Bougon v. Volunteers of America

• Citation: 151 So. 797
• Decision Date: 02 January 1934
• Docket Number: 14575
• Court: Court of Appeal of Louisiana (US)
• Parties: BOUGON v. VOLUNTEERS OF AMERICA ET AL

151 So. 797

BOUGON v. VOLUNTEERS OF AMERICA ET AL

No. 14575

Court of Appeal of Louisiana, Orleans.

January 2, 1934

Rehearing denied February 26, 1934.

M'Caleb & M'Caleb and E. Howard M'Caleb, Jr., all of New Orleans, for appellant.

Deutsch & Kerrigan & Burke, of New Orleans, for appellees.

OPINION

WESTERFIELD Judge.

Plaintiff was injured by contact with a motortruck owned by the Volunteers of America and driven by one of its employees. He brought this suit against the owner of the truck and against its liability insurance carrier, the National Casualty Company. The suit against the insurance company was dismissed upon an exception of no cause of action, whereupon the case as against the other defendant went to trial before a jury, with the result that a verdict was rendered and a judgment entered dismissing plaintiff's suit against this defendant also. Plaintiff has appealed.

Considering, first, the question of the liability of the defendant, the Volunteers of America, we find the facts to be that Paul Bougon, the plaintiff, a pedestrian, was injured on March 23, 1932, just after he had started to walk across North Rampart street at its intersection with Toulouse street, by being knocked down by a motortruck owned by the defendant, and, at the time of the accident, operated in its interest by one of its employees. During the course of the trial, evidence was submitted tending to show that the Volunteers of America was an institution entirely devoted to charitable purposes, and, there being no countervailing proof, the fact was established and conceded by opposing counsel. The learned judge, a quo, charged the jury to the effect that, under the laws of this state, charitable institutions are not liable for the torts of their servants and employees, and that, if they found from the evidence that defendant was a charitable institution, a verdict should be rendered in favor of defendant. It is evident, therefore, that the action of the jury and the approval of its verdict by the judge of the trial court rested upon the idea of exemption of charitable organizations from the effect of the torts of their employees.

The tort law of this state is stated with admirable succinctness in article 2315 of our Revised Civil Code as follows: "Every act whatever of man that causes damages to another, obliges him by whose fault it happened to repair it. (3)5C"

And in article 2320 of the Code the employer's liability for the conduct of his employees is thus stated: "Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed."

There are no exceptions mentioned in these articles, and we know of no law which has created any. In other states of the Union, where the common-law prevails, there has developed a jurisprudence based upon certain English cases, which have since been qualified and are not now followed in England, to the effect that charities are immune from liability upon the ground of public policy and other reasons, but particularly because of what is known as the "Trust Fund Doctrine." This doctrine, it is said, will not permit the diversion of funds held in trust for charitable uses, because it would result in the destruction of the charity, and, since it is beyond the power of the trustees to divert them directly, they cannot do so indirectly. 14 A. L. R. p. 572, note 1. The proponents of this doctrine fail to take into account the fact that a diversion of the trust funds may be as effectively accomplished by improvident contractual action as by negligent tortious conduct. The principle of respondeat superior announced in this state by article 2320, Rev. Civ. Code (supra), it is said, can find no application to charitable organizations because "such corporations do not come within the main reason for the rule of public policy which supports the doctrine of respondeat superior, because they derive no benefit from what their servants do in the sense of that personal and private gain, which is the real reason for the rule." 5 R. C. L. 376, and authorities cited under note 16.

Under the articles of our Civil Code and under the common law as well, an individual is bound to make compensation for his negligent acts causing damage to others, whether his motives be charitable or otherwise. He is also obliged to compensate the recipient of his charity for an injury received in its negligent performance. If he undertakes to act through others, his employees, the situation is not changed: "Qui facit per alium facit per se." Nor is the situation altered by the organization of a corporation for the carrying out of his purpose. 14 A. L. R. p. 573, verbo "Charities." However that may be, as we have said, in other jurisdictions, and, we now add, to some extent in this, the courts have held that a charitable institution is not liable for the torts of its servants. Noble v. Hahnemann Hospital of Rochester, 112 A.D. 663, 98 N.Y.S. 605; Fire Ins. Patrol v. Boyd, 120 Pa. 624, 15 A. 553, 1 L. R. A. 417, 6 Am. St. Rep. 745; Jackson v. Atlanta Goodwill Industries, 46 Ga.App. 425, 167 S.E. 702; Webb v. Vought et al., 127 Kan. 799, 275 P. 170; Jordan v. Touro Infirmary (La.App., Orleans Cir.) 123 So. 726; Thibodaux v. Sisters of Charity, 11 La.App. 423, 123 So. 466 (2d Cir.); Foye v. St. Francis Sanitarium, 2 La.App. 305 (2d Cir.).

The Louisiana cases, beginning with Jordan v. Touro Infirmary, deal with the question of the right of a beneficiary of the charity to institute suit for damages based upon the torts of its servants. In the Jordan Case, the decision rests upon the trust fund doctrine of the common-law courts, and holds that a patient in a hospital cannot maintain an action for damages caused by the negligence of its employees-in that case a trained nurse-even though the patient was what is known as a "pay patient." In Foye v. St. Francis Sanitarium it was held that the only obligations that a charitable institution owes to the public, whether "pay" or "charity" patients, is to select with care the persons who act as nurses, a doctrine somewhat more extensive than that announced in the Jordan Case. In Thibodaux v. Sisters of Charity [11 La.App. 423, 123 So. 466] the Court of Appeal of the Second Circuit, after citing the Jordan and Foye Cases, held that charities were not responsible to their beneficiaries, even though they were "pay" patients.

But there is no case in Louisiana which has extended the doctrine of the Jordan Case so as to grant immunity to charitable corporations for the torts of their employees causing injuries to third persons, and, while there are a number of other jurisdictions in which the "Trust Fund Doctrine" has been so extended, the clear weight of authority elsewhere is to the contrary. In 5 R. C. L. pp. 377-379, verbo "Charities," §§122 and 123, we read the following:

"It is true that many of the courts have declared generally that those administering a trust fund are not responsible for the torts of their agents, because damages for such torts cannot be paid from the trust fund. That statement was first made in an early case in the House of Lords of England, but was afterwards declared incorrect by the same tribunal. It has been constantly repeated in many jurisdictions and has been used as the basis of some discussions. But a rule that a charitable corporation is exempt from liability for the negligence of its servants, resulting in injuries to strangers, must rest upon the argument that the advantages reaped by the public from such trusts justify the exemption. If such an argument is sound, and its soundness is seriously doubted, it should be addressed to the legislative branch of government, for the courts have no power to create the exemption or declare an immunity.

"The proposition that trust funds cannot be used to compensate wrongs committed by an agent of the trustee is not a correct statement of the law, and the wisdom even of exempting a charitable institution from liability in tort to its beneficiaries is not entirely free from doubt. To extend this exemption so as to leave the institution free from responsibility to all persons is to place an institution above the law, which can be of advantage neither to the public nor, in any true sense, to the charity itself. Accordingly it is usually held that a charitable corporation is liable for the negligence of its servants where an injury is inflicted on a stranger. While the reason given for the exemption of a charitable corporation from liability for the negligence of its servants, that to allow a recovery would tend to thwart the purposes of the trust, may, with some degree of logic, be applicable where the injured person was at the time of the injury receiving the benefit of the charity, there is no ground upon which it may be held that the rights of those who are not beneficiaries of a trust can in any way be affected by the will of its founder. The rights of such persons are those created by general laws, and the duties of those administering the trust to respect those rights are also created by general laws. The doctrine that the will of an individual shall exempt either persons or property from the operation of general laws is inconsistent with the fundamental idea of government. It permits the will of the subject to nullify the will of the people. Nor is there any ground upon which a court can hold that effect can be given to that will when it relates to property devised or conveyed for the purpose of a charitable trust. The conclusion is that corporations administering a charitable trust, like all other corporations, are subject to the general laws of the land, and cannot, therefore, claim exemption from responsibility for the torts of their...