131 Va. 587 | Va. | 1921
Lead Opinion
delivered the opinion of the court.
Durant Weston engaged of the defendant in error a room, board and the usual hospital service for his wife, who was expecting shortly thereafter to be confined. She was to be a pay patient, but the price was not agreed on. He did not know that the hospital was a charitable institution. He provided his own doctor. Mrs. Weston went to the hospital at the appointed time, and on August 31, 1919, about '5:30 A. M., gave birth to a child. The child, immediately upon birth, was delivered to the night nurse on that hall, and was given the treatment usually given in such cases— that is, was placed in a basket on a sterile towel, with a little blanket folded over it, with a hot-water bottle next to these coverings. The towel and the blanket were between .the baby and the hot-water bottle. When the baby was taken up at the usual time thereafter to be bathed and dressed, it was found to be so badly burned by the hot-water bottle that it died as the result of such bums in the course of a week. The nurse who attended the baby was one of the hospital nurses, who had been in training in the hospital for three years, had completed her training, had taken the State board examination as a practical nurse, and re
The evidence in the instant case does not warrant the inference that there was any negligence in the selection of the nurse whose negligence caused the injury complained of, As contended by counsel for the plaintiff in error, and the case does not present any question of a violation of a corporate or non-assignable duty.
This court did not hold, nor did Judge Keith say, in the case of Hospital v. Thompson, 116 Va. 101, 81 S. E. 13, 51 L. R. A. (N. S.) 1025, that charities “are subject to the general laws of the land, and cannot therefore claim exemption from responsibility for torts of their agents, unless that claim is based on a contract with the person injured.” The language quoted is the language of the Supreme Court of Michigan, in Bruce v. Central M. E. Church,
The father of the child engaged the' room, board, nursing, etc., for the prospective mother, and the - latter voluntarily entered the hospital pursuant to such engagement and submitted to its care and treatment, and they thereby assumed the risk as well for the child as the mother. Parents have and exercise such authority of necessity over their children of tender years. It is not only the right, but the duty, of parents to provide for the proper care and nursing of their very young children, and if heed be to provide for surgical operations upon them, or hospital treatment, or both. In these matters the wishes of young children are not consulted, nor their consent asked when they are old enough to give expression thereto. The will of the parents is controlling. In the case at bar, if the action of the parents was an assumption of risk on the part of the mother, it was on behalf of the child also, and they
The theory making charitable institutions liable for acts and neglects of its servants, and placing them in this respect on much the same footing as business corporations, first found expression in this country in Glavin v. Rhode Island Hospital, 12 R. I. 1, 34 Am. Rep. 675, decided in 1879. The decision, however, did not meet the approval of other States, and was not followed by them, and was
The court freely concedes that the great weight of authority in this country is against its conclusion, and, continuing, says: “This, within itself, is, of course, of much, force, and has led us to a very careful review of the cases, and a consideration of the principles upon which they may be said to rest. But it sometimes happens that in order to reach a safe harbor one must row against the current. We have here endeavored to show that the theory upon which those cases are founded does not measure with the rule of reason or sound logic, as we view it. While many of them reach the same end, yet they do so by entirely divergent routes and upon theories entirely inconsistent one with the other. For these courts we have the highest respect, but we cannot follow in their wake.”
The theory upon which this decision is rested is most strongly expressed in the following extract from the majority opinion:
*596 “The complaint alleges that the plaintiff agreed to pa,y a reasonable compensation; that is, such sum as is reasonable to be paid for the services rendered. She has depended upon no charity, she sought none, but was to pay a reasonable price for what she'received. Had she been a dependent upon another’s bounty, either to a great or small degree, there might be some plausibility in the argument that it would not lie in her mouth to say that the institution should be held to strict accountability for the negligent act of its servants, in administering the charity which she herself has sought. We are unable to conceive upon what principle the theory of ‘implied assent’ could be applied to one who pays full price and without regard to the nature of the institution from which she receives her service. There can be no valid reason why such a patient, dealing as she does at arm’s length with the hospital, should not stand in as favorable a position as the stranger, and yet many of the cases grant relief to the latter and deny it to the former.
“The principle, if held to be sound, must rest upon the fact that it is the giving and receiving of charily that creates the exemption, and not the nature of the institution administering it.”
The opinion then proceeds to “make it clear” that the court is not expressing any opinion as to the- position of one who in fact accepts a charity, but as to such person it says, “Sufficient unto the day is the evil thereof.” The opinion fails to take cognizance of what the charity consists of which the patient partakes, for what the hospital holds itself out to the public, and for what the patient pays. The public charity which the patient pays for the privilege of enjoying is the hospital building, with all of its equipment and management, the care and nursing, and the rules and regulations under which it. is operated, whereby it is
The hospital undertakes to use care in the selection and retention of its nurses, and holds itself out to the public as offering its comforts and its facilities, just as they are, and subject to all of its rules and regulations, with the implied assurance that it has exercised due care in the selection and retention of its servants, and in the management and conduct of its internal affairs, and those who enter its walls as patients, whether for pay or without pay, must be deemed to have assented to these conditions. The hospital has a right to' do this, and “whatever one has the right to do, another can have no right to complain of.” Cooley
The case of Mulliner v. Evangelisher, 144 Minn. 392, 175 N. W. 699, relied on by counsel for the plaintiff in error in his reply brief, adds nothing new, either by way of reason or authority, to the able opinion of the Alabama court in the Tucker Case. The only new cases added which are supposed to support the Glavin Case of Rhode Island are Gilbert v. Corporation of Trinity House, 17 Q. B. Div. (1886) 795, where the defendant was not a charitable institution and the'injury sued for was a “claim for damages in respect of injuries to the plaintiff’s vessel and cargo,” and University of Louisville v. Hammock, 127 Ky. 564, 106 S. W. 219, 14 L. R. A. (N. S.) 784, 128 Am. St. Rep. 355, in which it was held that'the defendant was an institution conducted for profit, and not a charitable institution, although it did a great deal of charitable work. These cases need no discussion.
The second, or “trust fund” theory is held, more or less, in its integrity, in Illinois, Kentucky, Maine, Maryland, Missouri, Nebraska, Pennsylvania, Tennessee and other States. Parks v. Northeastern University, 218 Ill. 381, 75 N. E. 991, 2 L. R. A. (N. S.) 556, 4 Ann. Cas. 103; Cook v. Norton Infirmary, 180 Ky. 331, 202 S. W. 874, L. R. A.
Much of what is said in some of the cases on the “trust fund” doctrine, could be more appropriately applied to the rule of public policy of which more will be said later. In
In Trevett v. Prison Association, 98 Va. 332, 36 S. E. 373, 50 L. R. A. 564, 81 Am. St. Rep. 727, an action for damages was allowed for fouling a stream of water to the detriment of a lower proprietor, although it was conceded that the defendant was a corporation of benevolent character doing a valuable work for the benefit of the State; and in Hospital v. Thompson, supra, recovery was allowed against the plaintiff in error in favor of an invitee injured in consequence of the unsafe condition of an elevator in its hospital. It was the necessity for the redress of wrongs of the nature of those mentioned that led many courts tq restrict the exemption extended to charitable institutions. That they should be exempt from liability to those who accept their benefits appears to be the opinion of nearly all the courts of this country to which the question has been propounded, though they differ as to the reasoning by which the conclusion has been reached.
The States and the municipalities maintain hospitals for the insane, for the deaf, dumb and blind, for the treatment and care of tuberculosis and many other diseases, for the treatment of the sick, and for surgical operations on those
One of the best-considered cases we have on the subject, and one that is often cited as a leading case, is Powers v. Mass. Homeopathic Hospital, 109 Fed. 294, 47 C. C. A. 122, 65 L. R. A. 372, decided by the United States Circuit Court of Appeals, First Circuit, in 1901. There, recovery
A distinction was sought to be made there, as here, between a pay patient and one who paid nothing. Upon that subject the.court said:
“The plaintiff was what is sometimes called a ‘paying patient,’ the rate of her payment being $14 a week. Upon this ground, her counsel has sought to distinguish her case from that of a patient in the hospital who pays nothing. In our opinion, the difference is immaterial. As has been said, the defendant was a charitable corporation; that is, a corporation organized exclusively for charity. That the ministrations of such a hospital should be confined exclusively to the indigent is not usual or desirable. Those of moderate means from necessity, and not a few rich people from choice, resort to great charitable hospitals for treatment, especially in surgical cases. Throughout the world this is the custom in these institutions, whether they are maintained by individual, religious, or municipal charity. Prom patients who are not indigent, a payment is commonly permitted or required. Commonly, and in the case at bar quite manifestly, this payment does not make full*604 pecuniary compensation for the services rendered. Those who make a considerable payment not infrequently receive in some respects a more expensive service than do those who make a small payment or none at all; but the payment required is usually calculated upon the patient’s ability to pay, rather than upon the whole cost of the treatment he receives. That this was the defendant’s rule, appears plainly from its printed form of application, which it required all applicants to fill out alike, whether they paid something or nothing. In this form the inquiry concerning payment was stated as follows: ‘How much per week applicant can pay’—thus indicating that the amount of the contribution was to be determined not by the value or cost of the service rendered, but by the ability of the patient to aid the charitable purposes of the hospital. In our opinion, a paying patient seeks and receives the services of a public charity.
“That such a hospital, in its treatment of a rich patient, shall be held to a greater degree of care than in its treatment of a pauper is not to be tolerated. Certain luxuries may be given the former which the latter does not get, and this for various reasons; but the degree of protection from unskilled and careless nurses must be the same in both cases.”
The learned judge who delivered the opinion of the court considered very carefully a number of the cases bearing on the subject, including English cases and the Glavin Case, from Rhode Island, and announced the following as the conclusion of the court:
“One who accepts the benefit either of a public or a private charity enters into a relation which exempts his benefactor from liability for the negligence of his servants in-administering the charity; at any rate, if the benefactor has used due ca,re in selecting those servants. To para*605 phrase the illustration put by the learned judge before ■whom .this case was tried, it would be intolerable that a good Samaritan, who takes to his home a wounded stranger for surgical care, should be held personally liable for the negligence of his servant in caring for that stranger. Were the heart and means of that Samaritan so large that he was able, not only to provide for one wounded man, but to establish a hospital for the care of a thousand, it would be no less intolerable that he should be held personally liable for the negligence of his servant in caring for any one of those thousand wounded men.
“We cannot perceive that the position of the defendant differs from the case supposed. The persons whose money has established this hospital are good Samaritans, perhaps giving less of personal devotion than did he, but, by combining their liberality, thus enabled to deal with suffering on a larger scale. If, in their dealings with their property appropriated to charity, they create a nuisance by themselves or their servants, if they dig pitfalls in their grounds and the like, there are strong reasons for holding them liable to outsiders, like any other individual or corporation. The purity of their aims may not justify their torts; but, if a suffering man avails himself of their charity, he takes the risks of malpractice, if their charitable agents have been carefully selected.
“We have thus indicated the grounds upon which rests, in our opinion, the defendant’s exemption from liability in this case. Though we feel constrained to differ from the reasoning followed by some other courts in reaching the same conclusion, we are not unmindful that the identity of conclusion reached, though by different roads, is a strong proof of its correctness. Doubtless, a weight of authority is more overwhelming if it is identical in reasoning as well as in result, but identity of result is in itself no mean argument for its justice.”
This holding has generally been followed by the courts before which the question has since come, unless controlled by - prior decisions in their own jurisdiction. In Bruce v. Central M. E. Church, supra, the Powers Case is referred to in the following language:
“In the latest of these cases (Powers v. Homeopathic Hospital), the opinion is exhaustive and elaborate, and discusses nearly all the authorities. It is held that the ground upon which liability is denied is that of assumed risk, the court saying: ‘One who accepts the benefit either of a public or of a private charity enters into a relation which exempts his benefactor from liability for the negligence of his servants in administering the charity; a,t any rate, if the benefactor has used due care in selecting these servants.’ The ground upon which liability is denied in nearly all the foregoing cases is that stated in the Downes Case, viz: that it would thwart the purpose of the trust; that is, it would oppose the will of the founder of the trust to pay from trust funds damages caused by an agent’s torts. It is entirely logical to say that this will must be recognized by beneficiaries of the trust. It may justly be said that the benefit of the trust is extended to them and accepted by them upon the implied condition that they shall recognize that will. By becoming beneficiaries, they agree to recognize it.”
After discussing the various theories of exemption, and the examination of the cases, English and American, the opinion continues:
*607 “I conclude from this reasoning that corporations administering a charitable trust, like all other corporations, are subject to the general laws of the land, and cannot, therefore, claim exemption from responsibility for the torts of their agents, unless that claim is based on a contract with the person injured by such a tort, and that Downes v. Harper Hospital and other similar cases are consistent with this rule. They rest upon the principle correctly stated in Powers v. Mass. Homeopathic Hospital, supra, viz: that the beneficiary of such charitable trust enters into a contract whereby he assumes the risk of such torts. It is not surprising that years should have elapsed before the correct legal principle governing these cases was announced in Powers v. Mass. Homeopathic Hospital. The discovery of correct legal principles, like the discovery of scientific and social truths, requires time and patient investigation.”
An examination of the opinion in the Powers Case will show that it is not placed on the ground that the patient contracted to assume the risk, but rather on the ground that he “enters into a relation which exempts his benefactor from liability.” He assumes the risk by virtue of entering the hospital and submitting to its treatment, not by virtue of any contract. If the exemption were dependent on contract, then there could be no exemption where the patient was an infant or unconscious, or for any other reason incapable of entering into a contract, and we would have one rule applicable to this class of persons and a different one applicable to others, although all were subjected to the same treatment. The true theory of the Powers Case is that the exemption is based on public policy, and it was so regarded in the Basabo Case, as is pointed out in Hospital v. Thompson, 116 Va. 114, 81 S. E. 13, 51 L. R. A. (N. S.) 1025. Furthermore, the statement of the Michigan court was obiter. The court was then dealing with the case
The doctrine of the Powers Case was fully approved in Hordern v. Salvation Army, 199 N. Y. 233, 92 N. E. 626, 32 L. R. A. (N. S.) 62, 139 Am. St. Rep. 889. After making the quotations above from the Powers and Bruce Cases, Cullen, C. J., speaking for the court, says: “We can add nothing to the force of this reasoning, but simply express our concurrence therein, as well as in the argument of Judge Powell” in the Powers Case.
In Farrigan v. Pevear, 193 Mass. 147, 78 N. E. 855, 7 L. R. A. (N. S.) 481, 118 Am. St. Rep. 484, 8 Ann. Cas. 1109, it was held that the duty of trustees exercising charitable functions does “not extend beyond the requirement of using reasonable care to select competent servants, and the demands of substantial justice are met if, as charitable trustees, they are not charged with the negligence of those so employed.” In Cunningham v. Sheltering Arms, 135 App. Div. 178 (1909), 119 N. Y. Supp. 1033, it was held that a charitable institution from which the directors and organizers receive no profit is not liable for injuries to a child placed therein by its mother who contributed to the expense of caring for him, caused by the negligence of one employed in furtherance of the charitable object, if due care was used in selecting the employee.
In Lindler v. Columbia Hospital, 98 S. C. 25, 81 S. E. 512, á patient in a hospital, while unconscious, was burned by hot-water bottles placed in the bed with her by negligence of a hospital nurse, and it was held in the majority opinion to be contrary to public policy to hold the hospital liable for the resulting injury when it had used due care in the selection of the nurse.
In Hoke v. Glenn, 167 N. C. 594, 83 S. E. 807, Ann. Cas. 1916-E 250, it was held that the extent of liability of chari
“The Supreme Court of Rhode Island, in a very able and learned opinion in Basabo v. Salvation Army, 35 R. I. 22, 85 Atl. 123, 42 L. R. A. (N. S.) 1144, holds that a charitable institution is liable for the negligence of its employees, but ¿he party injured in that case was not a patient, and the Supreme Court of Missouri, in an opinion equally strong and persuasive, in Adams v. University, 122 Mo. App. 675, 99 S. W. 453, absolves such an institution from all liability from negligence, whether the result of the acts of its employees or of failure to exercise due care in their selection.
“We prefer to adopt the middle course, which exempts from liability for the negligence of employees and requires the exercise of .ordinary care in selecting them, as more consonant with authority and with the purposes for which such institutions are established.
“The beneficiaries of charitable institutions are the poor, who have very little opportunity for selection, and it is the purpose of the founders to give to them skillful and humane treatment. If they are permitted to employ those who are 'incompetent and unskilled, funds bestowed for beneficence are diverted from their true purpose, and, under the form of a charity, they become a menace to those for whose benefit they are established.
“It is, therefore, better for those committed to their care and for the institutions, and necessary to effectuate the purpose of their creation, to require the exercise of ordinary care in selecting employees, and in supervising them.”
The question of liability of charitable institutions for the torts of its employees and the extent of that liability, if any, is at last a question of public policy, the determination of which the courts cannot escape in the absence of legislation on the subject. The determination of a number of courts of the highest respectability that there should be absolute immunity in all cases, and which came to be known as the “trust fund theory,” was nothing more than saying that the immunity was granted from reasons of public policy, that, on the whole, the public would be best served by the application of this theory. After a careful examination and consideration of the whole subject, and a review of the principal cases, other courts of at least equal ability came to the conclusion that the rule of public policy had been extended too far, and that it should be restricted in its application to beneficiaries of the charity who sustained injuries as the result of torts of employees who were not at the time discharging corporate duties of the organization, and in the latter view this court concurs.
We have not referred to certain rather old English cases that are supposed to bear upon the questions here under consideration because they have been fully considered in the American cases referred to, especially the Glavin, Hearns and Powers Cases.
Affirmed.
Dissenting Opinion
dissenting:
I find myself unable to concur in the conclusion of the majority opinion in this case.
It is true that while the law of torts was being developed the doctrine that a charitable corporation is not liable for injuries resulting from the negligent or tortious acts of ministerial servants in the course of their employment, where the corporation has exercised due care in their selection, became very generally established by the decisions in most jurisdictions. But it seems now very clear that this doctrine cannot be sustained on principle, except in those cases in which the actual tender of service—the actual undertaking—on the part of the corporation is óf a .qualified or limited character of service, and such qualified tender of service is accepted by the person complaining, as, for example, when a hospital does not undertake to do anything more for its patients than to use due care in the selection of its servants who may have the care of the patients.
The opinion of the district court in the case of Powers v. Massachusetts Homeopathic Hospital, 109 Fed. 294, 47 C. C. A. 122, 65 L. R. A. 372, chiefly relied on in the majority opinion, is a well reasoned opinion until it comes to the ground on which the decision is placed, namely, that if a suffering man avails himself of gratuitous services, as of a charity embodied in a charity hospital, he takes the risk of malpractice, if the agents of the hospital have been carefully selected. Such a conclusion, thus broadly stated, seems to be a palpable departure from principle. It rests upon the position that no duty exists on the part of the hospital to perform the service of proper ministerial care of and attention to its patients if that service is gratuitously undertaken by the hospital. The fallacy of that position was
As said in.the opinion of the court in Gilbert v. Corporation of Trinity House, 17 Q. B. Div. L. R. 795, at p. 799: “The law is plain that whoever undertakes the performance of, or is bound to perform, duties * * however they may arise, is liable for injuries caused by his negligent discharge of those duties. It matters not whether he makes money or profit by means of discharging the duties, or whether it be a corporation or an individual who has undertaken to discharge them. It is also immaterial whether the person is guilty of negligence by himself or by his servants. If he elects to perform the duties by his servants, if, in the nature of things he is obliged to perform the duties by employing servants, he is responsible for their acts in the same way that he is responsible for his own.”
If, indeed, the conduct of a patient in entrusting himself to the care of a charity hospital (or, as in the case in judgment, if the conduct of the father in entrusting his infant child to the care of the hospital), was not governed, i. e., induced by the unqualified undertaking on the part of the hospital of the duty of performing the service of proper ministerial care of and attention to the patient, for the reason that he actually or constructively knew at the time the relationship of patient was established that the hospital did not undertake to do more for its patients than to use due care in the selection of its servants who might have the care of the patients; in such case it would be true that the patient (or, in the case in judgment, the father for the infant patient) would be deemed to have impliedly agreed to assume the risk of the negligence of such servants as were selected with due care. And this, in truth, is the extent of the holding on this subject in the opinion of the Virginia court in Hospital v. Thompson, 116 Va. 101, 81 S. E. 13, 51 L. R. A. (N. S.) 1025.
But it is apparent that this situation exists only where the hospital does not hold itself out to the public as doing the business of undertaking the unqualified duty of performing the service aforesaid, and the latter fact is actually or constructively known to the patient, or the person acting for the patient, at the time the relationship of patient is established. In the absence of actual qualification in the tender of service by the hospital, as aforesaid, the qualified duty of service cannot be inferred from the meré fact that the service is gratuitous. The gratuity is immaterial. The material fact is what service was tendered— was actually undertaken—by the hospital, and was actually expected by or for the patient to be performed, which ex
In Tucker v. Mobile Infirmary Ass’n, 191 Ala. 572, 68 So. 4, L. R. A. 1915-D, 1167, the fact was that the injured patient paid full compensation for the services received. It does not appear whether the patient knew or did not know that the hospital was a charitable corporation. In reference to the principle of “implied assent” or the “assumption of risk” aforesaid, this is said in the opinion of the court in such case: “The principle, if held to be sound, must rest upon the fact that it is giving and receiving of charity that creates the exemption, and not th« nature of the institution administering it.” And the court holds that, in that case, the patient did not in fact accept charity, and, hence, that the principle mentioned had no application. That is to say, even if the qualified undertaking aforesaid would be inferred from the giving and receiving of the gratuitous service, that inference would not arise unless the fact that the service was to be gratuitous was known to the recipient of it at the time ef its acceptances and was so accepted.
In Stewart v. California Medical, etc., Ass’n, 178 Cal. 418, 176 Pac. 46, the injured patient paid the full price asked by the hospital for the services rendered, and the patient “had no knowledge that the hospital was, or claimed to be, a charitable institution.” In the opinion of the court, in reference to the principle of the “assumption of risk” aforesaid, which is referred to as the “rule” enunciated in Basabo v. Salvation Army, 35 R. I. 22, 85 Atl. 120, 42 L. R. A. (N. S.) 1144, this is said: “* * * if this rule is followed, the defendant could hardly claim to be thereby relieved of responsibility, for the reason that the plaintiffs had no knowledge whatever of the charitable character of the organization.”
It affirmatively appears from the record before us that the father, who established the relationship of patient of the infant, did not know at the time that the hospital was a charitable institution, or claimed to be. He undertook to pay the full price asked by the hospital for the service. The hospital undertook to render the service without any qualification. It thereby held itself out as doing the business of undertaking the unqualified service aforesaid—precisely the same business as that done by non-charitable hospitals, and in competition with the latter. That being the character of the business, surely the mere purpose with which it is done cannot change its character. In the case in judgment there was, therefore, as it seems to me, a tender and acceptance of an unqualified service, from which arose the duty on the part of the hospital of performing the service with reasonable care, as aforesaid.
This view of the law is in accord with the majority holding of the courts in railroad and mine hospital cases; is in harmony with general principles; is also, as I am deeply convinced, in accord with true policy; and will induce, in the ultimate result, the greater efficiency of such public charities as charity hospitals, as it will, upon the whole, greatly enlarge their beneficial service. Reasonably efficient service is, after all, the only service which can be regarded as true charity. And in the absence of mutual agreement for less, or of governmental institutions ren
The Virginia cases of Richmond v. Long, 17 Gratt. (58 Va.) 374, 94 Am. Dec. 461, and Maia v. Eastern State Hospital, 97 Va. 507, 34 S. E. 617, 47 L. R. A. 577, rests upon the principle that the corporations involved were acting as agencies of the State in governmental matters. It is recognized by all the authorities that such a case as that in judgment does not fall within that principle.
Saunders, J., also dissents.
