Bodenheimer v. Confederate Memorial Ass'n

• Decision Date: 04 January 1934
• Docket Number: No. 3525.,3525.
• Citation: 68 F.2d 507
• Parties: BODENHEIMER v. CONFEDERATE MEMORIAL ASS'N.
• Court: U.S. Court of Appeals — Fourth Circuit

68 F.2d 507 (1934)

BODENHEIMER v. CONFEDERATE MEMORIAL ASS'N.

No. 3525.

Circuit Court of Appeals, Fourth Circuit.

January 4, 1934.

Robert H. McNeill, of Washington, D. C. (McNeill & McNeill, of Washington, D. C., and Elledge & Wells and J. M. Wells, Jr., all of Winston-Salem, N. C., on the brief), for appellant.

Robert G. Butcher, of Richmond, Va. (Parrish & Butcher, of Richmond, Va., on the brief), for appellee.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

PARKER, Circuit Judge.

This is an appeal in an action instituted by a citizen of North Carolina against the Confederate Memorial Association, a corporation created under the laws of Mississippi, to recover damages on account of personal injuries alleged to have been sustained as a result of the defective condition of a cement walk on defendant's premises. The declaration alleged that, after plaintiff had visited "Battle Abbey," a building maintained by defendant in Richmond, Va., and had paid the usual admission fee and viewed the paintings and other exhibits there contained, she was invited by the superintendent of defendant to visit the buildings and grounds of the Confederate Soldiers' Home nearby, and that, as she was passing for this purpose over a concrete walkway on the defendant's property, she fell and was injured as a result of the defective condition of the walkway. There was an allegation that defendant was guilty of negligence in the selection of its agents, servants, and employees, but no allegation of facts showing any causal connection between such negligence and the condition of the walkway which caused plaintiff's injury. Defendant, in addition to pleading the general issue, filed a special plea to the effect that it was a charitable corporation and as such not liable in damages for the negligence charged. There was a traverse of the special plea; and, a jury trial being waived, all matters of law and fact arising thereon were submitted to the court.

The court found that the defendant was incorporated to erect and maintain a Confederate Memorial Institute, and there to collect, arrange, and preserve statutes, portraits. photographs, and historical data relating to the Southern Confederacy, "calculated to enable future historians to obtain such reliable facts and data as will assist them in writing fair, accurate and impartial history of said war and of the South, the said association being educational, patriotic and historical at all times." It was shown that all of the property of the defendant had been given to it by patriotic individuals and societies to accomplish the purposes for which it was incorporated. And with respect to the charging of fees for admission to "Battle Abbey," the building in Richmond in which its portraits and other historical data are housed, the court found the facts to be as follows: "From the testimony it clearly appears that the funds derived from admission fees are scarcely sufficient to pay the necessary expenses of keeping `Battle Abbey' open for the benefit of historians, students and the general public; that there has never been any profit from the operations of the association, and even if there were profits therefrom the trustees, under the terms of the charter, would be required to expend such profit in the acquisition of additional historical data; that defendant is a non-stock corporation, and the sole purpose for which the institution is maintained is to make available for historians, students and the public generally valuable Confederate historical documents, portraits, paintings and the like, which purpose is wholly public in its nature; and that the only paid employees of the association are a hostess, a superintendent of buildings and grounds, and an assistant to such superintendent. It further appears from the testimony that the total income for the year was $4,665.00, $2,565.00 of which was derived as income from endowments and from other sums donated for the purpose of furthering the objects of the association, that the remaining $2,100.00 was derived from gate receipts or fees, and that the association ever since its organization has been, and still is, dependent upon the voluntary contributions and services of its members and friends for the continuance of its existence and activities."

On these facts, the defendant was held to be an eleemosynary or charitable institution and the plaintiff a beneficiary of the charity. The special plea was, therefore, sustained, and judgment entered thereon for defendant. From this judgment plaintiff has appealed.

The decision of the lower court was unquestionably correct. In Ettlinger v. Trustees of Randolph Macon College (C. C. A. 4th) 31 F.(2d) 869, we went fully into the question here involved, and there is no need to repeat what was said in that case as to the basis or application of the doctrine exempting eleemosynary institutions from liability for torts. We there held: (1) That, on grounds of public policy, those who accept the benefits of an eleemosynary institution are precluded from recovering damages of it on account of the negligence of its agents and servants; (2) that, if the institution is in fact a charitable one conducted for the benefit of humanity and not for profit, its exemption from liability for the torts of its agents and servants is not affected by the fact that it may have made a charge to the injured person for the service rendered; ...