Fair v. Atl. City Hosp..

• Citation: 50 A.2d 376
• Parties: FAIR et al. v. ATLANTIC CITY HOSPITAL.
• Decision Date: 20 December 1946
• Court: New Jersey Circuit Court

50 A.2d 376

FAIR et al.

v.ATLANTIC CITY HOSPITAL.

Circuit Court of New Jersey, Atlantic County.

Dec. 20, 1946.

Action by Rebecca A. Fair and by Frederick L. Fair, against the Atlantic City Hospital, a corporation of the State of New Jersey, to recover for injuries sustained by Rebecca A. Fair in a fall from a bed while a patient in a hospital operated by the defendant. On motion to strike the complaint.

Motion to strike granted.

David R. Brone, of Atlantic City, for plaintiffs.

Bolte, Miller & Repetto and Harry Miller, all of Atlantic City, for defendant.

BURLING, Circuit Court Judge.

This is a motion to strike the complaint. For the purpose of this motion, the defendant admits the truth of all facts well pleaded in the complaint and all inferences of fact which can be legitimately drawn therefrom. The sufficiency of the complaint, however, must be determined from the facts therein properly alleged from which a legal duty and the liability for the violation thereof are deduced.

From the complaint, it appears that the defendant is a charitable institution and that the plaintiff, Rebecca A. Fair, was admitted to the defendant's hospital for the purpose of receiving medical care and treatment and requested that she be placed in a private room in said hospital for treatment, medical and nursing attention commensurate with her needs, and alleges that the defendant failed to provide competent and efficient administrators, servants and agents to properly procure, inspect, provide, maintain and arrange suitable bedding, apparatus and equipment for the treatment of said plaintiff and for her comfort and convenience, and by reason of their incompetence and inefficiency which was known or should have been known to the defendant, placed faulty and improper equipment at the disposal of the plaintiff, namely a mattress too wide for the bed occupied by her and the arranging of a night cord for summoning a floor nurse in such a way that the cord could not be reached conveniently by the plaintiff, and as a result the plaintiff in using such faulty bedding, apparatus and equipment was caused to fall from the bed occupied by her and suffer the injuries therein set forth. She brings her action for resulting damages and the husband, Frederick L. Fair, sues per quod.

The objections to the complaint founded upon procedural defects subject to special demurrer are: 1-because the complaint is so framed as to embarrass and delay a fair trial, and 2-because the first count is duplicitous. They may be well grounded. However, the plaintiffs in their brief, assert: ‘The matter sub judice, however, is founded and sounds in tort. Whether the duty imposed by law upon the defendant springs from contract, be it express or implied, is of no moment. The gravamen of the cause of action is the duty which the law imposes upon the defendant, the breach of which results in a sanction enforcible by action.’

Accordingly immediate resort and disposition is made of the reason of the general demurrer, which reads as follows:

‘3. Because neither of said counts discloses a good and sufficient legal cause of action.

‘(a) In that the defendant is a charitable organization and the plaintiff, Rebecca A. Fair at the time alleged in the complaint was a beneficiary of the charity of the defendant.’

The question of liability of a charitable institution to respond in damages for negligence of its servants has been many times before the courts. Conflict exists among the courts of the several states concerning such liability. The subject has been the cause of prolific judicial opinion. It is one upon which there has been and is not only a conflict of decisions among the courts, but also a remarkable diversity of opinion among the courts which agree in their ultimate decision as to the reason or ground for so deciding. Andrews v. Young Men's Christian Association of Des Moines, 1939, 226 Iowa 374, 284 N.W. 186; President and Directors of Georgetown College v. Hughes, 1942, 76 U.S.App.D.C. 123, 130 F.2d 810; Gregory v. Salem General Hospital, 1944, 175 Or. 464, 153 P.2d 837.

There are two rules: One is known as the ‘absolute or unqualified’ immunity rule and the other is known as the ‘qualified’ immunity rule. Various reasons are given by the courts in support of the respective rules applied by them. Among those reasons are ‘public policy’ ‘trust fund theory’, ‘waiver theory’, ‘respondeat superior theory’. The subject is discussed in Fletcher's Cyc. Corp. (Permanent Edition) Volume 10 and among others in the following cases: Roosen v. Peter Bent Brigham Hospital, 235 Mass. 66, 126 N.E. 392, 14 A.L.R. 563; Vermillion v. Women's College of Due West, 1916, 104 S.C. 197, 88 S.E. 649; Schumacher v. Evangelical Deaconess Society of Wisconsin, 218 Wis. 169, 260 N.W. 476.

For some time the courts of England and of the United States have been in a state of divergency as to the reason for the rule. 14 C.J.S., Charities § 75, p. 544, et seq. Fletcher in his work on Corporations (Volume 10) Permanent Edition, para. 4923, p. 574, says: ‘Some courts, however, hold broadly that a patient in a hospital or other inmate of a charitable corporation cannot recover for the negligence of its employees or other servants on the ground that a charitable institution is not responsible to those who avail themselves of its benefits, for injury sustained through the negligence or torts of its managers, agents and servants, irrespective of its due care in the selection of such agents and servants, the immunity being predicated squarely on the ‘waiver’ or ‘assent theory’ or on the doctrine of public policy; this, of course, is equivalent to extending absolute, unqualified immunity to charitable corporations in so far as beneficiaries or inmates are concerned.'

And in par. 4927 at page 589, et seq., in the same volume, the author states: ‘Many of the courts base their judgments, exempting charitable corporations from liability for tort, upon the so-called doctrine of public policy and give as a reason that such institutions are inspired and supported by benevolenece and devote their assets and energies to the relief of the destitute, sick and needy, and that they should be encouraged and held exempt from liability for tort, and that to do otherwise would operate to discourage the charitable inclined, dissipate the assets of such institutions in damage suits, and ultimately destroy them.’

The case of first impression upon the subject to charitable exemption from tort liability relating to a hospital in New Jersey is D'Amato v. Orange Memorial Hospital, Err. & App., 1925, 101 N.J.L. 61, 65, 127 A. 340, 341. It was held: ‘In our opinion, public policy requires that a charitable institution...