Bachman v. Young Women's Christian Ass'n

• Decision Date: 31 January 1923
• Parties: BACHMAN v. YOUNG WOMEN'S CHRISTIAN ASS'N ET AL.
• Court: Wisconsin Supreme Court

179 Wis. 178

191 N.W. 751

BACHMAN

v.YOUNG WOMEN'S CHRISTIAN ASS'N ET AL.

Supreme Court of Wisconsin.

Dec. 5, 1922.

Dissenting Opinion Jan. 31, 1923.

Appeal from Circuit Court, Milwaukee County; Gustav G. Gehrz, Judge.

Action by Louis Bachman against the Young Women's Christian Association and the Continental Realty Company. From a judgment for plaintiff, the first-named defendant appeals. Reversed and remanded.

The Continental Realty Company is the owner of the Alhambra building at the corner of Fourth street and Grand avenue in Milwaukee, and on the sixth floor thereof the defendant Young Women's Christian Association used and occupied certain rooms under lease. September 21, 1921, the plaintiff, during a severe windstorm, and while on the sidewalk near said building, was injured by being struck on the head by a part of an adjustable, collapsible window screen falling from one of the windows on the sixth floor in a room under such lease. It was stipulated that the defendant Young Women's Christian Association is a public charitable corporation, having no capital stock, and operated without private gain.

On the trial in the civil court it was found by special verdict that the screen fell, proximately causing plaintiff's injury, through the negligence of defendant Young Women's Christian Association, and not by reason of any extraordinary wind, and his damages were assessed at $1,000.

During the trial a motion was made for a nonsuit as against the landlord Continental Realty Company, which was granted, and the action was thereafter dismissed as to it. From judgment entered in the civil court in plaintiff's favor upon such verdict, defendant Young Women's Christian Association appealed to the circuit court. Such judgment was there affirmed. From the judgment of the circuit court the defendant has appealed.

Doerfler, J., dissenting.Upham, Black, Russell & Richardson, of Milwaukee, for appellant.

Glicksman, Gold & Corrigan, of Milwaukee, for respondent.

ESCHWEILER, J. (after stating the facts as above).

This court in Morrison v. Henke, 165 Wis. 166, 160 N. W. 173, after a consideration of the various doctrines concerning, and the decisions of this and other jurisdictions on the broad question there presented, decided that a charitable institution such as was the defendant hospital there was not responsible in damages to a patient injured by reason of some want of ordinary care on the part of its employés. Such conclusion there reached is equally applicable to the situation and position of the appealing defendant in the present case, and requires a reversal of the judgment.

It was properly and advisedly conceded on the trial of this case that the appellant here, Young Women's Association, is a public charitable corporation, and is not operated for private gain. It is therefore in the same class and stands on the same footing as do hospitals which are conducted as public charitable institutions, and which particular form of charitable corporations were the defendants in most of the prior decisions on this subject.

In Morrison v. Henke, supra, upon the facts there presented the question was necessarily limited in its application to whether or not there should be liability on the doctrine of respondeat superior to a patient who was within its walls for treatment. The question here presented is as to whether or not there shall be the same exemption from liability for negligence of the employés towards one who was a stranger, so far as receiving service or benefit from such charitable organization is concerned. Upon the principle of our decision in the former case we can see no reason why the same doctrine of nonliability should not apply to the stranger in this case as to the patient in the other. The fundamental reason why a charitable organization should not be held liable under the doctrine of respondeat superior is not based upon any situation that the injured person may occupy towards the charitable corporation, but upon the inherent and well-recognized distinction between such charitable corporations organized, as they are, with the primary and principal purpose of assisting the sick, unfortunate, or needy, or other instances of deserving humanity, and without provision for or expectancy of receiving financial returns for such particular service, compared with corporations which are primarily and principally organized for or in expectation of private gain.

The reason why under the doctrine of respondeat superior the liability incurred by the breach of the positive obligation of due care towards others, which every responsible human being has resting upon him, may be loaded onto others, in addition to such defaulting human agent, has been recently and fully treated in the case of Apfelbacher v. State, 160 Wis. 565, 575, 152 N. W. 144, and needs no further discussion.

Because therefore of the nature, purpose, and functions of the defendant Young Women's Christian Association as master and employer of the negligent employé, who was individually responsible for the injury to the plaintiff in this case, and not because of any particular position the plaintiff here occupied towards the defendant, the liability for this accident must rest, so far as plaintiff is concerned, on the negligent individual, where it of course primarily belongs, and it cannot be carried over as it would be were the defendant such a principal or master as is the situation in the vast majority of other instances and cases.

We are satisfied therefore that this case comes within the scope and purpose of the spirit and basis of and for the decision in the Morrison Case, supra, and that it should and must control here.

The precise and narrower question here presented was decided at substantially the same time as was the Morrison v. Henke case, supra, and the same result reached in Loeffler v. Sheppard & Enock Pratt Hospital, 130 Md. 265, 100 Atl. 301, L. R. A. 1917D, 967, where the Maryland court held that a charitable organization was not liable to a third person, who, as city fireman, was injured by the negligence of the hospital employés in maintaining a fire escape in connection with the building. Although that case followed a prior holding of the same court and based upon the so-called trust fund doctrine, yet that in no manner lessens the weight to be given to or value of the result there reached. A similar holding as to nonliability of an institution of learning to one upon its premises as a visitor merely was decided in Hill v. Tualatin Academy, 61 Or. 190, 121 Pac. 901.

In Roosen v. Peter Bent Brigham Hosp., 235 Mass. 66, 126 N. E. 392, 14 A. L. R. 563 (with note at page 572), also a later case, the prior decisions of that court and other states were reviewed, and the doctrine of nonliability of such charitable organizations was again affirmed, and it was further held that under the facts there presented there would be no liability, even though the negligence relied upon for recovery was that of the association in negligently selecting incompetent servants. This holding was expressly reaffirmed in Kidd v. Mass. Hom. Hospital, 237 Mass. 500, 130 N. E. 55.

Again, in the late case of Emery v. Jewish Hospital Ass'n, 193 Ky. 400, 236 S. W. 577, although involving an action brought by an employé of such hospital, there was a full discussion of the many decisions, and that court expressly stated as its approved rule that such an institution was exempt from liability for the negligent acts its managers, servants, or employés to any person whatsoever.

In Deming Ladies Hospital Ass'n v. Price (C. C. A.) 276 Fed. 668, and Nicholas v. E. D. Home, 281 Mo. 182, 219 S. W. 643, both subsequent cases, the rule of nonliability to a patient was again upheld.

We have not overlooked the subsequent decisions in Mulliner v. Evangelischer Diakonniessenverein of Minn. Dist. of German Evangelical Synod of North America, 144 Minn. 392, 175 N. W. 699, and Marble v. Nicholas Senn Hospital, 102 Neb. 343, 167 N. W. 208, holding the contrary.

It follows from what has been said that plaintiff cannot maintain his action against the appellant, and this of course renders it unnecessary to discuss any of the other questions presented on this appeal.

Judgment reversed, and the cause remanded, with directions to dismiss the complaint.

DOERFLER, J. (dissenting).

In re Morrison v. Henke, 165 Wis. 166, 170, 160 N. W. 173, in pronouncing in favor of the doctrine of immunity of a charitable hospital for the negligent acts of a servant, it is said:

“Since the hospital derives no profit for its work, and since it is founded for the sole purpose of conserving the health and life of all who may need its aid, and since it ministers to those who cannot pay as well as those who can, thus acting as a good Samaritan, justice and...