165 Wis. 166 | Wis. | 1917
The following opinion was filed December 5, 1916:
We have examined the evidence relative to the alleged negligence of Henke and Mast and are satisfied that the court properly set aside the finding that they were wanting in the exercise of ordinary care in permitting the nurses to attend plaintiff after the operation. There is no evidence to show that if the nurses were incompetent — a fact by no
The court also properly dismissed the action as to the defendant La Crosse Hospital Association. The evidence shows that it is an eleemosynary institution paying no dividends and is largely supported by charitable donations; that the fees charged from patients able to pay do not support it; and that the weekly charge made to the plaintiff was not enough to cover the cost of the services rendered to him.
The authorities in this country almost uniformly hold that in the absence of any negligence in theii selection charitable hospitals are not liable to their patients for the torts of their employees. McDonald v. Massachusetts Gen. Hosp. 120 Mass. 432; Powers v. Massachusetts H. Hosp. 109 Fed. 294, 65 L. R. A. 312; Thornton v. Franklin Square House, 200 Mass. 465, 86 N. E. 909, 22 L. R. A. n. s. 486; Downs v. Harper Hosp. 101 Mich. 555, 60 RT. W. 42, 25 L. R. A. 602; Pepke v. Grace Hosp. 130 Mich. 493, 90 N. W. 278; Farrigan v. Pevear, 193 Mass. 147, 78 N. E. 855, 7 L. R. A. n. s. 481; Hearns v. Waterbury Hosp. 66 Conn. 98, 33 Atl. 595, 31 L. R. A. 224; Jensen v. Maine E. & E. Infirmary, 107 Me. 408, 78 Atl. 898, 33 L. R. A. n. s. 141; Taylor v. Protestant H. Asso. 85 Ohio St. 90, 96 N. E. 1089, 39 L. R. A. n. s. 427; Adams v. University Hosp. 122 Mo. App. 675, 99 S. W. 453; Gable v. Sisters of St. Francis, 227 Pa. St. 254, 75 Atl. 1087; Schloendorff v. Society of N. Y. Hosp. 211 N. Y. 125, 105 N. E. 92, 52 L. R. A. n. s. 505; Nicholson v. Atchison, T. & S. F. H. Asso. 97 Kan. 480, 155 Pac. 920, L. R. A. 1916D, 1029; Duncan v. Nebraska S. & B. Asso. 92 Neb. 162. 137 N. W. 1120, 41 L. R. A. n. s. 973;
In Alston v. Walden Academy, 118 Tenn. 24, 102 S. W. 351, 11 L. R. A. n. s. 1179, and in Parks v. Northwestern Univ. 218 Ill. 381, 75 1ST. E. 991, 2 L. R. A. n. s. 556, the same immunity was applied to schools. . In Fire Ins. Patrol v. Boyd, 120 Pa. St. 624, 650, 15 Atl. 553, 1 L. R. A. 417, immunity was held to exist as against a stranger to the patrol who was injured by its servants. But in McInerny v. St. Luke’s H. Asso. 122 Minn. 10, 141 N. W. 837, and Hewett v. Woman’s H. A. Asso. 73 N. H. 556, 64 Atl. 190, 7 L. R. A. n. s. 496, defendants were held, liable to their servants for failure to perform nondelegable duties which as masters they owed them. Liability has also been enforced in favor of strangers or employees. Basabo v. Salvation Army, 35 R. I. 22, 85 Atl. 120, 42 L. R. A. n. s. 1144; Hordern v. Salvation Army, 199 N. Y. 233, 92 N. E. 626, 32 L. R. A. n. s. 62, and note; Bruce v. Central M. E. Church, 147 Mich. 230, 110 N. W. 951, 10 L. R. A. n. s. 74 and note.
Upon the precise question of the liability of charitable hospitals to their patients for the negligence of employees selected with due care, we have been able to find but two cases in this country that hold them liable. These are Glavin v. Rhode Island Hosp. 12 R. I. 411, and Tucker v. Mobile I. Asso. 191 Ala. 572, 68 South. 4, L. R. A. 1915D; 1167. In Rhode Island the rule of the Glavin Case was changed by sec. 38, ch. 177, Gen. Laws 1896, and in the Alabama case there was a strong dissenting opinion.' The latter
While our courts disclose great unanimity in declaring charitable hospitals immune against claims of their patients based upon the negligence of their servants, they are by no means agreed as to the grounds of immunity. Some place it upon the ground of public policy; others upon the ground that since the funds of the institutions are impressed with a trust for charitable purposes they' cannot be diverted to other uses; and still others upon the ground of an implied waiver on the part of voluntary recipients of the charity of any claim for damages. Without discussing the relative merits of these different grounds, we prefer to rest our decision upon the principle that since these charitable hospitals perform a gmsT-public function in ministering to the poor and sick without any pecuniary profit to themselves, the doctrine of respondeat superior should not be applied to them-in favor of those receiving their charitable services. As stated by Best, C. J., in Hall v. Smith, 2 Bing. 156, “The maxim of respondeat superior is bottomed on this principle, that he who expects to derive advantage from an act which is done by another for him must answer for any injury which a third person may sustain from it.” Since the hospital derives no profit from its work and since it is founded for the sole purpose of conserving the health and life of all who may need its aid, and since it ministers to those who cannot pay as well as those who can, thus acting as a good Samaritan, justice and sound public policy alike dictate that it should be exempt from the liability attaching to masters whose only aim is to engage in enterprises of profit or of self-interest. The patient who accepts the services of such an institution, if injured therein by the negligence of an employee, must be content to look for redress to such employee alone. The principle invoked is analogous to that which exempts municipalities from the rule
All the cases holding charitable hospitals immune that have spoken upon .the subject agree that the exemption from liability applies to pay as well as to free patients.
Appellant claims he should have a new trial upon the question, of whether or not the defendant hospital exercised due care in the selection of the nurses. We deem the evidence would not warrant us in sending the case hack for a trial upon that issue.
By the Court. — Judgment affirmed.
The appellant moved for a rehearing.
In support of the motion there was a brief by Baldwin & Bosshard of La Crosse, and separate briefs signed respectively by Christian JDoerfler of Milwaukee and Elmore T. Elver of Madison as amici curice.
In opposition to the motion there was a brief for the respondent La Crosse Hospital Association by McConnell & Bchweizer of La -Crosse.
The' motion was denied, with $25 costs, on March 13, 1917.
