Duncan v. Nebraska Sanitarium & Benevolent Association

• Decision Date: 18 October 1912
• Docket Number: 17,086
• Parties: ROBERT B. DUNCAN, ADMINISTRATOR, APPELLEE, v. NEBRASKA SANITARIUM & BENEVOLENT ASSOCIATION, APPELLANT
• Court: Nebraska Supreme Court

137 N.W. 1120

92 Neb. 162

ROBERT B. DUNCAN, ADMINISTRATOR, APPELLEE, v. NEBRASKA SANITARIUM & BENEVOLENT ASSOCIATION, APPELLANT

No. 17,086

Supreme Court of Nebraska

October 18, 1912

APPEAL from the district court for Lancaster county: LINCOLN FROST JUDGE. Reversed.

REVERSED.

John M Stewart and T. F. A. Williams, for appellant.

Charles O. Whedon and C. P. Peterson, contra.

ROSE J. LETTON, J., concurring in the result.

OPINION

ROSE, J.

When Sadie Duncan was occupying a room in defendant's hospital, she committed suicide in absence of a nurse or other attendant, and this is an action by her husband as administrator of her estate to recover from defendant damages for negligently causing her death. Plaintiff alleges that, in consideration of $ 45 a week, she was accepted as an inmate under a verbal agreement by defendant to give her necessary medical attention and to furnish a trained nurse to be in constant attendance upon her. In the petition it is also alleged that her death was due solely to the wrongful act, neglect, default and carelessness of defendant in leaving her alone and unattended. The right of plaintiff to a recovery was resisted on the ground that defendant is exempt from liability to its inmates for the negligence of nurses and other attendants, because it is a charitable institution, conducted solely for philanthropic and benevolent purposes. From a judgment in favor of plaintiff for $ 3,275, defendant has appealed.

After giving a number of instructions the trial court charged the jury as follows: "The undisputed evidence further shows that the defendant is a charitable institution maintained for philanthropic and charitable and benevolent purposes, and in no manner directly or indirectly for private profit or dividend-paying to any one." This instruction was fully justified by the evidence, and was properly given. In stating the law applicable, however, the trial court said: "You are instructed that if you find from the evidence that said Sadie Duncan was in any sense a charitable patient, or, in other words, a beneficiary of any bounty at the hands of the defendant, and the amount paid does not make full pecuniary compensation for the services rendered, then the deceased's representative, the plaintiff herein, cannot recover, and your verdict must be for the defendant. On the other hand, if you find from the evidence that the deceased was received as a patient on full pay, full pecuniary compensation, and without being the recipient of any charity or bounty at the hands of the defendant, then the defendant would be liable for any negligence of its agents or servants which proximately contributed to the deceased's death."

This instruction is assailed as erroneous. It contains two propositions of law, and the first seems to be correct. It is a well-established doctrine that a charitable institution conducting a hospital solely for philanthropic and benevolent purposes is not liable to inmates for the negligence of nurses. Some courts say that one accepting the benefits of such a charity exempts his benefactor from liability for the negligent acts of servants. Others assert that non-liability is based on the ground that trust funds created for benevolent purposes should not be diverted therefrom to pay damages arising from the torts of servants. Exemption from liability is frequently sanctioned on the ground that public policy encourages the support and maintenance of charitable institutions and protects their funds from the maw of litigation. While there is a diversity of opinion as to the reasons for the rule, the doctrine itself is firmly established. Thornton v. Franklin Square House, 200 Mass. 465, 22 L. R. A. n. s. 486, 86 N.E. 909; Farrigan v. Pevear, 193 Mass. 147, 7 L. R. A. n. s. 481, 78 N.E. 855; Powers v. Massachusetts Homoeopathic Hospital, 101 F. 896, 65 L. R. A. 372; Downes v. Harper Hospital, 101 Mich. 555, 60 N.W. 42; Parks v. Northwestern University, 121 Ill.App. 512, 218 Ill. 381; Joel v. Woman's Hospital, 89 Hun (N.Y.) 73, 35 N.Y.S. 37; Ward v. St. Vincent's Hospital, 23 Misc. 91, 50 N.Y.S. 466; Conner v. Sisters of Poor, 7 Ohio N.P. 514, 10 Ohio Dec. 86; Abston v. Waldon Academy, 118 Tenn. 24, 102 S.W. 351; Adams v. University Hospital, 122 Mo.App. 675, 99 S.W. 453; Hearns v. Waterbury Hospital, 66 Conn. 98, 31 L. R. A. 224, 33 A. 595. In applying the law thus established the trial court was right.

The second proposition stated in the instruction last quoted however, is erroneous. It permits the jury to find in favor of plaintiff, if full compensation was paid to defendant. The uncontradicted evidence is that the agreed rate as pleaded by plaintiff was not paid. On the contrary, a reduced rate was paid and accepted. Even if full compensation had been paid, it would not necessarily follow that the patient received no benefit from charity. She occupied a room in a building maintained in part at least by donated funds intended for benevolent purposes. Necessary care, skill and food came from the same source. On the record as made, the jury should not have been permitted to find that the inmate had received no benefit from charity. A charitable institution conducting a hospital does not, by accepting compensation from a patient who is able to pay for room, board and care, incur liability to such patient for the negligence of nurses. Jensen v. Maine Eye & Ear Infirmary, 107 Me. 408, 33 L. R. A. n. s. 141, 78 A. 898; Cunningham v. The Sheltering Arms, 135 A.D. 178, 119 N.Y.S. 1033; Gable v. Sisters of St. Francis, 227 Pa. 254, 75 A. 1087; McDonald v. Massachusetts General Hospital, 120 Mass. 432; Powers v. Massachusetts Homoeopathic Hospital, 101 F. 896; 65 L. R. A. 372; Downes v. Harper Hospital, 101 Mich. 555, 60 N.W. 42; Parks...