Adkins v. St. Francis Hospital of Charleston, W. Va.

• Decision Date: 13 July 1965
• Docket Number: No. 12413,12413
• Citation: 143 S.E.2d 154,149 W.Va. 705
• Court: West Virginia Supreme Court
• Parties: Clarence Lee ADKINS v. ST. FRANCIS HOSPITAL OF CHARLESTON, WEST VIRGINIA, a Corporation.

Page 154

143 S.E.2d 154

149 W.Va. 705

Clarence Lee ADKINS v. ST. FRANCIS HOSPITAL OF CHARLESTON, WEST VIRGINIA, a Corporation.

No. 12413.

Supreme Court of Appeals of West Virginia.

Submitted May 4, 1965.

Decided July 13, 1965.

Syllabus by the Court

1. A charitable hospital is liable to a patient who is injured by the negligent acts of its servants, agents and employees.

2. To the extent that Roberts v. Ohio Valley General Hospital, 98 W.Va. 476, 127 S.E. 318, 42 A.L.R. 968; Fisher v. Ohio Valley General Hospital Association, 137 W.Va. 723, 73 S.E.2d 667; Koehler v. Ohio Valley General Hospital Association, 137 W.Va. 764, 73 S.E.2d 673; and Meade v. St. Francis Hospital of Charleston, West Virginia, 137 W.Va. 834, 74 S.E.2d 405, are inconsistent with the decision in this case, they are hereby overruled.

Herman D. Rollins, Charleston, for appellant.

Jackson, Kelly, Holt & O'Farrell, William T. O'Farrell, A. Keith McClung, Jr., Charleston, for appellee.

CAPLAN, Judge:

In this civil action, instituted in the Court of Common Pleas of Kanawha County, the plaintiff, Clarence Lee Adkins, seeks to recover from the defendant, St. Francis Hospital of Charleston, West Virginia, damages for personal injuries caused by the alleged negligence of an employee of the defendant hospital.

The plaintiff, in March, 1962, was stricken with an illness which resulted in partial paralysis, temporarily destroying his eyesight and impairing the use of his left arm and left leg. He was the thereupon admitted to the defendant hospital for care and treatment and was placed in a ward. Within a few hours after his admission the plaintiff's physician directed that he be given a tub bath. Pursuant to this direction an orderly, James Scott, was instructed to perform that duty. Scott placed the plaintiff in a wheelchair and wheeled him into the bathroom. While preparing the plaintiff for his bath, the orderly permitted him to fall against a steam radiator which was exposed and which was extremely hot.

According to the allegations in the plaintiff's affidavit, made a part of the record of this proceeding, Scott did not attempt to remove the plaintiff from the radiator but instead went for assistance. Due to his inability to move, the plaintiff was forced to remain on this hot radiator for a period of several minutes, thereby sustaining third degree burns to his left arm, left shoulder and body.

In his amended complaint the plaintiff charges that the defendant was guilty of negligence in that 'it did not have the said radiator covered as common care and prudence would suggest and require'. He further charges that the defendant was negligence in employing and retaining in its service the orderly, James Scott, 'who was incompetent for said work and who had been released from the penitentiary of West Virginia only a few weeks prior thereto where he had served a sentence of several years on conviction of a felony.'

The defendant filed an answer to the complaint, wherein it specifically denied that it or any of its agents of employees were guilty of negligence incident to the fall of the plaintiff and averred that it used reasonable care in the selection and retention of its agents and employees. Answering further, the defendant averred that it is a nonstock, nonprofit corporation engaged in operating a charitable hospital; that by reason thereof it is operating at a loss; and that while not admitting any negligence, it has no funds out of which to pay any judgment except those funds which are obtained by it as a charitable institution.

A motion to dismiss was then filed by the defendant on the grounds that it is a nonstock, nonprofit corporation operating a charitable hospital and is therefore not liable for the injuries complained of and for the additional reason that it used reasonable care in the selection and retention of its agents and employees. Specifically, the defendant averred that it was not negligent in employing James Scott, who had formerly served a sentence of several years in the penitentiary on a felony conviction.

Prior to the taking of any action upon the motion to dismiss, this action, upon the motion of the parties, was transferred to the Circuit Court of Kanawha County. Thereafter, the defendant filed a motion for a summary judgment, submitting therewith certain affidavits in support of its position. In these affidavits the defendant sought to establish that it is a nonstock, non-profit corporation, maintaining a hospital which is operated without profit; that its charter, which was included as an exhibit, is probative thereof; that its employee, Scott, is experienced in and competent to perform the work for which he was employed; and that it was not negligent in the hiring and retention of such employee. The defendant avers that pleadings and affidavits show that it is entitled to a judgment as a matter of law.

The plaintiff countered with his affidavit and with the affidavits of his wife and H. D. Rollins, his counsel. In his affidavit the plaintiff related the manner in which his injuries were received, alleging therein that such injuries were caused by the negligent acts of Scott. Attached to his affidavit as an exhibit was a certified copy of the order of sentence imposed upon Scott by the Intermediate Court of Kanawha County. Also set out in the affidavit was the plaintiff's statement that he was admitted to the defendant hospital as a paying patient, that this was understood by said hospital and that it had been paid in full for all services rendered.

In her affidavit the plaintiff's wife, Ruth Pauline Adkins, said that the defendant hospital refused to admit her husband as a patient without assurance that all bills incurred in his behalf would be paid; that only after such assurance was given by Doctor Richard Lewis was the plaintiff admitted; and that all bills incurred in his behalf have been paid.

H. D. Rollins said, by affidavit, that he was employed to represent the plaintiff; that after he had contacted the defendant, an insurance adjuster approached him and advised him that said defendant hospital carried liability insurance; that said adjuster requested the deponent to withhold instituting an action on this claim so that they could discuss settlement; and that the adjuster instead of discussing a settlement, turned the matter over to attorneys who now represent the defendant. In a further affidavit Mr. Rollins stated that all hospitals, except two, in the vicinity of Charleston are nonstock, nonprofit hospitals and that he is advised that all such hospitals carry public liability insurance which would cover an injury such as suffered by the plaintiff.

The circuit court, upon the pleadings, affidavits and exhibits referred to above, and upon arguments of counsel, sustained the motion and entered summary judgment for the defendant. It is clear from the court's Memorandum Opinion, made a part of this record, that its ruling was based upon prior decisions of this Court wherein it was held that a charitable hospital is not liable to a patient for the negligent acts of its servants, agents and employees in the absence of negligence in the selection and retention of such servants, agents and employees. These decisions form a proper basis for the trial court's ruling that the defendant was entitled to a summary judgment as a matter of law. This appeal was granted, however, for the specific purpose of re-examining and reconsidering the principles expressed in those decisions and to decide whether such principles should be adhered to or rejected. The basic question to be decided here, therefore, is whether a nonstock, nonprofit hospital should be liable for the torts of its servants, agents and employees, or is such an entity immune from such liability? In other words, should we abide by the rule or doctrine of charitable immunity as applied by this Court or should such rule be abrogated?

The doctrine of charitable immunity was originally formulated in England in 1846, in the case of The Feoffees of Heriot's Hospital v. Ross, 12 Clark & Fin. 507, 8 Eng.Rep. 1508. Therein Lord Cottenham, holding that a charitable hospital could not be liable in tort, said: 'To give damages out of a trust fund would not be to apply it to those objects whom the author of the fund had in view, but would be to divert it to a completely different purpose.' It can thus be seen that the doctrine in its original form established an immunity from liability which was total and complete. In 1866 and 1871 this case was overruled and the rule that charitable corporations were immune from tort liability was abrogated. Mersey Docks Trustees v. Gibbs, L.R. 1 H.L. 93; Foreman v. Mayor of Canterbury, L.R. 6 Q.B. 214.

Notwithstanding the fact that the English Courts had changed their course and no longer abided by the rule in Heriot's case, Massachusetts, in 1876, in McDonald v. Massachusetts General Hospital, 120 Mass. 432, 21 Am.Rep. 529, adopted this repudiated rule. Likewise, in 1885, Maryland followed Heriot's case in Perry v. House of Refuge, 63 Md. 20, 52 Am.Rep. 495. Rhode Island, in 1879, repudiated the immunity rule. Glavin v. Rhode Island Hospital, 12 R.I. 411, 34 Am.Rep. 675. It was in this confused state of decisions that the doctrine of charitable immunity found its way into the law of this country.

This Court never has embraced fully the doctrine of charitable immunity. In Roberts v. Ohio Valley General Hospital, 98 W.Va. 476, 127 S.E. 318, 42 A.L.R. 968, the first case in which this Court considered this question, it was held that a charitable hospital should not be held liable for the negligence of its employees. However, the opinion did not stop there, but went on to say that it is incumbent upon such hospital to use reasonable care in the selection and retention of its employees and for failure to do so it is liable for injuries received by its patients due to their incompetency. Thus, a qualified version of...