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erty attached by him on process against mesne process and for refusal to serve the plaintiff. The case was tried while the mesne process, as the debt cannot be transattachment suit was still pending. The ferred to the officer by the judgment, the question for decision was whether the plain. rule of damages claimed by defendant tiff, as general owner of the property, could has been adopted.” maintain an action for the officer's neglect The claim of the defendant was the right in the care thereof while the attachment to show in mitigation that the debtor was was still in force. The exception was to at the time of the neglect sued for the refusal of the trial court to direct a wholly unable to respond. The rather verdict for the defendant on the ground harsh rule laid down in Hall v. Brooks, that the plaintiff did not have any cause and followed in several other cases, is apof action at the time the suit was com- parently restricted by the holding in Kidmenced. It was held that an injury to the der v. Barker, 18 Vt. 454, that in case of property happening through the officer's neglect to return an execution the officer negligence in caring for it was an injury was liable for nominal damages, “and for to the debtor in any event, as the loss so much more as have been suffered;" al. would finally fall on him, whether the though in the latter case the court reproperty was restored to him or sold to marked that they did not see that the case pay his debts.

Judge Aldis, who wrote was fairly comparable to Hall v. Brooks. the opinion, uses the language quoted by The result is that the replication is not the plaintiff by way of argument. It is sufficient to avoid the plea of the statute not necessary to consider whether it is of limitations, and defendant's demurrer mere dictum or whether it correctly states was properly sustained. the rule as to the creditor's right to sue Judgment affirmed, and cause remanded. for damage due to neglect in the case of attached property; for, treating it as decision, it amounts to no more than saying that in the case of such official neg.

ALABAMA SUPREME COURT, ligence the creditor's injury is remote and consequential in the technical sense of the

FANNIE TUCKER, Appt., term. Munger v. Fletcher, 2 Vt. 524; West

MOBILE INFIRMARY ASSOCIATION. River Bank v. Gorham, 38 Vt. 649; and

(- Ala.

68 So. 4.) Wolcott v. Gray, Brayton (Vt.) 91, shed no light on the question. The effect of

Hospital charity liability for neg. these decisions is that the defendant may

ligence. defeat the suit by showing that plaintiff A paying patient in a hospital conducted has suffered no injury by the defendant's without stock or profit, in which indigent wrongful act. It is unnecessary to decide patients are treated without cost, and the whether the burden of showing injury rests fees exacted from patients who can pay upon the plaintiff, or whether want of in

are used in promoting the work, may recover

damages for injury done him through the jury is a matter of defense. In the case at bar the facts alleged show present in negligence of an attending nurse. jury, and not a state of facts harmless in

(Mayfield, J., dissents.) themselves, from which, in connection with subsequent circumstances, injury follows.

(February 11, 1915.) The decisions upon this question are conflicting. It is held in some jurisdictions A

PPEAL by plaintiff from a judgment of that the plaintiff would make out a prima

the Circuit Court for Mobile County in facie case by proving the default relied up. defendant's favor in an action brought to on and the amount of his claim (35 Cyc. recover damages for personal injuries al1640, and cases cited), and that the de

Note. fendant may show certain facts in miti- stitutions for personal injuries, including

As to liability of charitable ingation of damages (Second Nat. Bank v. hospitals, see notes to Farrigan v. Pevear, Gilbert, 174 Ill. 485, 66 Am. St. Rep. 306, 7 L.R.A. (N.S.) 481; Bruce v. Central M. E. 51 N. E. 584; notes in 30 Am. Dec. 487, Church, 10 L.R.A. (N.S.) 74; Thornton v. and 72 Am. St. Rep. 160). In Hall v. Franklin Square House, 22 L.R.A. (N.S.) Brooks, 8 Vt. 485, 30 Am. Dec. 485, this 486; Hordern v. Salvation Army, 32 L.R.A. court, holding that, where an officer had (N.S.) 62; Basabo v. Salvation Army, 42 final process put into his hands, which he L.R.A. (N.S.) 1144; and Schloendorff v.' Sorefused or neglected to receive (serve), he ciety of New York Hospital, 52 L.R.A.

(N.S.) 505. thereby made the debt his own, and was li

As to liability of proprietor of private able in damages to the full amount of the hospital, see Index to L.R.A. Notes under debt, said: "In actions for escape on title "Hospitals."

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leged to have been sustained while a patient, fendant exercised reasonable care with re in the defendant hospital. Reversed. gard to the competency of said nurse. The facts are stated in the opinion.

Messrs. Gregory L, Smith, H. T. Smith, Counts 1 and pleas 2 and 3 mentioned in and William G. Caffey, for appellant: the opinion are as follows:

A charitable corporation is liable in damCount 1. Plaintiff claims of defendant ages for breach of an express contract re

as damages for that heretofore, to sulting in personal injury to a patient.

. defendant was in the business Ward v. St. Vincent's Hospital, 39 App. of conducting an infirmary for the treatment Div. 624, 57 N. Y. Supp. 784, 6 Am. Neg. of patients requiring operations and other Rep. 164; Armstrong v. Wesley Hospital, medical treatment, and, for a reasonable 170 ml. App. 81; Donaldson v. General Pubcompensation, defendant undertook and | lic Hospital, 30 N. B. 279; Hewett v. Wompromised to properly nurse and care for an's Hospital Aid Asso. 73 N. H. 556, 7 plaintiff, preparatory to and during a L.R.A. (N.S.) 496, 64 Atl. 190, 20 Am. Neg. surgical operation which she then re- Rep. 621; Basa bo v. Salvation Army, 35 R. quired, and thereafter unail she had suf- I. 22, 42 L.R.A. (N.S.) 1144, 85 Atl. 120; ficiently recovered to leave the institu- 24 Am. & Eng. Enc. Law, 370. tion, and that while plaintiff was A charitable corporation is liable in damin said infirmary for such treatment, ages for injuries to employees or third perand after she had been operated on for some sons caused by the negligence of its servtrouble of the internal organs, plaintiff was ants, and the assets of such corporation may badly scalded with boiling water both in- be applied to payment of such damages. ternally and externally, by reason of the Basabo v. Salvation Army, 35 R. I. 22, negligence of one of the nurses employed 42 L.R.A.(N.S.) 1144, 85 Atl. 120; McInerby defendant in the care of plaintiff, and ny v. St. Luke's Hospital Asso. 122 Minn. while said nurse was engaged in and about 10, 46 L.R.A. (N.S.) 548, 141 N. W. 837; the duties of her employment.

Thomas v. German General Benev. Soc. 168 The second count was similar to the first, / (al. 183, 141 Pac. 1186; Hewett v. Woman's but amended "by reason of the said defend- Hospital Aid Asso. 73 N. H. 556, 7 L.R.A. ant's negligently intrusting the care of (N.S.) 496, 64 Atl. 190, 20 Am. Neg. Rep. plaintiff while she was under an anesthetic 621; Bruce v. Central M. E. Church, 147 to an incompetent nurse.”

Mich. 230, 10 L.R.A. (N.S.) 74, 110 N. W. The following are the pleas in the case: 951, 11 Ann. (as. 150; Kellogg v. Church (2) To each count of the complaint de Charity Foundation, 128 App. Div. 214, fendant says that, at the time when plain- 112 N. Y. Supp. 566, 203 N. Y. 191, 38 L.R.A. tiff claims to have been injured in the man- (N.S.) 481, 96 N. E. 406, Ann, Cas. 1913A, ner alleged in her complaint, defendant was 883, 3 N. C. C. A. 444; Hordern v. Salvation an institution operated exclusively for char- Army, 199 N. Y. 233, 32 L.R.A. (N.S.) 62, ity, and that due care was exercised by de 139 Am. St. Rep. 889, 92 N. E. 626; Gartfendant in the selection and retention of land v. New York Zoological Soc. 61 Misc. the service of the nurse referred to in the 643, 113 N. Y. Supp. 1087, 135 App. Div. complaint. (3) At the time when plain. 163, 120 N. Y. Supp. 24; Gallon v. House tiff alleges that she suffered the injuries of Good Shepherd, 158 Mieh. 361, 24 L.R.A. described in her complaint, defendant was (N.S.) 286, 133 Am. St. Rep. 387, 122 N. W. engaged in the business of conducting a 631; Holder v. Massachusetts Horticultural charitable hospital; that the ministrations Soc. 211 Mass. 370, 97 N. E. 630; Armenof said hospital were not confined exclusive- darez v. Hotel Dieu, Tex. Civ. App. ly to the indigent, but pay was required and 145 S. W. 1030. received from such patients as were able to A charitable corporation is liable in a pay for the services, attentions, and accom- suit on an express contract between it and modations furnished them; that defendant the patient for careful treatment, where a corporation has issued no stock and has no breach of that contract is shown by showing stockholders; that it is not operated for improper treatment. profit, and never has been; that as moneys

Ward v. St. Vincent's Hospital, 39 App. earned by defendant they are and Div. 624, 57 N. Y. Supp. 784, 6 Am. Veg. will be applied exclusively to the opera- Rep. 164; Armstrong v. Wesley Hospital, tions of its hospital, payment of its 170 Ill. App. 81; Donaldson v. General Pubdebts, and the extension of its work as a lic Hospital, 30 N. B. 279; Hewett v. Womcharity institution; that defendant exercised an's Hospital Aid Asso. 73 N. H. 556, 7 due care in the selection and retention of L.R.A. (N.S.) 496, 64 Atl. 190, 20 Am. Neg. the nurse referred to in said complaint, Rep. 621; Basabo v. Salvation Army, 35 R. and, if said nurse was incompetent, such I. 22, 42 L.R.A. (N.S.) 1144, 85 Atl. 120; fact was not known to defendant, and de- 24 Am. & Eng. Enc. Law, 370. fendant had no notice thereof, although de- There is no universal rule exempting char



itable corporations or their assets from lia- engaged in the duties of said employment. bility in damages.

There were two counts in the complaint. Basabo v. Salvation Army, 35 R. I. 22, 42 The reporter will set out counts 1 and 2 and L.R.A. (N.S.) 1144, 85 Atl. 120; Glavin v. pleas 2 and 3 in his report of the case. DeRhode Island Hospital, 12 R. I. 411, 34 Am. murrers to these pleas were overruled and Rep. 675; Hewett v. Woman's Hospital Aid replications were filed. Plaintiff took nonAsso. 73 N. H. 556, 7 L.R.A. (N.S.) 496, 64 suit on account of adverse rulings on the Atl. 190, 20 Am. Neg. Rep. 621; McInerny pleadings and brings the case here for rev. St. Luke's Hospital Asso. 122 Minn. 10, view. 46 L.R.A. (N.S.) 548, 141 N. W. 837; Kel- We think the pleas to the two counts orlogg v. Church Charity Foundation, 128 dered to be set out will be sufficient to App. Div. 214, 112 N. Y. Supp. 566; Bruce present the question raised by the record. v. Central M. E. Church, 147 Mich. 230, 10 Each of the counts alleged that for a reaL.R.A. (N.S.) 74, 110 N. W. 951, 11 Ann. sonable compensation the defendant underCas. 150; Hordern v. Salvation Army, 199 took and promised to properly nurse and N. Y. 233, 32 L.R.A. ( N.S.) 62, 139 Am. St. care for plaintiff preparatory to and during Rep. 889, 92 N. E. 626; Armendarez v. Ho- a surgical operation and thereafter until she tel Dieu, Tex. Civ. App. -, 145 S. W. had sufficiently recovered to leave the insti1030.

tution. A charitable corporation is liable for its In the first count the injuries are alleged corporate negligence.

to have been the result of negligence of one Kellogg v. Church Charity Foundation, of the nurses employed by the defendant in 128 App. Div. 214, 112 N. Y. Supp. 566; care of the plaintiff, and in the second count McInerny v. St. Luke's Hospital Asso. 122 a result of defendant's negligently inMinn. 10, 46 L.R.A. (N.S.) 548, 141 N. W. trusting the care of the plaintiff, while un837; Hewett v. Woman's Hospital Aid Asso. der an anesthetic, to an incompetent nurse. 73 N. H. 556, 7 L.R.A. (N.S.) 496, 64 Atl. It is insisted by counsel for appellant in 190, 20 Am. Neg. Rep. 621.

brief that the complaint is one for damages Messrs. C. J. Torrey and Webb & Mc- for the breach of a contract, citing Western Alpine, for appellee:

U. Teleg. Co. v. Littleton, 169 Ala. 99, 53 Charitable institutions are not liable So. 97; McDaniel v. Johnston, 110 Ala. 526, for the negligent acts of their servants, if 19 So. 35; Mott v. Jackson, 172 Ala. 448, 55 the institutions have exercised due care in So. 528. In the case first eited, quoting the selection and retention of the servants. from case of Wilkinson v. Moseley, 18 Ala. Downes v. Harper IIospital, 101 Mich. 555, 288, it was said: "If the cause of action, 25 L.R.A. 602, 45 Am. St. Rep. 427, 60 N. W. as stated in the declaration, arises from a 42; Duncan v. Nebraska Sanitarium & breach of promise, the action is ex contracBenev. Asso. 92 Neb. 162, 41 L.R.A. (N.S.) tu; but if the cause of action arises from a 973, 137 N. W. 1120, Ann. Cas. 1913E, 1127; breach of duty growing out of the contract, Thornton v. Franklin Square House, 200 it is in form ex delicto and case.” Mass. 465, 22 L.R.A.(N.S.) 486, 86 N. E. The opinion in Western U. Teleg. Co. v. 909; McDonald v. Massachusetts General Littleton, 169 Ala. 99, 53 So. 97, also makes Hospital, 120 Mass. 432, 21 Am. Rep. 529; note of the fact that it has frequently been Firrigan v. Pevear, 193 Mass. 147, 7 said that it is often difficult to determine L R.A. (N.S.) 481, 118 Am. St. Rep. 484, whether a count is on the contract or in 78 N. E. 855, 8 Ann. Cas. 1109; Hearns tort, and regret is expressed that such is the v. Waterbury Hospital, 66 Conn. 98, 31 L.R.A. 224, 33 Atl. 595; Powers v. Mas- In each count of the complaint as above sachusetts Homeopathic Hospital, 65 L.R.A. shown, the expressed promise and undertak372, note; Parks v. Northwestern Universi- ing for a reasonable compensation to propty, 218 Ill. 381, 2 L.R.A. (N.S.) 556, 75 N. erly nurse and care for the plaintiff is alE. 991, 4 Ann. Cas. 103; 7 Labatt, Mast. & leged, and it is insisted therefore that the S. § 2507, p. 7683.

cause of action is shown to arise from the

breach of this promise, and therefore that Gardner, J., delivered the opinion of the the action is ex contractu. However, this court:

we need not determine, as we do not deem it Plaintiff (appellant here) brought this material, for the reasons which will heresuit against the Mobile Infirmary Associa- after be stated. tion for the recovery of damages alleged to It is next insisted that, the action being have been sustained by being scalded with ex contractu, the cases of Ward v. St. Vinboilin water both internally and externally cent's Hospital, 39 App. Div. 624, 57 N. Y. as a result of the negligence of one of Supp. 784, 6 Am. Neg. Rep. 164, and Armthe nurses employed by defendant in care strong v. Wesley Hospital, 170 111. App. 81, of the plaintiff, and while such nurse was are authorities to support the cause of ac




tion as for the breach of an expressed con- , rule of stare decisis, and in accordance with tract resulting in injury to the patient. It what we deem to be the law. must be conceded, if the counts are so con- Among the early cases in this country strued, that such seems to be the effect of deciding such charitable institution exempt these decisions.

from liability to the patient is that of MeFrom the view we take of the case, it Donald v. Massachusetts General Hospital, is also unnecessary that this be determined, 120 Mass. 432, 21 Am. Rep. 529; and it has as we are in accord with the following quo- been frequently cited and approved in subsetation from the case of Duncan v. St. Luke's quent cases in that jurisdiction. Farrigan Hospital, 113 App. Div. 68, 98 N. Y. Supp. v. Pevear, 193 Mass. 147, 7 L.R.A.(N.S.) 867; found recited in Duncan v. Nebraska 481, 118 Am. St. Rep. 484, 78 N. E. 855, 8 Sanitarium & Benev. Asso. 92 Neb. 162, 41 Ann. Cas. 1109; Thornton Franklin L.R.A. (N.S.) 973, 137 N. W. 1120, Ann. Cas. Square Ilouse, 200 Mass. 465, 22 L.R.A. 1913E, 1127: "Nor can we see any reason (N.S.) 486, 86 N. E. 909. why there should be any difference in the The above case of McDonald v. Massachurule where the tortious act which caused setts General Hospital has been also fredeath is alleged to be a breach of an ex- quently cited and followed in other jurisdicpressed contract than where it is alleged tions, and we therefore think it important, to be a breach of an implied contract, or at the outset, to call attention to what seems where no contractual relation at all existed.” to be the only authority relied upon in that

We are therefore of the opinion that, in opinion upon the question here under conso far as this case is concerned, the rule of sideration,--that of the English court in liability would be the same whether an ex- the case of Holliday v. St. Leonard, 11 C. B. pressed contract were alleged or merely one N. S. 192, 30 L. J. C. P. N. S. 361, 8 Jur. implied by law.

N. S. 79, 4 L. T. N. S. 406, 9 Week. Rep. That the complaint upon its face, in ordi- 694, decided by the court of common bench nary cases, shows a right of action in the in 1861. plaintiff against the defendant, is, as It is clear, however, that in the subseview the pleadings, practically conceded. quent case of Mersey Docks v. Gibbs, L. R. The defendant, as shown more fully by plea 1 H. L. 93, 11 H. L. Cas. 686, 35 L. J. Exch. 3, seeks exemption from liability because of N. S. 225, 12 Jur. N. S. 571, 14 L. T. N. S. the fact that it was engaged in the business 677, 14 Week. Rep. 872, the principle of of conducting a charitable hospital, that Holliday v. St. Leonard, supra, was not folthe corporation issued no stock, has no lowed, but that in effect that authority was stockholders, is not operated for profit, and overruled. The principal opinion in the case that, while its ministrations were not con- of Mersey Docks v. Gibbs was written by fined exclusively to the indigent, and pay Mr. Justice Blackburn, and he was also the was required and received from such pa- writer of the opinion in the case of Foretients as were able to pay for the service, man v. Canterbury, L. R. 6 Q. B. 214, whereyet the moneys earned by the corporation in, speaking of the said case of Holliday v. were applied exclusively in the operation of St. Leonard, it is said in the opinion as its hospital, payment of its debts, and the follows: “Upon looking at the facts of that extension of its work as a charitable insti- case it would appear that it would have been tution; and it is then averred that the de- an authority directly in point for the presfendant exercised due care in the selection ent defendants if the case were still an auand retention of the nurse referred to in thority at all; but, upon looking at the reathe complaint. In short, the defense is that, sons of that decision, we consider it to be having exercised due care in the selection overruled by the decision of the House of and retention of the nurse, the defendant is Lords in the case of Mersey Docks v. Gibbs, exempt from all liability to the plaintiff, be supra.

It is not overruled by name, but cause of the fact that it is an institution or the principle upon which that case was deganized, not for profit, but for charitable cided in the House of Lords does overrule purposes.

it." The question presented is one of much in- It is therefore made clearly to appear that terest, and a subject upon which much ap- the English authority relied upon in the pears to have been written in recent years. case of McDonald v. Massachusetts General It must be conceded at the outset that the Hospital, supra, had been in effect, and, so great weight of authority in this country, far as the principle announced therein is certainly from a numerical standpoint, lies concerned, overruled in the case of Mersey with the defendant in this case. It appears Docks v. Gibbs, supra, and this is expressly however, to be conceded by counsel, and we so stated in the case of Foreman v. Canterhave found nothing to the contrary, that the bury, supra, by Justice Blackburn, who was question is an open one in this state, leaving also the author of the opinion in the Mersey us free to act without any constraint of the 'Docks Case. This is significant to be here




noted because of the fact that the McDonald, ald Case was among the earliest in this Case seems to be among the early cases country dealing with this question. The treating the question in this country. It opinion states that the first case to which seems to have been largely followed by other the attention of the court had been called jurisdictions. The McDonald Case was de- was that of Richmond v. Long, 17 Gratt. cided in 1876, and the decision in the Mer. 375, 94 Am. Dec. 461, decided in Virginia ; sey Docks Case antedates the McDonald but it is further shown that liabilit Case some several years, as well also, it ap- denied in that case, on the ground that the pears, does the Foreman Case, supra. This management of the hospital was under govdoes not seem to have been taken note of or ernmental powers, under the laws of Vircalled to the attention of the Massachusetts ! ginia, and that in fact the government was court in the McDonald Case.

the principal or master. Such a case As said by the supreme court of Rhode Is- the Virginia case is of the same character land in the case of Glavin v. Rhode Island as that decided by our own court in the Hospital, 12 R. I. 411, 34 Am. Rep. 675: case of White v. Alabama Insane Hospital, "The authority of McDonald v. Massachu. 138 Ala. 479, 35 So. 454, where the corsetts General Hospital, in so far as it rests poration was held to be only an arm upon Holliday v. St. Leonard, is seriously agency of the state; and cases of this charimpaired by these cases."

acter, therefore, are without application to That the McDonald Case was rested upon the question we have at hand. Some of the English authority which had been over- the decisions make note of the point that ruled is noted in a very recent English case many of the cases could have been decided (Hillyer v. St. Bartholomew's Hospital upon this doctrine. It is therefore clear [1909] 2 K. B. 820), wherein Kennedy, L. that the McDonald Case is among the J., uses this language: "With the Ameri- earliest, if not the first, in this country can and New Zealand cases which were cited which is directly in point. to us by the learned counsel on both sides While it must be conceded that the great I do not think it necessary to deal. They weight of authority in this country is in are not in agreement; in one of them, Mc- avor of exemption to an institution engaged Donald v. Massachusetts General Hospital, in charitable work from liability for the relied upon by the defendants, the judgment torts of its servants or agents, yet there is appears to have been influenced by an Eng some contrariety of opinion as to the prinlish decision of Holliday v. St. Leonard, ciples upon which this result is rested, and supra, which has been overruled by the varied reasons are given not at all consistHouse of Lords in Mersey Docks v. Gibbs.ent one with the other. For the purposes See per Blackburn, J., in Foreman v. Can. of this case these authorities may be terbury.”

grouped into three classes. One line of deThe importance of directing attention to cisions would rest exemption from liability this situation at this time is further em- upon what might be termed "the trust fund phasized when we note the fact that the theory," that is, tha all funds of such inMcDonald Case has been considered a lead-stitutions are held in trust for the paring case, if indeed not the pioneer case, ticular charitable purpose, and that it is a upon this particular question in this coun. breach of trust to apply them to any other try, and been followed, cited, and quoted purpose, and that the payment of damages from in many subsequent decisions. It is due to the negligence of the servants of the said to be a leading case in the note to 6 | institution is not a purpose contemplated Cyc. 975; and in Taylor v. Protestant Hos- by the trust, and that therefore their funds pital Asso. 85 Ohio St. 90, 39 L.R.A. (N.S.) cannot be diverted to the payment thereof. 427, 96 N. E. 1089, 1 N. C. C. A. 438, quot. Other authorities rest their conclusion, it ing from another, it is said: “The doctrine seems, upon the theory that the rule of of the Massachusetts cases may be said to respondeat superior does not apply to such be the law followed by other states." institutions, for the reason that the serve

The McDonald Case is cited and com. ants in the exercise of their duties are not mented upon in Glavin v. Rhode Island Hos- engaged in the work which is for the benefit pital, supra, and in the concurring opinion or profit of the master, and that such is of Justice Potter we find the following re-essential to call for the application of this mark: “The arguments of counsel have rule. Still other authorities base their conbeen very able, but their researches have clusion upon what might be termed an “imonly discovered one case nearly in point, Mc- plied assent theory;" that is, that one who Donald v. Massachusetts General Hospital, accepts the benefit of charity must be taken supra."

impliedly to have assumed the risk of neg. It is further indicated in the opinion of ligent injuries caused to him by servants Hearns v. Waterbury Hospital, 66 Conn. 98, who have been properly employed or re31 L.R.A, 224, 33 Atl. 595, that the McDon- 'tained in his service, or to have waived

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