O'Connor v. Boulder Colorado Sanitarium Ass'n

• Decision Date: 27 November 1939
• Docket Number: 14510.
• Citation: 105 Colo. 259,96 P.2d 835
• Parties: O'CONNOR v. BOULDER COLORADO SANITARIUM ASS'N.
• Court: Colorado Supreme Court

96 P.2d 835

105 Colo. 259

O'CONNOR v. BOULDER COLORADO SANITARIUM ASS'N.

No. 14510.

Supreme Court of Colorado, En Banc.

November 27, 1939

Error to District Court, City and County of Denver; Claude C Coffin, Judge.

Action by Vivian O'Connor against the Boulder Colorado Sanitarium Association, a corporation, for damages on account of alleged negligence in the care and medical treatment of plaintiff while in defendant's sanitarium as a paying patient. Judgment for defendant, and plaintiff brings error.

Judgment reversed and cause remanded with directions and for further proceedings consistent with opinion.

Carl W Berueffy, of Boulder, for plaintiff in error.

Twitchell Clark & Eckley, of Denver, for defendant in error.

OTTO BOCK, Justice.

In this action the trial court granted defendant in error immunity from tort liability because of its strictly charitable character. We shall refer to the parties as they appeared below.

Plaintiff brought an action against defendant for damages for alleged negligence in the care and medical treatment of herself while in its sanitarium as a paying patient. Defendant answered first, admitting certain allegations and generally denying others, including negligence; second, alleging nonliability by reason of its being a charitable institution. Plaintiff replied, admitting that defendant is a nonprofit corporation and that all its funds are used for charitable purposes. Further replying, she alleged that a judgment against the institution would in no way affect the association's charitable trust fund, for the reason that it had, for a money consideration, secured a contract of insurance indemnifying it against all liability for the torts of its agents in the conduct of the hospital business. The terms of the alleged insurance contract are not set out. To this replication demurrers were interposed and sustained, and plaintiff electing to stand on her pleadings, the court entered judgment dismissing the action at her costs. Plaintiff seeks a reversal of this judgment, and assigns error, contending that the replication states, and did state, facts sufficient to constitute a reply to the second and affirmative answer of defendant. We have Before us for determination, therefore, the specific question of whether a charitable institution is immune from tort liability, even though its trust funds would not be jeopardized by reason of a judgment entered against it, payment of which would be limited to funds derived from indemnity insurance held by it.

The authorities on the subject of liability of charitable institutions for torts are many and extremely divergent. 14 C.J.S., Charities, page 545, § 75. In St. Mary's Academy v. Solomon, 77 Colo. 463, 238 P. 22, 42 A.L.R 964, we for the first time had Before us the question of the liability of a charitable institution for the tortious acts of its agents. The action grew out of the negligent operation of an automobile by an agent of the academy. In reviewing the judgment we committed ourselves to what may be denominated the trust-fund doctrine, and held that the trust-fund rule does not bar an action against a charitable institution based on the tort of its agents, but that it does prohibit the levying of an execution under a judgment procured against it in such a suit on any property which is a part of the charitable trust. In that case there is some dicta to the effect that if it appeared from the evidence that the defendant...