Carr v. Northern P. Beneficial Ass'n

• Decision Date: 07 January 1924
• Docket Number: 17591.
• Citation: 221 P. 979,128 Wash. 40
• Court: Washington Supreme Court
• Parties: CARR v. NORTHERN PAC. BENEFICIAL ASS'N et al.

221 P. 979

128 Wash. 40

CARR v. NORTHERN PAC. BENEFICIAL ASS'N et al.

No. 17591.

Supreme Court of Washington, En Banc.

January 7, 1924

Appeal from Superior Court, Franklin County; Truax, Judge.

Action by J. E. Carr against the Northern Pacific Beneficial Association, G. H. McMinnee as manager, and Dr. P. A Remington as chief surgeon. Judgment for defendants on demurrer, and plaintiff appeals. Affirmed.

Holcomb Tolman, and Pemberton, JJ., dissenting.

Chas W. Johnson, of Seattle, for appellant.

Cannon & McKevitt, of Spokane, and Edward A. Davis, of Pasco, for respondents.

PARKER J.

The plaintiff, Carr, commenced this action in the superior court for Franklin county seeking recovery of damages from the defendant beneficial association alleged to have resulted to him from the negligence of incompetent physicians and surgeons of the association in treating him at its hospital while a member of the association, and from the negligence of the association in selecting such incompetent physicians and surgeons and assigning to them the duty of treating him while in its hospital. The plaintiff's complaint was demurred to by the association upon the sole ground 'that the facts therein set out are not sufficient to constitute a cause of action.' This demurrer was sustained by the trial court. Upon the plaintiff electing to stand upon his complaint and not plead further, a judgment of dismissal was rendered against him accordingly, from which he has appealed to this court.

The allegations of appellant's complaint controlling of his claimed rights here drawn in question are sufficiently noticed as follows:

'That at all times herein mentioned, the defendant Northern Pacific Beneficial Association was, and now is, a voluntary association, organized for the purpose of furnishing medical, surgical, and hospital attention to employees of the Northern Pacific Railway Company, with hospital and headquarters at Tacoma, Wash.; that members of the defendant are too numerous to be made parties defendant to this action, and therefore action is commenced against G. H. McMinnee, P. A. Remington, as officers and agents of the said association and the members thereof.

'That up to and including the 20th day of July, 1920, the plaintiff was a member of the defendant association. * * *

'That commencing in October, 1908, and continuing to January, 1913, on which last-mentioned date the plaintiff was totally incapacitated through the act of the defendant, the plaintiff contributed monthly such sum as was assessed against this plaintiff, which sum was collected and withheld by the Northern Pacific Railway Company, a corporation, for whom the plaintiff was employed, such collection by the said railway company as agent for the said association and by the said railway company paid to the said association; that in return for said payment, the defendant association agreed with the plaintiff that it would furnish all necessary and proper medical and surgical aid and hospital services.

'That in January, 1913, the plaintiff became sick with appendicitis and a soas abscess, and pursuant to said agreement, the said plaintiff was taken to the hospital of the defendant, at Tacoma, Wash., there to be operated upon, or to be treated for said ailment. That upon arriving at the hospital at Tacoma as aforesaid, the plaintiff was operated upon by one of the physicians and surgeons therein employed, to wit, Dr. S.W. Mowers, and was then provided with nurses and attendants by the defendants as aforesaid; that the defendant association was negligent and did not use due care in the selection of the surgeons and physicians assigned to the treatment of the plaintiff. That is, Dr. S.W. Mowers, the surgeon, was not in sympathy with the defendants' method of doing business and providing medical and surgical aid, as the defendant was doing and was therefore negligent in the treatment of this plaintiff, and the defendant did not use ordinary care in making the selection of the said S.W. Mowers as surgeon to treat the plaintiff, as a result of which' [then follow allegations of Dr. Mowers' negligence in treating appellant].

'That after the operation as aforesaid the defendant furnished a physician, one Eisengraver, to care for and dress the plaintiff's wound; that said Eisengraver was notoriously negligent and incompetent, and the defendant failed to use ordinary care in the selection of Eisengraver as aforesaid, as a result of which' [then follow allegations of Dr. Eisengraver's negligence in treating appellant and allegations of further negligent treatment of appellant by the association's physicians and surgeons up to March, 1918; and also allegation of the amount of damages suffered by appellant from all of such alleged negligent selection of incompetent physicians and surgeons and their treatment of appellant].

Counsel for appellant concedes in his brief that the association is not liable in damages for the mere negligent treatment of appellant by its physicians and surgeons, in view of the fact that the association is a voluntary association organized exclusively for the medical and surgical treatment of its own members, of which appellant is one. This is made clear by the language of appellant's counsel in his brief as follows:

'In our complaint we are not seeking to hold the defendant association liable for the malpractice or negligence of its servants, but simply to hold the defendant liable for negligence and failure to use due care in selecting servants.'

There is invoked in behalf of appellant the general rule as stated in the text of 3 Wharton & Stille's Medical Jurisprudence, § 507, as follows:

'A public charitable institution such as a hospital deriving its funds from a public or private charity, and conducting its affairs for the public purpose of administering to the sick without compensation, is under duty to persons admitted to it to use due and reasonable care in the selection of proper agents and physicians.'

--citing also, to decision of this court in Richardson v. Carbon Hill Coal Co., 10 Wash. 648, 655, 39 P. 95, 98, wherein Judge Anders, considering a claim of...