Danville Cmty. Hosp. Inc v. Thompson

• Decision Date: 03 September 1947
• Citation: 186 Va. 746,43 S.E.2d 882
• Court: Virginia Supreme Court
• Parties: DANVILLE COMMUNITY HOSPITAL, Inc. v. THOMPSON.

43 S.E.2d 882

186 Va. 746

DANVILLE COMMUNITY HOSPITAL, Inc.

v.THOMPSON.

Supreme Court of Appeals of Virginia.

Sept. 3, 1947.

Error to Corporation Court of City of Danville; Henry C. Leigh, Judge.

Action by notice of motion for judgment by Linda Thompson, an infant, against Danville Community Hospital, Inc., for a. burn suffered by plaintiff at time plaintiff was born in the defendant hospital. To review an adverse judgment, defendant brings error.

Judgment affirmed.

Before HUDGINS, GREGORY, EG-GLESTON, SPRATLEY, and BUCHANAN, JJ.

Meade & Talbott, of Danville, for plaintiff in error.

R. Paul Sanford and J. William Clement, both of Danville, for defendant in error.

BUCHANAN, Justice.

The plaintiff, Linda Thompson, an infant four and one-half years old, sued the defendant, Danville Community Hospital, Inc., for damages for a burn suffered by her on March 17, 1942, at the time she was born in the defendant hospital.

Her notice of motion alleged that in disregard of the duty of ordinary care owed to her, the defendant "negligently placed hot applications, or a lamp or lamps for the purpose of generating heat, on my left buttock and as a direct and proximate result thereof I sustained a bad burn and * * * a most disfiguring and permanent scar was left on my left buttock, which at times becomes irritated and as I have grown it has been a constant source of annoyance and discomfort to me."

The hospital defended on the ground that it was a charitable institution and owed to the plaintiff only the duty to exercise reasonable care in the employment of its nurses and other employees (Norfolk Protestant Hospital v. Plunkett, 162 Va. 151, 173 S.E. 363); that the burn resulted from treatment prescribed by the attending physician of plaintiff's mother, for whose negligence it was not liable; and that the defendant was not guilty of any negligence.

The issue was tried by a jury which returned a verdict for the plaintiff for $5,000. upon which the court entered judgment, and the defendant obtained this writ of error. The defendant makes five assignments of error which present three questions, viz., whether the defendant was a charitable institution; whether the rule of res ipsa loquitur was applicable, and whether the verdict was excessive.

We think it clear that the defendant was not a charitable institution. It was a stock company chartered in the usual way, with a maximum capital shock of $50,000, divid-ed into shares of $100 each. Its purposes are stated in its charter and include no suggestion of charitable objectives. The purposes stated were to buy and own real estate for hospital purposes and to operate a community hospital; to provide group hospital service to the residents of Danville and surrounding counties; to issue and sell stock certificates, providing for hospital service to the owner in addition to the regular attributes of stock certificates, and to sell contracts for hospital services.

Each share of stock entitled the owner to receive from the hospital annually a maximum of thirty days of hospital service without cost, subject to certain restrictions; and this, as stated, was in addition to the ordinary rights of stockholders. The right to receive dividends or additional benefits, was limited by a provision of the charter that:

"The earnings of the Corporation, if any, shall be reinvested for the benefit of the Corporation in any buildings, equipment, additional service to the stockholders, the creation of a reserve fund or funds, and in such other benefits to the Corporation as may be decided upon by the Board of Directors."

It is shown that there have been no profits or money dividends, that operation has been at a loss, and that in 1944 the city of Danville and some of the stockholders gave financial aid. But it is further shown that about fifty per centum of the approximately 450 stockholders have received hospital services by reason of their stock ownership and their accounts were charged against capital of the corporation. The hospital does not hold itself out as a charitable institution, but enters a charge against every patient and collects if it can. The trial judge asked the president of the corporation if this was not their method of operation:

"A man comes to the hospital with a broken leg. You take him in and enter a charge against him for your services. You try to get the money if you can; and if you can't get it, that is too bad. Doesn't that explain it?" The witness answered yes.

There have been charity patients, of course, in the sense that there have been patients unable or unwilling to pay their bills. But failure to make money or collect from some of the customers or patients is not sufficient to convert a private corporation into a charitable institution. Many corporations would be surprised to learn that such an experience produced such a result.

[2, 3] A hospital owned and operated by a corporation created by the voluntary agreement of private individuals, which issues stock investing its stockholders with the usual rights and, in addition, the valuable right to free hospital services, is managed and governed by officers and agents selected by the stockholders, and enters a charge against its patients for its services which it collects when it can, is certainly not a charitable institution and not entitled to the immunities generally accorded to such institutions.

"Briefly, the test which determines whether a hospital is charitable or otherwise is its purpose, that is, whether or not it is maintained for gain, profit, or advantage. * * * and the question as to its character may be determined not only from the powers and purposes as defined in its articles of incorporation or charter but also from the manner in which it is conducted, * * *." 14 C.J.S., Charities, § 2, pages 422, 423. And see 26 Am.Jur, Hospitals and Asylums, sec. 3, p. 588; Washingtonian Home of Chicago v. City of Chicago, 157 111. 414, 41 N.E. 893; Fowler v. Norways Sanatorium, 112 Ind.App. 347, 42 N.E.2d 415; Hamilton v. Corvallis General Hospital Ass'n, 146 Or. 168, 30 P.2d 9; Chap-in v. Holyoke Y.M.C.A, 165 Mass. 280, 42 N.E. 1130.

The defendant moved to strike out the evidence of the plaintiff at its conclusion and again at the conclusion of all the evidence. The court overruled those motions and gave to the jury instruction B, telling them that defendant was not an insurer of plaintiff's safety, but that the basis of the action was negligence; that the burden was on the plaintiff to prove that the defendant was guilty of negligence which was 'heproximate cause of the accident; that if it was just as probable that the defendant was not negligent as that it was, then the jury should find for the defendant. This was followed by instruction B¹/₂which is as follows:

"But where a person received injuries from some means or instrumentality in the control of the defendant which does not ordinarily occur where reasonable care is used by the defendant, and the injury occurs under such circumstances that the defendant should have the means of determining how it occurred and the cause thereof and the plaintiff does not have this information, then, the jury may infer that the injury was due to some negligence of the defendant. They are not obliged to draw such inference, but may do so. And in the absence of evidence satisfactorily showing freedom from negligence may find a verdict for the plaintiff. But on the whole case the jury must believe from the preponderance of the evidence that the injury was due to the negligence of the defendant, before they can find a verdict for the plaintiff."

The defendant objected to the instruction on the ground that the evidence was not peculiarly within the possession of the defendant, and that the injury might be attributed to one of two causes, for one of which the defendant was not responsible. The giving of that instruction is the basis of the main assignment of error, and its proper disposition requires a statement of the evidence.

The witnesses for the plaintiff were her father and mother and Dr. McMann, an obstetrics specialist employed by the father to attend the mother at the birth of the child. The mother was admitted to the hospital March 14, 1942, and the baby was born during the night of March 17. It was a hard birth, but the baby was normal and without any injuries. Dr. McMann explained that it was the practice to treat the baby in the delivery room and then it was taken by a nurse to the nursery and there bathed, weighed and put to bed. It would be inspected frequently if there was any condition to warrant it, but he did not think there was any such condition in this case. The next day Dr. McMann was told by the nursery nurse that the baby had a blister. Upon examination he found a burn on the baby's thigh about as big as a silver dollar, which in his opinion was caused by a hot water bottle. He said it was a very common thing in a hospital to wrap up one or two hot water bottles and put them on either side of the baby to get the proper heat, and if that was done in a proper way there would be no burn.

On cross-examination Dr. McMann stated that at birth the baby had a blue tinge, and very likely it was given oxygen, and this baby could have been put in a resus-citator bassinet for that purpose. This is a sort of basket with a metal grill on the bottom which is covered with blankets, and beneath the grill, two or three inches from it, are four or six electric light bulbs operated by a switch on each side. Its purpose is to provide a warm place for the baby. Dr. McMann was in the delivery room until Mrs. Thompson was moved to her room, which was not more than half an hour from the time of delivery, and it was possible, he said, for the baby to have been in the bassinet for that period, and then taken out immediately by the nurse to the nursery without any order from him. He did not think it was reasonably possible that the blister could have been caused several hours before ...