Avellone v. St. John's Hospital

• Decision Date: 18 July 1956
• Docket Number: No. 34512,34512
• Citation: 135 N.E.2d 410,165 Ohio St. 467
• Parties: , 60 O.O. 121 AVELLONE, Appellant, v. ST. JOHN'S HOSPITAL, Appellee.
• Court: Ohio Supreme Court

Page 467

165 Ohio St. 467

135 N.E.2d 410, 60 O.O. 121

AVELLONE, Appellant, v. ST. JOHN'S HOSPITAL, Appellee.

No. 34512.

Supreme Court of Ohio.

July 18, 1956.

Syllabus by the Court.

1. A corporation not for profit, which has as its purpose the maintenance and operation of a hospital, is, under the doctrine of respondeat superior, liable for the torts of its servants. Taylor v. Protestant Hospital Ass'n, 85 Ohio St. 90, 96 N.E. 1089, 39 L.R.A.,N.S., 427; Rudy v. Lakeside Hospital, 115 Ohio St. 539, 155 N.E. 126, and paragraphs one and two of the syllabus of Lakeside Hospital v. Kovar, 131 Ohio St. 333, 2 N.E.2d 857, overruled.

2. In an action to recover damages for injury to a patient alleged to have been caused by the negligence of a nonprofit hospital, an answer filed by the defendant, which alleges that it is a corporation not for profit maintaining and operating a public charitable hospital, does not state a defense and is subject to demurrer.

This is an action to recover damages for personal injuries sustained while plaintiff was a patient in defendant's hospital. It is alleged in the petition that the defendant is a corporation engaged in the operation of a hospital; that plaintiff was admitted to defendant's hospital, as a paying patient, for surgery; that soon after his admission he was negligently permitted to fall from a hospital bed furnished by defendant, as a result of which he sustained injuries; and that, while treating plaintiff for such injuries, defendant again negligently permitted plaintiff to fall out of a hospital bed, whereby plaintiff sustained further injuries. The prayer of the petition is for a money judgment.

The defendant, in its answer, admits it is a corporation engaged in the operation of a hospital and denies that it was negligent in any manner, and that plaintiff was injured in the manner or to the extent alleged.

Further answering, and by way of 'separate defense,' defendant alleges that it is a corporation not for profit maintaining and operating a charitable hospital at a loss, the deficit being made up by charitable gifts; that its funds are derived from donations, gifts, bequests, and such income as it may receive from patients who are able to pay; and that there are patients who are not able to pay and are cared for by defendant as a matter of charity. The prayer of the answer is that the petition be dismissed.

Plaintiff demurred to the separate defense contained in the answer, 'on the ground that on its face it is insufficient in law.'

The Court of Common Pleas overruled the demurrer and, plaintiff not desiring to plead further, dismissed the action.

The Court of Appeals affirmed the judgment of the trial court.

An allowance of a motion to certify the record brings the cause to this court for review.

A. W. Thomas and Ellis B. Brannon, Cleveland, for appellant.

Arter, Hadden, Wykoff & Van Duzer and R. Crawford Morris, Cleveland, for appellee.

MATTHIAS, Acting Chief Justice.

The question raised by the pleadings is whether a corporation not for profit, which has as its purpose the maintenance and operation of a hospital, and whose funds and income are derived from private donations, public agencies and paying patients, is immune from liability as to a former patient who alleges that he was injured as a result of negligence on the part of the hospital while he was a patient therein. The question is raised by a demurrer to a separate answer filed by the defendant and is, thus, solely a pleading question.

The first case decided by this court in which the question was directly presented was Taylor v. Protestant Hospital Ass'n, 85 Ohio St. 90, 96 N.E. 1089, 39 L.R.A.,N.S., 427, decided in 1911, 45 years ago. The question has been reexamined by this court periodically, the last decision on the question being in the case of Newman v. Cleveland Museum of Natural History, 143 Ohio St. 369, 55 N.E.2d 575, decided in 1944, over 12 years ago.

The law on the immunity, partial immunity or nonimmunity from liability of organizations not for profit which maintain and operate hospitals, which law has never been what might be described as 'settled,' has been discussed, talked about and ruled on by many courts in the nation with many varied and divergent results. The question is again before this court for a timely re-examination.

It is interesting to note that many of the nation's courts have, in the past 10 years, undertaken such re-examination. In Prosser on Torts (2 Ed., 1955), 787, Section 109, the situation is analyzed as follows:

'Prior to 1942 only two or three courts had rejected the immunity of charities outright. In that year a devastating opinion of Judge Rutledge in the Court of Appeals of the District of Columbia reviewed all of the arguments in favor of the immunity and demolished them so completely as to change the course of the law. It has been followed by a flood of recent decisions holding that a charity is liable for its torts to the same extent as any other defendant. In addition to the District, the immunity is now repudiated in Arizona, Alaska, California, Colorado, Delaware, Floriad, Iowa, Kansas, Minnesota, New Hampshire, New York within the limits of its peculiar independent contractor theory, North Dakota, Oklahoma, Puerto Rico, Utah, Vermont, and Washington.

'The immunity of charities is clearly in full retreat, and it may be predicted with some confidence that the end of another decade will find a majority of the American jurisdictions holding that it does not exist.'

A review of the case of President and Directors of Georgetown College v. Hughes, 76 U.S.App.D.C. 123, 130 F.2d 810, discloses indeed a 'devastating opinion of Judge Rutledge,' an opinion which is both well written and well reasoned.

Although it seems to be common knowledge that the rule of immunity of charitable associations, acknowledged to be first announced in America in McDonald v. Massachusetts General Hospital, 120 Mass. 432, 21 Am.Rep. 529, was derived from the findings of certain English cases which had been overruled prior to the derivation, a thorough study of such English cases discloses that the situation can not be better set out than as described as follows by Judge Rutledge in the Georgetown College case, supra :

'The foundation of immunity in this country is the dictum of Lord Cottenham in The Feoffees of Heriot's Hospital v. Ross, 1846, 12 Clark & Fin., 507, 513, 8 Eng.Reprint 1508: '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.' The action was for damages for wrongful exclusion from the benefits of the charity, not for personal injury inflicted in its operation. Previously, in Duncan v. Findlater, 1839, 6 Clark & Fin., 894, 7 Eng.Reprint 934, the same judge had uttered a similar dictum, and this was followed in Holliday v. St. Leonard, 1861, 11 C.B., N.S., 192. However, the dictum of Duncan v. Findlater was overruled by Mersey Docks Trustees v. Gibbs (1866), L.R. 1 H.L., 93, and the ruling of Holliday v. St. Leonard was reversed by Foreman v. Mayor of Canterbury (1871), L.R. 6 Q.B., 214.

'In this state of the English decisions, Massachusetts adopted the repudiated rule of Holliday v. St. Leonard in McDonald v. Massachusetts General Hospital, 1876, 120 Mass. 432, 21 Am.Rep. 529, and Maryland followed Heriot's case in Perry v. House of Refuge, 1885, 63 Md. 20, 52 Am.Rep. 495. Apparently both courts acted in ignorance of the English reversal. In any event, they resurrected in America a rule already dead in England, and thereby gave Lord Cottenham's dictum a new lease on life in the New World.

'These facts have been the subject of comment. But it is not always noted that in Heriot's case Lord Cottenham and his brethren did not purport to lay down a rule of absolute immunity. They regarded exemption of the hospital's funds as only an application of the well-settled law of trusts. The opinions are couched in trust, not corporate, terminology. Lord Cottenham thought to give damages would violate the trust purpose. Lord Campbell said it would pervert the intention of the donor. But he emphasized that it would indemnify 'the trustees * * * against the consequences of their own misconduct * * * Damages are to be paid from the pocket of the wrongdoer, not from a trust fund.' (Italics supplied.) As Lord Brougham put it, 'Because the trustees have violated the statute, therefore--what? not that they shall themselves pay the damages, but that the trust fund which they administer shall be made answerable for misconduct.' (Italics supplied.) Seemingly all regarded the hospital's governors as being technically and substantially trustees of an express trust. On that theory and the fact that the governors themselves were charged with violating the statute, there was a source of reparation in their pockets. The victim would not be left with injury and without remedy. Unless trustees of a charity are treated differently from all others, that would be true in any case where the charity is organized technically as a trust.'

Following this lucid discussion, Judge Rutledge drew the obvious conclusion that, although even the overruled English cases anticipated a recovery from others than the tort-feasor, under an ordinary application of respondeat superior to the trustees therein involved, the transplantation of the rule into American jurisprudence, together with the emergence of the incorporated charitable institution, which by its very nature excludes its directors from individual liability under respondeat superior, 'strips the victim of all claim except against the engligent actor.'

Judge Rutledge further concluded:

'The fault in the foundation accounts in part for the weakness later disclosed in the structure erected on it.'

He then continued to explore and explode the various theories upon which courts have based findings of immunity,...