147 Tenn. 681 | Tenn. | 1922
delivered the opinion of the Court.
Miss Wallwork instituted this suit to recover damages for injuries sustained while a patient at the City Hospital.
The defendants to the suit are the city of Nashville, the hospital commissioners of said city, Miss Wickham and Miss Wright, two nurses in charge of the ward in which plaintiff was a patient at the time of her injury.
The superintendent of the hospital, Dr. Fessey, was also made a party defendant, but plaintiff dismissed her suit as to him before the trial.
The motion for a directed verdict as to all of the defendants except Miss Wickham was based upon the idea that said hospital was created and existed purely for governmental purposes, which exempted the city and said board of hospital commissioners from liability for injury received by a patient due to the negligence or misconduct of its employees.
As to Miss Wickham, the motion for a directed verdict was sustained upon the ground' that there was no evidence connecting her with the injury complained of. •
Upon appeal, the court of civil appeals affirmed the judgment of the trial court, and the case is before us upon petition for writ of certiorari filed on behalf 'of the plaintiff.
The facts of the case, as detailed by Dr. Parrish, are as follows: ■ ’: I' i
“I am the family physician of A. II. Wallwork, and plaintiff, Louise Wallwork, was my patient and under my care. Her condition became such that I advised that she be taken to the City Hospital for surgical operation for appendicitis. So on the 9th of October, 1920, I made arrangements with the hospital authorities at the City Hos.-pital for her reception at the hospital and for an operation for appendicitis by Dr. Fessey, the surgeon in charge of the City Hospital, and she was taken to the hospital on that date and received as a patient in the hospital, and was operated on by Dr. Fessey about 11 o’clock a. m. on that date. She was admitted to the hospital as a pay pa
It also appears from the testimony of A. H. Wallwork, father of the plaintiff, that upon reaching- the hospital he paid to the hospital authorities $19, which included $5 for the use of the operating room, and $14 for board, nursing, medicine, etc., for his daughter for one week.
The charter of the city of Nashville imposed upon it the duty of maintaining a hospital and provided for its management. Among the provisions of said charter are the following:
“Sec. 30. Be it further enacted that the board of commissioners of said city shall, within the limitations of this act provided, have powers by ordinance. . . .
“(3) To make all rules and regulations to secure the general health of the inhabitants; to prevent introduction of contagious diseases into the city; to make quarantine laws for such purpose, and enforce the .same within ten
“Sec. 41. Be it further enacted that in said city there shall be a board to be known as the 'board of hospital commissioners/ said board to consist of five (5) members, who shall at the time of their election have been citizens of the territory embraced within the corporate limits of said city for five (5) years prior to the time of their elec-. tion. ... No compensation shall be received by any member of said board of hospital commissioners for any services performed by him as such commissioner; and each member of said board shall serve during good behavior, and until his successor is elected and qualified by the board of commissioners of said city. . . .
“The board of hospital commissioners is hereby authorized and empowered to employ a superintendent and surgeon for each hospital, and all other employees,' and to fix their compensation;, but 'no person shall be eligible to the office of superintendent and surgeon in charge of any hospital or hospitals unless he shall be a physician of reputable character in his profession, a graduate in medicine of skill and culture, who shall have had at least five (5). year s’ experience in the practice of his profession prior to the date of his election, two (2) years of which shall have been spent by him in some reputable hospital. . . .
“All nurses, attendants, and other medical employees shall be employed by the superintendent and surgeon in charge, and their compensation fixed by him, but betAveen limits prescribed by the board of hospital commissioners. . . .
“All money collected from private or pay patients at the City Hospital, as Avell as from clinical fees which, may
“The board of commissioners of said city is hereby authorized and empowered to include in the annual levy of taxes for said city a special hospital tax of one-third of one mill on each dollar’s worth of property assessed for city taxation, and the money thus levied shall constitute a special fund with which to operate.the affairs of the hospital as provided by this act; provided, however, that the board of commissioners of said city shall have power to include in the yearly budget money over and above that realized from the special tax herein authorized in the event said tax is levied and collected, and to appropriate such surplus money for the maintenance and conduct of such hospitals. . .
It is conceded that a hospital created and existing for purely governmental' purposes, and under the exclusive ownership and control of the city, is not liable for injuries to a patient caused by the negligence or misconduct of its employees.
But counsel for plaintiff contends that since this hospital maintained a wing for those who were enabled to pay in part the city thereby became liable for any injuries re-
This question has not been heretofore passed upon by this court in any reported case. The court, in Abston v. Waldon Academy, 118 Tenn., 24, 102 S. E., 351, 11 L. R. A. (N. S.), 1179, and Gamble v. Vanderbilt University, 138 Tenn., 616, 200 S. W., 510, L. R. A., 19180, 875, held that eleemosynary educational institutions were exempt from liability for injuries due to the negligence of their agents and employees even where fees were charged.
It may be said by the very great weight of authority it is now héld, on grounds of public policy, that a private charitable hospital which has exercised ordinary care in the selection of its employees is not liable for injuries resulting from their negligence.
In 11 Corpus Juris, 377, it is said:
“Except in some jurisdictions, it is a rule that those who furnish hospital accommodations and medical attendance, not for the purpose of making profit thereby, but out of charity, or in the course of the'administration of a charitable enterprise, are not liable for the negligent or other tortious acts of the physicians, nurses, attendants, or other persons in their employment or service, but only for their want of ordinary care in selecting them. Also, except in some jurisdictions, the same rule applies where plaintiff has paid for the services rendered, where the •amount received was not for private gain, but to accomplish more effectually the purposes for which the charity was founded.”
The, authorities support- the doctrine that a charitable municipal hospital is exempt from liability, due to the negligence of its employees, even where fees were paid by the patient.
In McQuillin on Municipal Corporations, vol. 6, section 2669, the author says:
“The duty of a municipal corporation to conserve the public health is governmental, and it is not liable for injuries inflicted while performing such duty. The decisions are practically unanimous in holding that a municipality is not liable for the torts of its board of health or other health officers on the theory that the duty in regard to preventing sickness or caring for sick people is strictly a governmental or public function.
“Accordingly a municipal corporation is not liable for the negligence of its officers and employees in conducting
“On the other hand, if a municipality has power to, and does, maintain a hospital for revenue, there is no doubt but that it would be liable for the torts of persons employed about the hospital; but if it conducts the hospital for revenue, hut without power to do so, it is not liable. However, the fact that fees are charged some patients in a city hospital, where it does not charge fees of all patients, does not render the municipality liable for negligence in connection therewith.”
In Browder v. City of Henderson, 182 Ky., 771, 207 S. W., 479, the plaintiff brought suit to recover damages due to the negligence of the employees of the city of Henderson, it being charged that while a patient in said hospital the nurse in charge placed a hot water jug to her feet, which resulted in the burning of her feet. The court in the opinion, after announcing the general rule to the effect that the city was exempt, said:
“Counsel for appellant seeks to malee a distinction between this case and certain of the cases cited, because the hospital maintained by the city of Henderson receives and cares for both free and pay patients; it being earnestly contended that, because the city receives pay for certain services and attention, the hospital is conducted, to use
“ ‘The maintenance of a municipal court and prison is in pursuance of the city’s governmental functions, and in so doing it is but an arm of the State in upholding the public peace and safety. The principle is well established that municipal corporations are not liable either for the nonfeasance or malfeasance of their public officers in the discharge of their governmental functions.’
“In Bell v. City of Cincinnati, 80 Ohio St., 1, 88 N. E., 128, 23 L. R. A. (N. S.), 910, this same point was made, and the court rejected it, stating:
“ ‘There is no evidence that one penny of profit was realized on the disposition it made of stone, if that be a matter of concern. In so far as the facts inform us, or fail to inform us, the receipts for stone sold would only part pay the expenses of keeping and guarding the prisoners while engaged in the quarry, and we will hesitate to be
“Benton v. Boston City Hospital, 140 Mass., 13, 1 N. E., 836, 54 Am. Rep., 436: Plaintiff had a sick child, which had been in the hospital for some time, and on a visit to see said child, while leaving the hospital, the mother was injured.through a defective stairway, and brought suit for damages. It was shown that the city council appropriated a considerable sum of money for the maintenance of the hospital, and this was supplemented by money received from certain pay patients, all of which went toward the maintenance of the hospital, and it was sought to hold the city liable for the negligence of the superintendent in permitting the steps to become defective and in a dangerous condition, but the court affirmed the judgment of the lower court in sustaining a demurrer to the petition.
“The court has held that charitable or eleemosynary institutions are not liable for the negligence of their employees, and the fact that they receive pay from some of their patients does not alter the rule. Cook, Adm'r, et al. v. John N. Norton Memorial Infirmary, 180 Ky., 331, 202 S. W., 874. In this case the court says:
“ ‘An examination of the authorities has convinced us that a purely charitable institution, such as defendant’s hospital is described in the pleadings to be, is not amenable to its patients, although paid ones, for any damages which they may have sustained growing out of alleged
In Caroline Tollefson, Adm’x, v. City of Ottawa, 228 Ill., 134, 81 N. E., 823, 11 L. R. A. (N. S.), 990, the petition alleged that the defendant city possessed, controlled, and managed the hospital, and that plaintiff’s decedent, while sick, was received by the defendant into said hospital as a patient, and sought damages because of the negligent conduct on the part of defendant and its agents in caring for deceased during her sickness, which negligence resulted in the aggravation of her malady and later in her death. In the third count it was alleged that the . hospital was maintained by the defendant for revenue and profit. A demurrer to said petition was sustained, and affirmed on appeal.
In Watson v. City of Atlanta, 136 Ga., 370, 71 S. E., 664, the plaintiff sought to recover damages for personal injuries alleged to have been received in consequence of being run upon and knocked down by a Grady Hospital ambulance in charge of and under the control of agents and employees of the city. In holding the city not liable, the court said:
“It is true that it is alleged in this petition that ‘in the maintenance of said Grady Hospital the city of Atlanta charged fees for patients' entering thereinbut we cannot construe this allegation to be an affirmative allegation that the city requires of all its patients payment for expense of board and treatment at the Grady Hospital, as would be the case of a private hospital maintained and operated for profit and the pecuniary advantage of those who own and operate it. Had the distinct allegation been that the hospital was established and operated for private gain and profit by the city, quite another case would have been made from that presented in this petition. If the pleader
Learned counsel for the plaintiff have cited no authorities taking a contrary view to that expressed in the foregoing cases, and, upon both reason and authority, we are of the opinion that the court committed no error in sustaining a directed verdict in favor of the city and the hospital commissioners. There was no allegation or claim that the city or the commissioners did not exercise ordinary care in the selection of its employees.
No error is assigned upon the action of the-court in directing a verdict as to Miss Wickham. The only remaining question is was there any evidence to support the verdict of the jury in exonerating Miss Wright from liability? There is no direct evidence that Miss Wright placed the hot water bottle on the bed.
Henry Wallwork, a cousin of the plaintiff, testified that he went to the hospital in the automobile with plaintiff and her father and mother. This witness further testified :
“Q. Was it hot? A. Yes, sir.
“Q. How hot was it? A. It was so hot.yon couldn’t hold your hand on it.
“Q. Did yon call the attention of any one out there in the hospital to that fact? A. I told that colored fellow that was in there, and he said he didn’t have nothing to do with it, and he said he would tell the nurse, and she came in there, and she said it was supposed to be in there. I told her it wasn’t supposed to be that hot. She said that wouldn’t hurt her like she -was, asleep.
“Q. Which one of these nurses was it you were talking to? A. Miss Wright.
“Q. You know Miss Wright, do you? A. Yes, sir.
“Q. And when she came in there and you called her attention to the fact that this hot water bottle was too hot, that it ought not to be in the bed when it was that hot, did she examine it? A. No, sir.
“Q. Just said it ought to be there, and it wouldn’t hurt this patient while she was asleep? A. Yes, sir.
“By the Court:
“Q. Which one was it? A. Miss Wright.”
The substance of his testimony is that he called Miss Wright’s attention to the fact that the water bottle was too hot, to which she replied (without examining it), “it was supposed to be in there.”
This alleged act of negligence on the part of -Miss Wright cannot be the basis of a recovery for the reason that no such allegation of negligence was charged in the declaration.
This witness further testified that he did not know who placed the bottle on the bed.
A. H. Wallwork, father of the plaintiff, testified:
“Dr. Parrish, my wife, Louise, and I went to the hospital in a car together, and I don’t think any other friend or member of the family came to the hospital the morning Louise was operated on.”
The plaintiff, in her testimony, said: “I was carried to the hospital, City Hospital, for an operation by Dr. Fes-sey. My father and mother and Dr. Parrish carried me to the hospital.”
Mrs. Wallwork, the mother of plaintiff, testified: “My husband was only friend .or member of family who joined me at hospital before my daughter was carried to operating room.”
The foregoing evidence tends to negative the idea that Henry Wallwork accompanied plaintiff and her family to the hospital as testified to by him. He was the last witness introduced for the plaintiff.
In view of the fact that the jury, the trial court and the court of civil appeals rejected this evidence, we cannot say that they did so arbitrarily, as insisted by counsel for the plaintiff, when the foregoing testimony and circumstances detailed above are taken into consideration. Excluding this evidence there is nothing upon which this wrong can be charged to Miss Wright.
Dr. Parrish testified that it was the duty of Miss Wright and Miss Wickham to place the hot water bottle properly, and, such being their duty, it may be presumed that one or the other so placed it. But we do not construe Dr. Parrish’s testimony to mean that it was a joint duty, but
Mrs. Wallwork’s testimony to the effect that she heard Miss Wickham say that she did not place the bottle on the bed is not substantive evidence to the effect that Miss Wick-ham did not so place it, nor is it evidence imputing to Miss Wright the responsibility for the wrong.
Upon the whole, we find no error in the judgment of the court of civil appeals, and it will be affirmed with costs.