99 F.2d 355 (D.D.C. 1938), 6961, White v. Central Dispensary and Emergency Hospital

Docket Nº:6961.
Citation:99 F.2d 355
Case Date:June 30, 1938
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 355

99 F.2d 355 (D.D.C. 1938)




No. 6961.

United States Court of Appeals, District of Columbia.

June 30, 1938

Page 356

Cornelius H. Doherty and Robert L. Jefferys, both of Washington, D.C., for appellant.

Benjamin S. Minor, Arthur P. Drury and John M. Lynham, all of Washington, D.C., for appellee Central Dispensary and Emergency Hospital.

Before GRONER, Chief Justice, and STEPHENS and EDGERTON, Associate justices.

STEPHENS, Associate Justice.

This is an appeal from an order of the District Court of the United States for the District of Columbia sustaining a demurrer to a declaration. The plaintiff, the appellant here-- and hereafter referred to as

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the appellant-- declined to plead further. The District Court thereupon entered judgment for the defendant Central Dispensary and Emergency Hospital, the appellee here-- and hereafter referred to as the appellee. 1 The declaration was in the following terms

'The plaintiff, Arthur B. White, by and through his attorneys, Cornelius H. Doherty and Robert L. Jefferys, sues the defendants, Central Dispensary and Emergency Hospital, a corporation doing business in the District of Columbia, and Dr. Francis Threadgill, a physician at the Central Dispensary and Emergency Hospital, for that heretofore, to wit, on the 28th day of February, 1936, the plaintiff was struck by an automobile while crossing Eleventh Street between R and S Streets, Northwest, and was knocked unconscious by the said blow; that the said plaintiff was taken to the Central Dispensary and Emergency Hospital and was examined by the defendant Dr. Francis Threadgill, and plaintiff says that the defendants, and each of them, severally held themselves out as capable of making a proper diagnosis and treatment of any and all physical disabilities arising from any cause, and invited the public, including the plaintiff, to use their service at a remuneration to be charged by defendants, and the said defendants undertook to render proper medical care and assistance to plaintiff, and it then and there became and was the duty of the defendants, and each of them, to exercise reasonable care to see that the said plaintiff obtained proper medical examination and attention, but plaintiff says that, notwithstanding their duty in the premises, the said defendants, and each of them, improperly diagnosed the injuries sustained by the said plaintiff and caused the plaintiff to be taken to a Metropolitan Police Station and charged with intoxication and required to remain in a cell for a long period of time, and that thereafter plaintiff was again brought to the said Central Dispensary and Emergency Hospital where the said Dr. Francis Threadgill, acting on behalf of himself and the said co-defendant, Central Dispensary and Emergency Hospital, refused to admit the said plaintiff to the Hospital and said: 'I treated this man once before tonight. There is nothing wrong with him. I advise you to take him home.'; that thereafter plaintiff was taken to the office of a physician in the District of Columbia who diagnosed plaintiff's injury as a broken wrist, ruptured kidney, both kneecaps dislocated and lacerations of the head, and plaintiff was then taken to Gallinger Municipal Hospital where the diagnosis of the physician was substantiated, and plaintiff remained in the Hospital until the 22nd day of August, 1936; the plaintiff says that by reason of the failure of the defendants to properly diagnose his injuries after they had undertaken to do so, plaintiff was caused to become paralyzed and to suffer for a long period of time and was required to stay away from his employment from the 28th day of February, 1936, until the first day of October, 1936, and plaintiff's nervous system was severely shocked and permanently injured and his functioning impaired and was greatly damaged by reason of his arrest and detention by the police, which was occasioned by the negligent failure of the defendants to properly diagnose his injuries, and plaintiff suffered and will continue to suffer great physical and mental pain and anguish, all to the plaintiff's damage in the sum of Fifteen Thousand Dollars ($15,000.00).'

The sole assignment of error is that the District Court erred in sustaining the demurrer to the declaration. In support of the ruling of the trial court, the appellee urges that the declaration was defective for failing 'to aver (1) where or the purposes for which the defendant, Central Dispensary and Emergency Hospital, was incorporated, or its corporate powers, duties and functions; (2) that it is a corporation organized and operated for the purposes of gain and profit; (3) that it co-defendant, Dr. Francis Threadgill, was its agent and acted within the scope of his employment in making the alleged improper diagnosis of plaintiff's alleged injuries, and in the commission of the other acts complained of against him; and (4) that the plaintiff was charged by said defendant, or that he paid or contracted to pay it for services rendered or to be rendered to him. ' The appellee also urges in its brief that the court should take judicial notice that it is a charitable corporation.

1. Under its points (1) and (2) the appellee contends that it was necessary for the appellant to allege in the declaration that the appellee was a business corporation operating for profit, not a charitable

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corporation. The point has not been ruled on in this jurisdiction. The general rule of substantive law is that corporation, like individuals, are liable for their torts. Hence it would seem that a declaration against a corporation should be held to state a cause of action if it alleges merely negligence by the corporation proximately causing injury to the plaintiff, and that, if the corporate defendant seeks to escape liability under the doctrine obtaining in some jurisdictions that the general rules governing liability for tort do not apply to charitable corporations, it should be required to plead and to prove as a defense that it is a charity. The position taken by the appellee would require every plaintiff suing a corporate defendant in tort for negligence to anticipate the possible operation of such a doctrine by alleging and ultimately proving, if issue was joined, that the defendant was not charitable in character. This would place a grave burden upon plaintiffs--because proof that a corporation is a charity is much more readily available to it than to others, since it can easily produce its charter, books, and records, and demonstrate its legal purpose and the actualities of its operations. The appellee cites no authorities in support of its contention except Bauer v. Childrens Hospital, a decision of the trial court in 1927, reported in 55 Wash. Law Rep. 509, which we discuss below. And we find no authorities outside this jurisdiction supporting the appellee's contention. On the contrary the proposition that the charitable nature of a corporate defendant is an affirmative defense is adequately supported by authority. Lewis v. Young Men's Christian Ass'n, 206 Cal. 115, 273 P. 580, 1928; Inderbitzen v. Lane Hospital, 124 Cal.App. 462, 12 P.2d 744, 13 P.2d 905, 1932; Pikeville Methodist Hospital v. Donahoo, 221 Ky. 538, 299 S.W. 159, 1927; Brennan v. Cabanne Methodist Episcopal Church, South, Mo. Sup., 192 S.W. 982, 1917; Vermillion v. Woman's College of Due West, 104 S.C. 197, 88 S.E. 649, 1916; Barnes v. Providence Sanitarium, Tex. Civ. App., 229, 1935; Susmann v. Young Men's Christian Ass'n of Seattle, 101 Wash. 487, 172 P. 554, 1918; see Bruce v. Young Men's Christian Ass'n, 51 Nev. 372, 378, 277 P. 798, 799, 1929.

In the course of its brief the appellee urges that the court should take judicial notice that it is a charitable corporation. It seeks to support this position in part by alluding to certain acts of Congress making appropriations for the erection of a new building, for the installation of a new elevator, and for the treatment of indigent patients under contracts to be made with the appellee by the District of Columbia Board of Charities; and the appellee cites Bauer v. Childrens Hospital, supra. In that case, which was also an action for negligence against a hospital corporation, there was, as in the instant case, no allegation in the declaration that the defendant was maintaining a hospital for profit and none that the care and treatment of the person alleged to have been injured were rendered for pay. But the trial court took judicial notice of the fact that Congress made annual appropriations to the defendant for the care of indigent patients, and therefore sustained a demurrer to the declaration upon the theory that the defendant was, in its relation to the patient alleged to have been injured, a charity. We think this ruling was wrong. Arguably such enactments indicate that Congress regarded the appellee at the time of the enactments as of a worthy nature, but they cannot be conclusive as to the legal status of a hospital corporation or as to the actualities of its operations. Congress gives subsidies to the merchant marine, but it is not a charitable institution. The appellee seeks further to support its position in respect of judicial notice by referring to the records of the trial court in other judicial proceedings as showing that the appellee is a charitable institution organized under D.C. Code (1929), tit. 5, c. 5, Sec. 121 et seq., for the purpose of providing 'a suitable building in the City of Washington, District of Columbia for a Dispensary where all needy persons, without distinction, may be provided gratuitously with medical and surgical service and treatment and with medicines. ' Insofar as the records in the...

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