Currier v. Trustees of Dartmouth College

• Decision Date: 29 May 1902
• Docket Number: 380.
• Citation: 117 F. 44
• Parties: CURRIER v. TRUSTEES OF DARTMOUTH COLLEGE.
• Court: U.S. Court of Appeals — First Circuit

117 F. 44

CURRIER v. TRUSTEES OF DARTMOUTH COLLEGE.

No. 380.

United States Court of Appeals, First Circuit.

May 29, 1902

Edward C. Niles and Edmund S. Spalding (Harry G. Sargent, on the brief), for plaintiff i, error.

Frank S. Streeter, for defendant in error.

For opinion below, see 105 F. 886.

Before COLT and PUTNAM, Circuit Judges, and WEBB, District Judge.

PUTNAM Circuit Judge.

In Powers v. Hospital, 47 C.C.A. 122, 1/9 F. 294, this court held that that action, based on the alleged negligence of a nurse employed by the hospital, could not be maintained in behalf of one of its patients. The case now before us the defendant claims is within the principle of our former decision. The plaintiff undertakes to distinguish the two on the alleged ground that in Powers v. Hospital there was no negligence on the part of the defendant in employing the nurse, while in the case at bar there was negligence in employing the person through whose want of skill the plaintiff maintains the injuries arose.

The plaintiff alleges as the basis of his suit that at the time of the injury out of which the action arose he was 'a student in the institution conducted by the defendant corporation,'-- that is, its college,-- 'having contracted with the defendant to furnish him a collegiate education, and a safe and suitable lodging place, and safe and suitable grounds, buildings, and appliances for obtaining healthful recreation, in consideration of certain payments of money made to the defendant by the plaintiff. ' These allegations necessarily involve the proposition that the plaintiff suit grows out of his relation as a collegiate student. In this respect, although there is a subsequent departure in the declaration, yet it is clearly so framed that the action would not lie unless the plaintiff proved a breach of an alleged contract to furnish him with a collegiate education, with a safe and suitable lodging place and with safe and suitable grounds, buildings, and appliances for healthful recreation. In other words, the declaration lays no basis for a suit unless there was a breach of the duties the defendant owed the plaintiff as its collegiate student.

The case went to a jury, and after it had been closed on both sides, the defendant moved that the court direct a verdict in its favor on several grounds, which were stated at length in its motion. We need specify only four. One was that on all the evidence the jury could not properly find a verdict for the plaintiff. Another was that there was no evidence that the injury was caused by the violation of any legal duty which the defendant owed the plaintiff. Another was that the plaintiff was present at the place of the injury without invitation, and by mere permission, and for the gratification of private curiosity: and that under such circumstances the defendant was under no obligation to exercise ordinary care for his protection, and was merely holden to refrain from willful or wanton injury, while there was no evidence that the injury was willfully or wantonly inflicted. Several other grounds stated were substantially to one effect, namely, that the defendant is an eleemosynary corporation, 'organized and managed solely for the administration of a public charity, and doing no business for private gain, and that therefore, it 'is not liable for negligence in the distribution of its charity to the person who accepts its bounty. ' The court directed a verdict for the defendant which the jury returned in the following form: 'By direction, and under the order of court, the jury find that the defendant college is not guilty in the manner and form as the plaintiff has declared. ' To all this the plaintiff seasonably excepted, and his exceptions were allowed. The learned judge, in the order allowing the exceptions, stated as follows:

'Bill of exceptions allowed, and, as the defendant desires to have all the evidence printed, to the end that it may present the question whether there is any evidence of negligence in warranting a verdict for the plaintiff, and as I do not understand that I ruled upon that question, or that the defendant has an exception, it is ordered that the defendant pay the increased expense of recording, copying, and print, viz., one-half.'

It is to be noted that the defendant, in it, motion for a verdict in its behalf, did not, in terms, call the attention of the court to that portion of the pleadings which we have extracted; but the proposition which this makes the necessary basis of the suit was sufficiently brought to its attention by that part of the motion which insisted that the plaintiff was present at the place of injury without invitation.

This brings us at once to a proposition which we must consider at the outset. Although the circuit court apparently assumed that the only question which came up on the writ of error was whether the character of the defendant as an eleemosynary institution would defeat the action, and, although the plaintiff maintains that that is the only issue on appeal, yet the defendant claims that all the defenses brought out in its motion are before us, and that it is entitled to hold its verdict provided either of them was well laid. It is true that this court does not hesitate to seize upon anything in the nature of a waiver to bar us from adjudicating any question not considered in the court below, and that it refuses to broaden the case when so doing might lead to injustice. Therefore, with reference to a motion to direct a verdict, if the party in whose behalf it is directed specifically limits the grounds of his motion, he is ordinarily held, on appeal, to have waived everything else, unless it is clear that the new grounds on which the verdict is sought to be sustained on error could not have been in some way covered if they had been called to the attention of the adverse party at the time the motion was heard. In the present case there was no waiver, because, in the light of the explanation which we have made of the claim, made at the trial, that the plaintiff was present at the time of the injury without invitation, the propositions which we will have occasion to consider were seasonably brought to the attention of the court and the plaintiff. Therefore there is no reason why we should not apply the general rule that on a writ of error the only things before the appellate court are the verdict and the order directing it, while the reasons which operated on the mind of the court below are no part of the record.

We went over this matter in Whitney v. Railroad Co., 43 C.C.A. 19, 102 F. 850, 50 L.R.A. 615, and we there showed that such was the settled practice. Bolles v. Outing Co., 175 U.S. 262, 268, 20 Sup.Ct. 94, 44 L.Ed. 156 would be misleading on this point unless carefully examined. That case came up on exceptions on account of the exclusion of evidence. Under these circumstances the court held that the propositions raised before it by the defendant could not be considered, because it had sued out no writ of error. The court showed no intention of overruling or qualifying its prior decisions, which guided us in Whitney v. Railroad Co. Appeals are governed by different rules, for which the authorities cited in Bolles v. Outing Co., at page 268, 175 U.S., page 96, 20 Sup.St., 44 L.Ed. 156, furnish examples. Our position is precisely in harmony with the expressions in Peck v. Heurich, 167 U.S. 624, 629, 17 Sup.Ct. 927, ...