of cases in this country (American and English Annotated Cases, vol. 4, page 104). The opinions and decisions are not only conflicting,
1. There are a considerable number of'them, such as Corbett v. St. Vincent's Industrial School (177 N. Y. 16) and Benton v. Trustees of Boston City Hospital (140 Mass. 13), which serve as examples of the whole class, in which non-liability rests on the ground that the charitable institution was acting as an agency of sovereignty, and as such shared with it its immunity from being sued, as the familiar rule is. These decisions are promiscuously cited as applicable or as make-weights in cases where such agency did not exist, but obviously have to be left out of consideration in so far as the point actually decided in them is concerned; and the expressions in the opinions outside of that are not binding.
2. In the great bulk of the cases the negligence sued for was that of physicians or surgeons, or of nurses and similar employes, to patients in such charitable institutions ( Van Tassell v. Manhattan Eye & Ear Hospital, 15 N. Y. Supp. 620; Haas v. Missionary Society of Most Holy Redeemer, 26 id-. 868 ; 6 Misc. Rep. 281; Ward v. Saint Vincent's Hospital, 39 App. Div. 624; 65 id. 64; 78 id. 317; Collins v. N. Y. Post Graduate Med. School, 59 id. 63 ; Joel v. Woman’s Hospital, 89 Hun, 73 ; Wilson v. Brooklyn Homeopathic Hospital, 97 App. Div. 37; McDonáld v. Mass. Gen. Hospital, 120 Mass. 432; Hearns v. Waterbury Hospital, 66 Conn. 98; Conner v. Sisters of St. Francis, 10 Ohio Dec. 86; Glavin v. Rhode Island Hospital, 12 R. I. 411; Downes v. Harper Hospital, 101 Mich. 555; Powers v. Mass. Homeopathic Hospital, 109 Fed. Rep. 294; Hewett v. Association, 73 N. H. 556; Bruce v. Central Meth. Ep. Ch., 147 Mich. 230). It may well seem strange that lack of liability in such cases should be so invariably put on the ground that the defendant for being a charitable institution was not
3. We are now come, by process of elimination, to a precise test of whether, and, if so, in what cases, charitable institutions are. exempt from the general rule respondeat superior in respect of the torts of their servants.
a. In,many of the cases much is made of the fact that such institutions'derive no profit or benefit, on the question of whether such rule applies, or, indeed, whether they can be held liable for any torts. But that exemption from liability does not arise from that fact is manifest from the undoubted liability of other similar institutions which derive no profit or benefit (Rector, etc., of Church of Ascension v. Buckhart, 3 Hill, 193 ; Blaechinska v. Howard Mis
"b. In many if not most of the cases a ground for the non-liability 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 opinions 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 of judges in certain rather old English cases, which were repudiated in later cases, and never had a direct application to actions of tort against charitable corporations such as are now common. It is true that an action does.not lie against a trustee under a will, or the like, as such, for his torts or those of his servants in the affairs or administration of the trust. He has to be sued individually; but the reason is purely technical, and the courts allow the judgment against him individually for damages to be paid out of the trust funds,, if he was free from wilful misconduct in the tort. Ho rule, therefore, that trust funds may not be used to pay damages for torts in the administration of the trust exists even in the case of ordinary express trusts, let alone in the general trusts of charitable corporations (Powers v. Mass. Homeopathic Hospital, 109 Fed. Rep. 294; Bruce v. Central Meth. Ep. Ch., 147 Mich. 230; Hewett v. Association, 73. N. H. 556). The position of such a corporation in respect of its torts would seem to be the sáme as that of an individual carrying on similar charitable work with donated funds or with his own funds. I do not understand that if my servant, sent out by me on an errand of mercy or charity, negligently runs over one in the street, I am not liable for his act.
5. It is probably manifest enough at this stage that there are tort cases against such institutions which do not come within the foregoing classifications and discussion at all. I refer to cases where the duty owed is one specifically cast upon the defendant by law, and therefore incapable of being evaded or escaped by being delegated to any servant. For instance, a section of coping, or a. blind hanging by one hinge, or a ceiling of the hospital, might fall and injure an employe, a patient or an outsider, or a broken coal-hole cover in the yard or sidewalk might do a like injury (Blaechinska v. Howard Mission, etc., 56 Hun, 322), or a scaffold put up by the institution for the use of workmen might be defective and fall (Bruce v. Cent. Meth. Ep. Ch., 147 Mich. 230), or there might be neglect to supply a physician or surgeon to a patient brought in (Glavin v. Rhode Island Hospital, 12 R. I. 411). The decision in the recent case of Abston v. Waldon Academy (118 Tenn. 24), where the negligence was the omission to supply fire escapes as required by law, by which an Inmate of a charitable educational institution was injured, does not seem to be well bottomed. It is put on the ground of diversion of trust funds which has been discussed and found wanting in the foregoing; and the negligence being that of the institution itself, i. e., in respect of a duty cast upon it by law, the decision • cannot, it would seem, be put on the ground .of non-liability for acts or omissions of servants in the routine of their employment. Liability in such cases, does not rest on the rule respondeat superior, but on the narrower one that the duty is one for the defendant to perform itself, and into which the question of the negligence of servants does not enter. Of course if such institutions were to be held, not liable for their torts or neglects in respect of duties which cannot be delegated to servants, they would be held not liable for any torts of servants also for the same reason of exemption, whatever it might be; but there is not any disposition to exonerate them from the former liability. For instance; the cases generally admit that they would be liable for
Woodward, Jenks, Hooker and Rich, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.