Emery v. Jewish Hospital Ass'n

• Citation: 193 Ky. 400,236 S.W. 577
• Parties: EMERY v. JEWISH HOSPITAL ASS'N.
• Decision Date: 16 December 1921
• Court: Court of Appeals of Kentucky

236 S.W. 577

193 Ky. 400

EMERY v. JEWISH HOSPITAL ASS'N.

Court of Appeals of Kentucky.

December 16, 1921

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

Action by Andrew Emery against the Jewish Hospital Association. Demurrers to answer overruled, and plaintiff appeals. Affirmed.

Thomas J., dissenting.

R Ruthenburg and E. D. Bennett, both of Louisville, for appellant.

Selligman & Selligman, of Louisville, for appellee.

HURT C.J.

The appellant, Andrew Emery, who sues by his guardian, avers in his petition that he is only 15 years of age, and while of that age was, in violation of the provisions of section 331a, Ky. Stats., employed for wages by the appellee to operate an elevator on its premises, and while so engaged was, through the negligence of appellee, its servants, agents, and employees, caused to suffer a personal injury in the loss of a toe to his damage, in the sum of $3,000. While the petition avers that the appellee is a corporation engaged in operating a hospital, it contains no averment that it is a charity.

The appellee answered in four paragraphs. The first was a traverse of the allegations of the petition, except that alleging that appellant was an employee of appellee. The averment that he was only 15 years of age was denied, and it was affirmatively alleged that he was over the age of 16 years at the time of his employment and injury.

The second paragraph contained only one averment, and that was that the appellant was, at the time of employment and injury, above the age of 16 years. This paragraph, containing the single allegation, presented no defense to the petition, except to the extent that the unlawful employment of a person under the age of 16 years, in operating an elevator, should be held to be negligence sufficient to support the action, but was really surplusage, as the issue as to appellant's age was already made in the first paragraph.

The third paragraph is a plea of contributory negligence, without any averment that the appellant was above the age of 16 years, or denial that he was under that age.

The fourth paragraph contained no denial that appellant was under the age of 16 years, and presents for a defense the allegations that the appellee is a charitable institution and immune from a claim for damages on account of negligence of its servants, agents, and employees, or negligence to be attributed to it. It is alleged that it is a corporation duly organized and existing under sections 879, 880, 881, and 882, Ky. Stats., providing for the organization and incorporation of religious, educational, and charitable institutions; that the principal object and purpose for which it was formed, and for which its existence is continued, was and is to found and maintain a hospital for the poor and needy sick; its officers and trustees receive no salaries; its funds arise from gifts, donations, and contributions by individuals, who make same for the purpose that they shall be held by the trustees and devoted exclusively to purely charitable uses in the conduct of its hospital; and that every sum received is held by the appellee as a trustee and applied to those charitable uses and no other. The ninth section of its articles of incorporation, which is made a part of the answer, provides:

"No person shall ever derive private pecuniary profit from the operations of this association."

The trustees are elected by the persons who contribute to providing the funds for the operations of the hospital.

The appellant offered a demurrer to each of the two last paragraphs of the answer. The court held that each of them presented a complete defense to the matters pleaded in the petition, and hence overruled each of the demurrers, and, appellant declining to further plead, the petition was dismissed, and appellant has appealed.

(a) It is readily apparent that the third paragraph which presents the defense of contributory negligence is not a complete defense to the allegations of the petition, since the allegations in the petition fail to show that the appellee is a charitable institution, and contributory negligence is not a defense where the employment is unlawful, as it would be if the appellant was under the age of 16 years, as alleged in the petition. Casperson v. Michaels, by, etc., 142 Ky. 314, 134 S.W. 200; Smith's Adm'r v. National Coal & Iron Co., 135 Ky. 671, 117 S.W. 280; Louisville, H. & St. L. Ry. Co. v. Lyons, 155 Ky. 396, 159 S.W. 971, 48 L.R.A. (N. S.) 667; Higgins Mfg. Co. v. Griesinger's Adm'r, 145 Ky. 1, 139 S.W. 1059; Stearns Coal & Lumber Co. v. Tuggle, etc., 156 Ky. 714, 161 S.W. 1112; Carter Coal Co. v. Love, 173 Ky. 49, 190 S.W. 481.

(b) The fourth paragraph was the one upon which the action of the trial court was chiefly rested, and, if it presents a complete defense to the cause of action set out in the petition, the judgment must be affirmed. There is no precedent in this jurisdiction upon which the rights of the parties having such relations to each other as those in this record can be appealed to for our guidance. There has been no adjudication, so far as our research has extended, in this jurisdiction, involving the right of an employee of a charitable institution, which is not conducted by the state, county, or municipality, to recover damages against it for a personal injury incurred through the negligence of the officers, servants, agents, and employees of the institution. It seems that there would be no other way for a claim to be made against such an institution, since its affairs must all be conducted by its servants and agents, although there are some cases which hold that there are certain nondelegable duties which the corporation in itself must see to; but it is impossible to see how such a corporation could act, except through its managers, servants and employees. In Cook v. Norton Memorial Infirmary, 180 Ky. 330, 202 S.W. 874, L.R.A. 1918E, 647, recently decided, a patient in that institution was denied damages for torts suffered from the negligence of the attendants and servants. The institution was similar to the appellee here, in that it was conducted by private persons, and was in no sense a governmental agency; but the complainant was a patient, and not an employee, and the courts in all the jurisdictions in this country, except possibly two or three, deny damages to a patient for torts suffered in such an institution, on account of the negligence of its servants. In Williamson v. Louisville Industrial School of Reform, 95 Ky. 251, 24 S.W. 1065, 15 Ky. Law Rep. 629, 23 L.R.A. 200, 44 Am.St.Rep. 243, an inmate, who was a beneficiary of the institution, sought damages against it, because of a tort inflicted by the malicious act of an employee; but the right was denied upon the ground that the institution was supported by taxation and state aid, and was an agency of the government for the reformation of delinquent children. In Ketterer's Adm'r v. State Board of Control et al., 131 Ky. 287, 115 S.W. 200, 20 L.R.A. (N. S.) 274, the action was for maltreatment of an inmate, resulting in his death, by the servants of the institution. The institution was the Eastern Kentucky Asylum for the Insane, which is conducted, maintained, and controlled by the state government. The recovery was denied, upon the ground that the policy of the law made both the state and the officials of such institution immune from damages on account of malicious or negligent acts of the employees. The officials here referred to were the members of the state board of control and the superintendent of the asylum; the reason truly being that the institution was an arm of the government and performing a governmental duty. In Leavell v. Western Ky. Asylum for the Insane, 122 Ky. 213, 91 S.W. 671, 28 Ky. Law Rep. 1129, 4 L.R.A. (N. S.) 269, 12 Ann.Cas. 827, an employee sued the institution and sought damages because of a personal injury suffered on account of the act of an irresponsible lunatic, in starting certain machinery in motion in the laundry of the institution. The lunatic was an inmate, and the servants in charge of the asylum permitted the lunatic to work in the laundry. The claim of damages was denied upon the grounds that the asylum was a governmental agency, the rule of respondeat superior did not apply, and also that the funds of the institution were held upon trust, which could not be violated. The first of the grounds was, however, amply sufficient, and there doubtless it should have been rested. In I. C. R. R. Co. v. Buchanan, 126 Ky. 288, 103 S.W. 272, 31 Ky. Law Rep. 722, 11 L.R.A. (N. S.) 711, it was held that, where a railroad company set up a hospital for its employees, which was supported by certain contributions of the employees, the company having the selection of the surgeons, but deriving no pecuniary profits from the hospital, the company was not responsible to an employee who was a patient therein for the negligent conduct of the surgeon, but was responsible for the exercise of due care in their selection. It is apprehended, however, that the relationship of the railroad company to its employees, and the fact that the patients were limited to the employees of the company may have been the ground upon which the limited liability was rested, and the further ground that a railroad company is not a charity.

The cited cases of Williamson v. Louisville Industrial School of Reform, supra, Ketterer's Adm'r v. State Board of Control et al., supra, Leavell v. Western Ky. Asylum, etc. supra, and I. C. R. R. Co. v. Buchanan, supra, shed but a dim light upon the question involved here, and the facts of the three first named and the result in each is but in line with the opinions of courts in many jurisdictions, and where the institutions...