Deming Ladies' Hospital Ass'n v. Price

• Decision Date: 05 November 1921
• Docket Number: 5866.
• Citation: 276 F. 668
• Parties: DEMING LADIES' HOSPITAL ASS'N v. PRICE.
• Court: U.S. Court of Appeals — Eighth Circuit

276 F. 668

DEMING LADIES' HOSPITAL ASS'N v. PRICE.

No. 5866.

United States Court of Appeals, Eighth Circuit.

November 5, 1921

A. B Renehan, of Santa Fe, N.M. (Renehan & Gilbert, of Santa Fe N.M., and R. F. Hamilton, of Deming, N.M., on the brief), for plaintiff in error.

H. B Jamison, of Albuquerque, N.M., for defendant in error.

Before CARLAND, Circuit Judge, and YOUMANS and JOHNSON, District judges.

YOUMANS District Judge.

The complaint of defendant in error in the court below set out three causes of action for personal injury alleged to have been caused by the negligence of the plaintiff in error. The case went to the jury on the first cause of action. The allegations of negligence are as follows:

'That said plaintiff, on said March 6, was operated upon in said hospital for appendicitis, and during such operation was put under the influence of an anaesthetic, and that after said operation said plaintiff was taken by agents of said association from the operating room where said operation had been performed, and was taken to a room in said hospital, still under the influence of said anaesthetic and totally unconscious, and that while under the influence of said anaesthetic the said Deming Ladies' Hospital Association, through one of its agents, a certain Miss Schilling, whose first name is to the plaintiff unknown, negligently caused and permitted certain metal hot water vessels, which vessels contained water at an exceedingly high temperature, to be placed against the legs and feet of this plaintiff while she was still under the influence of said anaesthetic and totally unconscious, and thereafter permitted said metal hot water vessels to remain in proximity to and against the legs and feet of said plaintiff for a long time, at all of which times said defendant, by said Miss Schilling, knew that said vessels were, in such a position, dangerous to the life and limbs of said plaintiff.

'That by reason of said acts said plaintiff's legs were frightfully roasted and burned, and that thereby she has suffered continually since said time excruciating mental and physical anguish and torture, and that said act has caused permanent injuries to her legs and feet, and that even now she is unable to walk without the aid of a crutch, and that said injuries have caused a severe permanent shock to her nervous system, all of which is to the damage of the plaintiff in the sum of $20,000.'

The answer sets up two defenses: (a) That plaintiff in error was a charitable association; and (b) denies that Miss Schilling was an agent or employe of the hospital association. The court ruled that the fact that the hospital was a charitable association was not a defense. As the case went to the jury, the issue was whether Miss Schilling was an agent or employe of the hospital, and, if so, whether she had been negligent.

The assignments of error may be grouped under four heads:

(1) The refusal of the court to instruct the jury that the hospital was not liable because it was a charitable institution.

(2) Because the court admitted incompetent testimony to prove that Miss Schilling was an agent and employe of the hospital.

(3) That the court erred in refusing to instruct the jury that the testimony was insufficient to show that Miss Schilling was an agent or employe of the hospital.

(4) The refusal of the court to instruct the jury that the agency of Miss Schilling could not be determined by her statements or her conduct.

The defendant in error, in her reply to the answer of the plaintiff in error, admitted that the hospital association was a charitable corporation. At the conclusion of the plaintiff's testimony the attorney for the hospital association offered in evidence its articles of incorporation. This was objected to by the attorney for the plaintiff on the ground that it was admitted by the pleadings that the hospital association was a charitable association. Testimony was introduced by the plaintiff showing that the hospital received pay from such patients as were able to pay, and that particularly it received pay from the plaintiff. The court denied the request of the hospital association to instruct the jury to return a verdict for it, upon the ground that it was not liable by reason of the fact that it was charitable corporation.

The refusal of the court to so instruct was excepted to, and the action of the court is assigned as error. In the case of Union Pacific Railroad Co. v. Artist, 60 F. 365-368, in an opinion by Judge Sanborn, the following rule is laid down:

'The rule is that those who furnish hospital accommodations and medical attendance, not for the purpose of making profit thereby, but out of charity, or in the course of the administration of a charitable enterprise, are not liable for the malpractice of the physicians or the negligence of the attendants they employ, but are responsible only for their own want of ordinary care in selecting them.'

The same rule is laid down in the case of Powers v. Massachusetts Homeopathic Hospital, 109 F. 294, 47 C.C.A. 122, 65 L.R.A. 372, in the Circuit Court of Appeals for the First Circuit; also in the case of Paterlini v. Memorial Hospital Association of Monongahela City, Pa., et al., 247 F. 639, 160 C.C.A. 49, from the Circuit Court of Appeals of the Third Circuit. In the last case a petition for certiorari was denied by the Supreme Court. 246 U.S. 665, 38 Sup.Ct. 334, 62 L.Ed. 929. The same rule is recognized in the following cases: Arkansas Midland R. Co. v. Pearson, 98 Ark. 399, 135 S.W. 917, 34 L.R.A. (N.S.) 317; Thomas v. German General Benevolent Society, 168 Cal. 183, 141 P. 1186; Johnston v. City of Chicago, 258 Ill. 494, 101 N.E. 960, 45 L.R.A. (N.S.) 1167, Ann. Cas. 1914B, 339; University of Louisville v. Hammock, 127 Ky. 564, 106 S.W. 219, 14 L.R.A. (N.S.) 784, 128 Am.St.Rep. 355; Jensen v. Maine Eye & Ear Infirmary, 107 Me. 408, 78 A. 898, 33 L.R.A. (N.S.) 141; Thornton v. Franklin Square House, 200 Mass. 465, 86 N.E. 909, 22 L.R.A. (N.S.) 486; Duncan v. Nebraska Sanitarium & Benevolent Association, 92 Neb. 162, 137 N.W. 1120, 41 L.R.A. (N.S.) 973, Ann. Cas. 1913E, 1127; Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92, 52 L.R.A. (N.S.) 505, Ann. Cas. 1915C, 581; Barden v. Atlantic Coast Line Railway Co., 152 N.C. 318, 67 S.E. 971, 49 L.R.A. (N.S.) 801; Taylor v. Protestant Hospital Association, 85 Ohio St. 90, 96 N.E. 1089, 39 L.R.A. (N.S.) 427; Gable v. Sisters of St. Francis, 227 Pa. 254, 75 A. 1087, 136 Am.St.Rep. 879; Gitzhoffen v. Sisters of Holy Cross Hospital Association, 32 Utah, 46, 88 P. 691, 8 L.R.A. (N.S.) 1161; Wharton v. Warner, 75 Wash. 470, 135 P. 235. The same cases sustain the proposition that payment for services rendered in such a hospital by those that are able to pay does not constitute an exception to the rule.

The court erred in refusing...