130 F.2d 810 (D.C. Cir. 1942), 7761, President and Directors of Georgetown College v. Hughes

Docket Nº:7761.
Citation:130 F.2d 810
Party Name:PRESIDENT AND DIRECTORS OF GEORGETOWN COLLEGE v. HUGHES.
Case Date:June 30, 1942
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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130 F.2d 810 (D.C. Cir. 1942)

PRESIDENT AND DIRECTORS OF GEORGETOWN COLLEGE

v.

HUGHES.

No. 7761.

United States Court of Appeals, District of Columbia.

June 30, 1942

Mr. Henry I. Quinn, with whom Mr. Richard W. Galiher, both of Washington, D.C., was on the brief, for appellant.

Mr. Emmett Leo Sheehan, of Washington, D.C., for appellee.

Before GRONER, Chief Justice, STEPHENS, MILLER, VINSON, EDGERTON, and RUTLEDGE, Associate Justices.

RUTLEDGE, Associate Justice.

The appeal brings here for the first time the question whether a charitable corporation is liable for injury negligently caused by an employee acting in the course of duty. Issues of negligence and contributory negligence also are raised.

The plaintiff had judgment on a verdict, with special interrogatories. Defendant's motions for a directed verdict and to set aside the court's opinion, filed at the time of judgment, is reported in 1940, 33 F.Supp. 867. We affirm the judgment.

The court is in agreement concerning the issues of negligence and contributory negligence. The only question is whether there was substantial evidence to sustain the jury's findings. We think there was. Concerning the other and principal question, all agree that the judgment should be affirmed. But we differ as to the grounds upon which the decision should be placed. The trial court found that plaintiff was a stranger to the charity. Reserving the question of liability to a beneficiary, it held plaintiff entitled to recover. Chief Justice Groner, Justice Stephens and Justice Vinson concur in the result of the affirmance on that basis. They think that by the great weight of authority in the United States charitable corporations are responsible for the negligence of their servants in suits by strangers; and hence that the trial judge correctly ruled that plaintiff (appellee) in the instant case was a stranger and therefore properly submitted the case to the jury on the questions of negligence and contributory negligence. They likewise think that the case on its facts presents no question as to the liability of charitable corporations for the negligence of their servants in suits by persons other than strangers and that no ruling should be made on that subject and therefore do not express themselves thereon. Justice Miller, Justice Edgerton and myself think the judgment should be affirmed on the broader grounds stated in this opinion.

I. Negligence and Contributory Negligence

On both issues the evidence was sufficient to go to the jury. Hence its findings for the plaintiff must be sustained.

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Defendant conducts Georgetown Hospital. Plaintiff, a special nurse on duty, was struck in the back by a door hinged to swing both in and out and located between a ward and the corridor along which she was passing. The door was pushed open suddenly and violently by a student nurse coming out from the ward. The corridor ran east and west. It was a little more than six feet wide. The ward and the door were on the north. Nurses were instructed to keep to the right of the center line and to be cautious about the door. Plaintiff was walking westwardly, to the right of the door, when it was pushed open and struck her. She was thrown violently to the floor, and incurred the injuries which have permanently disabled her. There is no issue concerning the character of the injury or the amount of the damages.

The evidence to show negligence is, in part, that the student nurse and several others, in company with the head instructor, Miss Sandmaier, entered the ward just prior to the injury for an hour's work. Miss Sandmaier found some needed article was lacking and sent the student nurse for it. The latter turned and went hurriedly, not running, but walking very fast. Her own and other testimony describes her as rushing, not stopping at the door 'because it was a swinging door,' not looking through the wire mesh at the bottom to see if anyone were outside, not slowing or slackening her speed as she approached the door, pushing it, meeting an obstacle which fell, pushing it open again after it had swung back toward her, and finding the plaintiff lying on the floor. The testimony also showed that the morning was unusually busy, the article was needed quickly-- 'the work had to be done in an hour'-- and the student nurse habitually rushed and hurried about her work. More need not be related.

At times things happen fast, and have to, in hospitals. When they do accidents may occur which the law must classify as negligence. The student nurse made things move. Ordinarily this would be commendable. Unfortunately that cannot relieve her act here of a negligent quality. It was careless, because thoughtless and hasty. We cannot say that the jury could not find it was unreasonably dangerous to others.

The claim of contributory negligence is that plaintiff walked too closely to the door and failed to take due care regarding it, with full knowledge of the danger. The evidence, however, was not so one-sided as to require the case to be kept from the jury. The corridor was not a one-way street. It was only a few inches over six feet wide. Nurses were instructed to walk to the right of the center line. Plaintiff followed the instructions. She was told also to be cautious about the door. The distance from the center to the right side was only about three feet. Nothing shows that plaintiff was not keeping proper lookout for the door as she approached and passed it. She passed in safety. Only after she had gone by was she struck. Whatever might be true if this had taken place before she passed the door, we cannot say as a matter of law that she was bound to anticipate it would be pushed open with such violence as to strike her from behind after she had passed and throw her more than eight feet across the hall. Busy as the period was, it cannot be ruled she was required at her peril to keep her head turned or turning toward the door over her shoulder and backward to guard against so sudden, violent and wide an opening. Nor can it be said certainly that the danger to herself or others would have been greater or less, had she followed a path nearer the center or nearer the wall. There was not much leeway either way, and clearly she was not required to step beyond the center each time in passing the door. Her instructions required the contrary.

Written statements taken from various witnesses shortly after the accident were used to contradict their statements at the trial in some respects. So far as they did so, they merely created conflict in the facts or questions of credibility which were also for the jury. Taking account of all the circumstances, we cannot say plaintiff was contributorily negligent as a matter of law.

II. Liability of Charitable Corporations

We turn to the main question. It is an open one for the District of Columbia. At various times similar complaints have been dismissed on demurrer in the District Court. In only one case was there an appeal. White v. Central Dispensary and Emergency Hospital, 1938, 69 App.D.C. 122, 99 F.2d 355, 362, 119 A.L.R. 1002. The decision dealt with matters of pleading and expressly reserved for the future the determination of 'the law of this jurisdiction in respect of the liability of charitable corporations in suits for negligence. ' The common law of Maryland was not established until 1885. Perry v. House of Refuge, 1885, 63 Md. 20, 52 Am.Rep. 495.

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It is therefore not controlling.

A few further facts pertinent to this issue should be stated, in view of the trial court's finding that plaintiff was a stranger to the charity, and the importance the finding has assumed on appeal. She was a special nurse. She was called to duty and assigned to the case by the hospital's superintendent of nurses. The patient was a paying one, who also paid plaintiff and paid the hospital for her meals. The hospital furnished her working facilities. The arrangement was the usual one for special nurses.

Paradoxes of principle, fictional assumptions of fact and consequence, and confused results characterize judicial disposition of these claims. 1 From full immunity, through varied but inconsistent qualifications to general responsibility is the gamut of decision. The cases are almost riotous with dissent. Reasons are even more varied than results. These are earmarks of law in flux. They indicate something wrong at the beginning or that something has become wrong since then. They also show that correction, though in process, is incomplete

On the other hand, scholarly treatment outside the courts is almost uniform. There is general agreement of such opinion in support of liability and against immunity. 2 Legal scholarship finds an important function not only in research and instruction, but as the most effective agency for constructive criticism of judicial thought and action. Great names in law on this foundation, some as revered as any made so by the judicial function itself. One may mention among others in the common law, Blackstone, Wigmore, Mechem. A few have combined the two functions, each adding luster to the other, for example, Kent, Story, Cooley, Holmes and Stone, in addition to the great Commentator. Therefore, when opinion among scholars who are not judges is uniform or nearly so and that among judges is in high confusion, the former gives direction to the law of the future, 3 while the latter points presently in all directions. In such circumstances scholarly opinion has more than merely persuasive effect. It is the safest guide for jurisdictions where the question has never been determined

A. Underlying Principles

We start with general principles. For negligent or tortious conduct liability is the rule. Immunity is the exception....

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