*1 v. Milwaukee Appellant, Center, Inc., Koenig, Blood another, Respondents. 31, 1964. March 4 March
[03] co 1-0 *3 For the there was a brief appellant J. by Sapiro Alfred McKinnon, Kersten & P. attorneys, George Kersten of counsel, all Milwaukee, and oral argument P. by George Kersten.
For the Milwaukee respondent Center, Inc., Blood there was a brief by Foley, Sammond & Lardner and James P. Brody Collins, and John R. Milwaukee, all of and oral argu- ment Mr. by Collins.
For the Memorial respondent there Hospital was a brief Wake, Prosser, Quale, Zimmermann & and oral argu- ment J. Wiedebach, R. all of Milwaukee.
Beilfuss, J.
Issues. 1. Does of blood furnishing for a transfusion aby hospital constitute a sale so as to rise to an give action for breach of *4 ? warranty
2. Do the or pleadings affidavits in to opposition motion for summary set judgment forth facts sufficient to warrant a trial on a cause of action for negligence arising prior of the abrogation doctrine of charitable immunity?
3. Do the of provisions the insurance policies purchased by the hospital and the blood supplier constitute waivers of charitable ? Warranty.
Breach of of a cause of the alleges plaintiff The amended complaint not but hospital of warranty against for breach action nor Therefore, neither discuss we center. the blood against breach of warranty of action for a cause whether decide center which collected the blood be asserted against could it to the furnished hospital. blood and blood and by hospital per- The given plasma was while a at of a patient sonnel the direction physician upon in an auto- of received injuries for treatment the hospital was made for the A charge mobile accident. specific $30 rebate of if the with to a blood and transfusion right $15 Plaintiff contends that the furnishing blood was replaced. Act, that the a sale under Sales of the blood constituted that the or warranted blood plasma hospital impliedly he fit for use that serum was and proper plaintiff, thereon, that it or harm- injurious relied was devoid substance. The addition to its denial of these ful hospital, contends that the transfusion was an incidental allegations, contract for the of an overall rendering personal services rather than a sale of commodities. statute relied sec. 121.15 upon by plaintiff
which provides:
“Where the makes buyer, expressly by implication, known to the seller the for which the particular purpose are and it that the relies on goods the seller’s skill or required, appears buyer there . . . is an
judgment war- implied that shall be fit ranty goods for such reasonably purpose.” a Whether blood transfusion administered aby hospital constitutes a sale of or rendition of a service goods has not been heretofore determined this court. rule of the cases other majority state courts is of a blood transfusion to a administering patient by is not a sale within the Uniform meaning
329 and, therefore, cannot be the basis of Sales Act an action for implied warranty.
In Perlmutter v. Beth David 308 N. Y. Hospital (1954), 100, 792,1 123 N. he E. that was (2d) plaintiff alleged a blood transfusion viruses. The given containing jaundice 104, of the York majority New court held appeals (pp. 106, : 107)
“The essence the contractual between hos- relationship and pital for, patient readily apparent; patient bargains available,
and the to make the human hospital agrees skill and material of physical medical science to the end that health be patient’s restored. and,
“Such a contract is services, one for clearly as just it is not divisible. clearly, cannot sale and Concepts purchase be attached to the
separately healing materials —such medicines, as or, indeed, drugs, the hos- supplied by blood— for a as pital of the price medical services it offers. . . .
“The of blood supplying was hospital sub- entirely ordinate to its function of paramount trained furnishing and personnel facilities in specialized an endeavor to restore health. plaintiff’s It was not for blood—or iodine or ban- dages but the bargained, wherewithal of —for staff hospital availability facilities to hospital whatever provide medical treatment was considered advis- able. The conclusion is evident that the of blood furnishing was an incidental only and very to the secondary adjunct services and, performed by therefore, was not within the provisions Sales Act. . . . And, indeed, “. .. semantics apart at the looking transaction for what is, it there actually can be no doubt that, when one into goes restaurant, he does inso order 1 reaching Other cases similar results are: Gile v. Kennewick Public Hospital (1956), Dist. 774, 48 (2d) Wash. 296 Pac. (2d) 662; Dibblee v. Dr. W. H. Latter-Day Groves Hospital Saints (1961), (2d) 241, 12 Utah 1085; 364 (2d) Pac. Hidy v. State 756, (2d) N. Y. Supp. 985; 163 N. (2d) Y. Goelz v. J. K. & Susie L. Wadley Research Inst. B. (Tex. & Bank Civ. App. 1961), 350 (2d) S. W. subject 573. The matter is discussed 777, in an annotation in 59 A. L. (2d) R. page at *6 sell, has food. in truth to namely, what the restaurant buy so, when one enters a as a
That is not though, hospital there, he not to medicines or not to goes buy pills, patient; blood, or or to ob- or iodine serum but bandages purchase tain a course of treatment in the cured of hope being what ails him.” 323,
In Betehia v. Cod 10 Cape Corp. Wis. (1960), (2d) 64, 103 N. W. we held that a of a restaurant (2d) patron a chicken bone in a injured chicken sandwich by purchased and served to him in a restaurant did state a cause of action for breach of under sales stat implied warranty The Betehia ute. Case must be As stated distinguished. Beth Perlmutter David Hospital, supra, purpose v. the restaurant was to food entering buy and the purpose a a is to receive patient entering hospital tech professional nical treatment care to and restore his health. blood,
We conclude or furnishing serum plasma, and the of these substances administering to a while patient in a for treatment for illness or hospital injury an only incidental of his main there, for part purpose being namely, to obtain advice professional and care to his regain health. Even there be a though may and specific separate charge for a blood transfusion it is not a sale but a of an overall service. The acts of the a service hospital being and not a sale do not rise to an action for give breach of war- implied ranty. court,
The trial
consistent with the
of cases of
authority
other
did not
jurisdictions,2
between a sale or
distinguish
service but reasoned that the same facts could constitute
either a breach of
warranty
implied
that
negligence
2
Hospital
Kennewick Public
Gile v.
Dist.
(1956),
48
(2d)
Wash
662;
774,
Harper Hospital
Downes v.
(2d)
296 Pac.
555,
42; Roosen
Brigham
v. Peter Bent
Hospital
Mich.
60 N. W.
(1920), 235 Mass.
Although sames transfusion, the rule a blood administered we that adopt is service rather than a a hospital, sale. Negligence. the affidavits sub- concluded from trial court properly both that judgment
mitted on the motions summary for center, in fact defendants, the blood were not now does take charitable institutions. issue with this finding. *7 the doctrine of char-
In Doctors Hospital, supra, v. Kojis to acts was defense abrogated negligent itable as immunity to all of and causes of charitable institutions organizations 10, The which after 1961. facts upon January action arising 9, 1958, and relies August Sep- occurred between plaintiff was, 7, of charitable immunity tember 1958. doctrine in this therefore, existent at times material action. still not doctrine does contend seriously plaintiff to common-law is not a defense of charitable immunity good the center. He does the and blood of negligence the of the facts here the beyond protection contend that go that the doctrine argues doctrine. charitable-immunity He and that defendants should both ipsa loquitur apply of res of violation of se reason “pure were food per negligent statute, 97.25, sec. Stats. drug” and this cites Wilson Evan In of v. support position 111, Lutheran Church 202 Wis. 230 W.N. gelical (1930), 708, as a charitable liable owners of holding institutions statute, for violation public building safe-place 393, St. Rose v. Congregation (1953), Smith Wis. to 61 N. which refused extend doctrine (2d)W. to bar action for charitable an nuisance.
The doctrine of res does create loquitur not new ipsa any In or different cases where the doctrine of type rights. res is ipsa loquitur is still applied principal inquiry neg“ The doctrine is device ligence. only procedural involved in those instances where defendant had exclusive control of accident, instrumentality and the causing damage which would not have ordinarily occurred without negli- on the gence defendant. The procedural require- ment is then that the defendant forward with the go proof show he was not Even if we held that the negligent. doctrine of res ipsa case, could be loquitur used this is inquiry still of the kind negligence that is to the subject defense of charitable immunity.
Sec. Stats., 97.25 (1) known as the Pure Food Act, and Drug provides: “(1) Adulteration. No shall sell person or any drug food
which is adulterated. “(4) A is Drugs. drug adulterated: If when (a) sold under a name in the recognized official United States phar- or national macopoeia it differs formulary from the standard ,of or strength, quality purity prescribed in the latest edition thereof; If its (b) strength, or quality falls purity below the standard professed under sold; is it If it con- (c) tains wood alcohol when except intended for external use only and so labeled.”
While did not plaintiff nor argue support by affidavit his (cid:127)claim of a violation of sec. 97.25 Stats., in the trial court, he did a violation allege of the statute in his complaint as of his cause of action in negligence the against hos- and did facts pital without allege reference to the statute which he claims states a violation of the statute in his claim the blood center against and has made reference to this claim in his brief filed in this court.
If we assume that the has plaintiff properly raised the issue and further assume there is a that either showing
COCO co so as to be negli- the statute have violated both defendants the se, protection beyond is such negligence gent per ? doctrine charitable-immunity se would of per negligence that a determination
The most were that defendants be to establish would for the plaintiff do be in connection with This would negligence negligent. were organized for which they functions and purposes precise these From cir- as charitable organizations. and operated of the inference is to draw the jury permitted cumstances adducing proof any without plaintiff’s negligence on defendants’ part. acts of negligence specific Purchase Waiver Immunity by Insurance. Liability had the blood center purchased Both time in were in force at the insurance liability policies the terms of these that contends question. a waiver of the thereto constitute or endorsements policies the rule of Marshall v. under defense of charitable immunity 496, 118 N. W. (2d) Wis. Bay (1963), (2d) Green 715. it that city
In the Marshall v. Green Case Bay appears which specifically pro- a liability indemnity policy purchased the defense of would not raise govern- vided that insurer immunity. mental at supra, in Marshall v. Green Bay, pages
We stated and 502: com-
“This liability policy important provision insurer, who is in control of to mean the understood monly the defense, of the in- will not raise defense on behalf such this agreement sured claimant. ... We construe against the city to be a waiver of governmental immunity by recog- nized and the insurer. Such cannot be agreed insurer, resuscitated action of the or the city by subsequent hold, however, or both. We not ... do municipality *9 waives its it takes out a when liability policy does not contain or the condition to refrain from agreement the defense of raising governmental immunity.” The the issued to contained the policy hospital following provisions:
“I Professional Hospital Liability “To on behalf of the Insured all sums which the In- pay sured shall become to as be- legally obligated pay damages death, cause of sustained injury, including by any person, out of error or mistake arising malpractice, committed during the in or policy to render to period (a) rendering failing such medical, or to the the person, person inflicting injury, treatment, dental or surgical, nursing furnish- including of food or in ing therewith, connection beverages or in (b) medical, or furnishing or dispensing drugs dental or surgical or if the supplies Insured has occurs appliances injury after the Named others,
relinquished thereof to possession or (c) or handling on performing autopsies deceased human bodies.” these
By provisions insurer to agrees on pay behalf of those claims hospital was hospital ob- legally to ligated pay. was not hospital legally obligated pay claims barred defense of by charitable immunity. Nowhere does a condition or agreement to refrain from appear rais- the defense of charitable ing immunity. insurer, either not, therefore, singly together, have to waive the
agreed defense of charitable immunity. The endorsement on the policy blood purchased by center is as follows:
“WAIVER OF IMMUNITY ENDORSEMENT and Charitable
“Municipal Organizations “It is that in agreed claim or suit for any covered damages policy, written except by named insured request officer, use, its duly authorized will not company either in the of claims or in the defense of adjustment suits *10 from tort insured of the insured, immunity the the against liability. Insur- The Travelers executed by is “This endorsement that com- afforded by insurance as respects ance Company Indemnity Travelers it is executed by only; pany afforded that company insurance by as respects Company only.” of the blood center the directors this endorsement
Under the blood on behalf of reserved to themselves specifically immunity. the of charitable the to invoke defense center right for of the motion in The affidavits and support pleadings the blood center show that sufficiently summary judgment of charitable immunity invoke its defense did informed of this election.3 insurer was the are likewise within of this endorsement provisions and char- in v. Green Bay, supra, stated Marshall exception of liability the purchase itable was not waived immunity by insurance. record the de- the trial court. the with Upon
We agree costs, with must for summary judgment, fendants’ motions be granted. the affirmed.
By Judgment Court.— I am agree in unable part). (dissenting Gordon, J. the in- insofar as it construes the with majority’s opinion as not con- the Blood Center surance of Milwaukee policy one of those of While I was a waiver immunity. stituting 18 in v. Wis. who dissented Marshall Green Bay (1963), 715, I believe that the holding 118 N. W. (2d) (2d) case is here. that controlling Endorsement,” “Waiver of Immunity
Under heading contained the following the Milwaukee Blood Center’s policy provision: agent present meeting of the direc An of the insured was at a they specifically raise the defense.
tors when made the election to
“It is that in or suit for claim cov- agreed any damages ered written of the named policy, except by request officer, insured its authorized not will duly company use, either in the or in adjustment claims defense insured, suits against immunity from insured tort liability.”
The waiver of which this court immunity found had arisen aas result of the insurance in the Marshall policy Case not distinguishable, in reasonably from the fore- my opinion, waiver of going appears policy insurance of the Milwaukee Blood Center.
Smazal, Dassow, Estate Appellant, v. Respondent.* 31, 1964.
March 4 March * costs, rehearing denied, Motion on for with 1964. June