Powers v. Massachusetts Homoeopathic Hospital

Citation109 F. 294
Decision Date27 May 1901
Docket Number330.
PartiesPOWERS v. MASSACHUSETTS HOMOEOPATHIC HOSPITAL.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Thomas H. Russell and Arthur H. Russell, for plaintiff in error.

Charles P. Greenough (Julian Codman, on the brief), for defendant in error.

Before COLT, Circuit Judge, and BROWN and LOWELL, District Judges.

LOWELL District Judge.

This is a suit brought by a patient to recover damages for an injury alleged to have been sustained by the negligence of a nurse in the hospital. There was evidence that the plaintiff had a skin unusually sensitive, and that a rubber bag full of hot water was placed by the nurse against her side, and left there for some time. At the trial in the circuit court the learned judge ruled that the plaintiff could not recover, and directed a verdict for the defendant. 101 F. 896. To this ruling the plaintiff duly excepted.

That the defendant is a charitable corporation admits of no doubt. This was expressly recognized by the legislature of Massachusetts in chapter 358 of the Acts of 1890, and was decided in McDonald v. Massachusetts General Hospital, 120 Mass. 432, 21 Am.Rep. 529, the defendant there differing from the defendant here in no respect material to this case.

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. From 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 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 in the defendant hospital, as well as a nonpaying 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. Again, it would be absurd to make the defendant's liability for an accident, like that here alleged, depend upon the payment of that insignificant proportion of the cost of the service rendered which in some cases may properly be required from a poor man or woman. We are of opinion that this case stands as if the plaintiff had been admitted without any payment whatsoever.

We have to determine, then, if a patient admitted to a hospital maintained for charity can recover judgment against that hospital for injuries caused by the negligence of a nurse employed therein. There is a great weight of authority in favor of the defendant in the case put, but the courts have differed so widely in their reasoning that a somewhat extended examination is necessary, both of the cases decided and of the principles upon which they rest. The liability of the defendant for which the plaintiff contends is the liability of a master for the torts of his servant. 'The master is answerable for every such wrong of the servant or agent as is committed in the course of the service and for the master's benefit, though no express end or profit of the master be proved. ' Barwick v. Bank, L.R. 2 Exch. 259, 265. At one time it seems that the master's profit was deemed a necessary element. '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 an injury which a third person may sustain from it. ' Hall v. Smith, 2 Bing. 156, 160. As is said in Pol. Torts (4th Ed.) pp. 67, 88, this rule belongs wholly to the modern law, and no reason for it, at any rate no satisfying one, is commonly given in our books. It is in some sense an exceptional rule to begin with, and is itself subject to several exceptions. With some of these exceptions we have to concern ourselves.

Many cases hold that public or municipal corporations are not liable for some of the torts of their servants, though committed in the course of their service. Thus, in Benton v. Boston City Hospital, 140 Mass. 13, 1 N.E. 836, 54 Am.Rep. 436, it was said: 'The trustees are a body created for the performance of a duty which, under the authority of the statute, the city of Boston has assumed for the benefit of the public, and from the performance of which no profit or advantage is derived, either by the trustees or by the city. ' In this case the trustees were held not liable for injury to a patient caused by the negligence of the superintendent. To the same general effect are City of Richmond v. Long's Adm'rs, 17 Grant. 375, 94 Am.Dec. 461; Maia's Adm'r v. Eastern State Hospital, 97 Va. 507, 34 S.E. 617, 47 L.R.A. 577; Sherbourne v. Yuba Co., 21 Cal. 113, 81 Am.Dec. 151; Murtaugh v. City of St. Louis, 44 Mo. 479. The cases just cited all resemble the case at bar, in that the plaintiff there, as here, sought to recover for negligence or malpractice in a hospital not maintained for profit; but the principle upon which they rest has no essential connection with hospitals or malpractice, but is applicable equally to many other kinds of damage. Thus the leading case in Massachusetts upon the subject is Hill v. City of Boston, 122 Mass. 344, 23 Am.Rep. 332, where the action was for damage caused by the defective construction of a school house, and the case most commonly arising is probably that concerned with damage caused by a defective highway. In different jurisdictions the liability of municipal corporations for the negligence of their employes is variously limited. Shear. & R. Neg. Secs. 253, 255, 289. See City of Detroit v. Osborne, 135 U.S. 492, 10 Sup.Ct. 1012, 34 L.Ed. 260. The liability is determined generally by the laws of the states establishing and regulating the municipal corporations in question. City of Detroit v. Osborne, supra. See Workman v. City of New York, 179 U.S. 552, 21 Sup.Ct. 212, 45 L.Ed. 314. The principle upon which the municipality is excused from liability for certain injuries done by its servants is this: The municipality is acting as an agency of the sovereign, and thus acting it enjoys some part of the sovereign's immunity from suit. The cases above referred to, however much they resemble the case at bar in some of their facts, yet have no bearing upon its decision. The defendant here is in no sense an agency of the sovereign. It is a public charity, but is not a political or municipal corporation. Yet, as some of the cases cited have been referred to in discussing the liability of public charities under private management like this defendant, it has seemed best to refer briefly to the cases in order to distinguish them. Certain English cases have been urged even more specifically. In Duncan v. Findlater, 6 Clark & F. 894, it was held that the trustees appointed under a public road act were not responsible for damage caused by the negligence of those employed in making or repairing the road. The decision might have been rested upon the principle just referred to regarding municipal and political bodies. In delivering his opinion, however, Lord Cottenham said:

'The law is stated to be that the road fund is liable for the misconduct of any person employed by the road trustees. This direction assumes that the act done was an act not within the provisions of the statute; that it was not done in consequence of those provisions; for otherwise the direction would be in that respect improper, since whatever is done under the authority of the statute gives no right of action. If that was not so, the result would be that all the damages, though not arising from any act done by the immediate authority of the road trustees, would be liable to be compensated out of the trust fund,-- a proposition which certainly cannot be supported by the law which regulates the liability of master and servant.'

By this language, and other which need not be quoted, Lord Cottenham was supposed to have held that the action could not be maintained against the road trustees in their corporate capacity, for the reason that the fund in their hands was impressed with a trust incompatible with its distribution among persons damaged by the negligence of their servants. See Feoffees of Heriot's Hospital v....

To continue reading

Request your trial
77 cases
  • Sessions v. Thomas D. Dee Memorial Hospital Ass'n
    • United States
    • Utah Supreme Court
    • April 25, 1938
    ... ... Utah 463] or others for which compensation is charged and ... received. Other powers and purposes are indicated to be the ... power to acquire, own, hold, operate, and invest in and ... Eye & Ear Infirmary , 107 Me. 408, 78 A. 898, 33 L. R ... A., N. S., 141; Massachusetts: Roosen v. Peter ... Bent Brigham Hospital , 235 Mass. 66, 126 N.E. 392, 14 A ... L. R. 563; ... ...
  • Wilcox v. Idaho Falls Latter Day Saints Hospital
    • United States
    • Idaho Supreme Court
    • June 23, 1938
    ... ... University , 218 Ill. 381, 75 N.E. 991, 4 Ann. Cas. 103, ... 2 L. R. A., N. S., 556; Powers v. Massachusetts ... Homoeopathic Hospital , 109 F. 294; Hearns v ... [59 Idaho 359] ... ...
  • President and Dir. of Georgetown College v. Hughes
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • June 30, 1942
    ...Mobile Infirmary Ass'n, 1915, 191 Ala. 572, 68 So. 4, L.R.A.1915D, 1167. See note 2 supra. 45 E. g., Powers v. Massachusetts Homoeopathic Hospital, 1 Cir., 1901, 109 F. 294, 65 L.R.A. 372 (implied waiver); Southern Methodist Hospital and Sanatorium v. Wilson, 1935, 45 Ariz. 507, 46 P.2d 118......
  • Parker v. Port Huron Hosp.
    • United States
    • Michigan Supreme Court
    • September 15, 1960
    ...246, 110 N.W. 951, 10 L.R.A.,N.S., 74. The Court there referred, apparently with approval, to Powers v. Massachusetts Homoeopathic Hospital, Cir., 109 F. 294, 47 C.C.A. 122, 65 L.R.A. 372, in which it was held that the defendant hospital was not liable to respond in damages for the acts of ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT