Murtha v. New York Homeopathic Med. Coll. & Flower Hosp.

• Decision Date: 24 February 1920
• Citation: 126 N.E. 722,228 N.Y. 183
• Parties: MURTHA v. NEW YORK HOMEOPATHIC MEDICAL COLLEGE AND FLOWER HOSPITAL.
• Court: New York Court of Appeals Court of Appeals

228 N.Y. 183

126 N.E. 722

MURTHA

v.NEW YORK HOMEOPATHIC MEDICAL COLLEGE AND FLOWER HOSPITAL.

Court of Appeals of New York.

Feb. 24, 1920.

Action by James H. Murtha against the New York Homeopathic Medical College and Flower Hospital. From judgment of Appellate Division (183 App. Div. 886,169 N. Y. Supp. 1105) affirming a judgment entered upon a verdict of a jury in favor of plaintiff under the direction of the court, defendant appeals.

Affirmed.

See, also, 126 N. E. 915.

Appeal from Supreme Court, Appellate Division, First department.

Frank Verner Johnson, of New York City, for appellant.

Martin Conboy, of New York City, for respondent.

CARDOZO, J.

[1] The plaintiff, while riding in a taxicab, was run down and injured by the defendant's ambulance. The Legislature has created for the city of New York a board of ambulance service, with authority to establish ambulance districts, and contract with any hospital corporation for ambulance service therein. Greater N. Y. Charter, § 693a: L. 1909, c. 395. The defendant, a hospital corporation, undertook to supply such service in return for a yearly payment, and was fulfilling its undertaking at the time of the collision. It admits that its driver was negligent, and that the plaintiff was blameless; but it couples the admission with the prayer that it be absolved from liability. The claim of exemption does not rest upon its character as a public charity. The rule is now settled that a hospital, though public, is ‘liable to strangers, i. e., to persons other than patients, for the torts of its employés committed within the line of their employment.’ Schloendorff v. N. Y. Hospital, 211 N. Y. 125, 129,105 N. E. 92, 93 (52 L. R. A. [N. S.] 505, Ann. Cas. 1915C, 581). The claim put forward by the defendant is that it is doing the state's work, and that it shares the state's immunity.

[2][3][4] We find the claim untenable. The state is not liable for the torts of its agents and contractors unless such liability has been assumed. Smith v. State of N. Y., 227 N. Y. 405, 125 N. E. 841. The exemption has been extended to the civil divisions of the state, its counties, cities, towns, and villages (Const. art. 12, § 1), when engaged, as the delegates of the state, in the discharge of governmental functions. Maxmilian v. Mayor, etc., of N. Y., 62 N. Y. 160, 20 Am. Rep. 468;Hughes v. County of Monroe, 147 N. Y. 49, 41 N. E. 407, 39 L. R. A. 33; Wilcox v. City of Rochester, 190 N. Y. 137, 82 N. E. 1119,17 L. R. A. (N. S.) 741,13 Ann. Cas. 759. But agents and contractors, though unable to impose liability in such circumstances on the state or its divisions, remain liable themselves, and this whether they act in person, or by subagents or servants. Konner v. State of N. Y., 227 N. Y. 478, 125 N. E. 843. The defendant is neither the state nor a civil division of the state. Its position is the same as that of any other contractor. If the keeper of a livery stable or of a motor garage had undertaken a like service, there would be little obscurity about the resulting liability. Not different is the plight of the hospital whose servants by their negligence have worked an injury to strangers. Liability does not rest on the circumstance that the hospital in this instance was serving for pay. One traveler run down through the negligence of another is not concerned to inquire whether the offender has gone forth on the highway for the love of man or of money. The defendant, were it not for the acceptance of the money, might have declined without wrong to enter on the work at all. That is not important now. It set its hand...