Forrest v. Red Cross Hospital

• Decision Date: 19 February 1954
• Citation: 265 S.W.2d 80
• Parties: FORREST v. RED CROSS HOSPITAL, Inc.
• Court: United States State Supreme Court — District of Kentucky

Page 80

265 S.W.2d 80

FORREST v. RED CROSS HOSPITAL, Inc.

Court of Appeals of Kentucky.

Feb. 19, 1954.

Fred J. Karem, J. P. Karem, Louisville, for appellant.

John E. Tarrant, James W. Hendricks, Robert T. Burke, Jr., Louisville, amici curiae.

Brown, Eldred, Brown & Tachau, Louisville, for appellee.

SIMS, Chief Justice.

Clara Forrest, while a paying patient in the Red Cross Hospital for colored people in Louisville, allegedly became ill from eating food served her by employees of the institution. The brought this action seeking damages in the sum of $2,550. Her petition avers the food she ate 'was represented to be good, wholesome and fit for human consumption, when in fact it contained a foreign substance and was not fit for human consumption as warranted by defendant'. The answer, after denying the material averments of the petition, in a third paragraph pleaded the hospital 'is a non-stock and non-profit corporation under the laws of Kentucky, purely for charitable and educational purposes of the Negro race and no one derives any pecuniary profits from its operations.' A general demurrer was overruled to this paragraph of the answer, plaintiff declined to plead further, her petition was dismissed and she appealed.

In brief, as well as oral argument, plaintiff admits the long-established rule in this jurisdiction is that a charitable hospital, or other charitable institution, is not liable to a patient, although she is a paying patient, for a tort. An examination of our opinions shows that in 1894 this jurisdiction adopted the rule that a purely charitable institution, devoting its income entirely to its maintenance, is not liable for the tort of its agents, servants and employees. Williams v. Louisville Industrial School of Reform, 95 Ky. 251, 24 S.W. 1065, 23 L.R.A. 200; Illinois Cent. R. Co. v. Buchanan, 126 Ky. 288, 103 S.W. 272, 11 L.R.A.,N.S., 711; University of Louisville v. Hammock, 127 Ky. 564, 106 S.W. 219, 14 L.R.A.,N.S., 784; Cook v. John N. Norton Memorial Infirmary, 180 Ky. 331, 202 S.W. 874, L.R.A.1918E, 647; Emery v. Jewish Hosp. Ass'n, 193 Ky. 400, 236 S.W. 577; Pikeville Methodist Hospital v. Donahoo, 221 Ky. 538, 299 S.W. 159; Williams' Adm'x v. Church Home for Females and Inf. for Sick, 223 Ky. 355, 3 S.W.2d 753, 62 A.L.R. 721.

We will not take the time and space necessary to discuss these former opinions. It will suffice to say that the fundamental basis of the rule is stated in the Williams' opinion in 1894, and repeated with more particularity in Averback v. Y.M.C.A. of Covington, 1933, 250 Ky. 34, 61 S.W.2d 1066, where it was said:

'Immunity from liability is usually based on three grounds: (1) Public policy; (2) the assets or funds of the institution are impressed with a trust for charitable purposes, and may not be diverted to other use; (3) those who voluntarily enter the institution * * * impliedly waive all claim for injuries and assume the risk thereof; and we have held that all three theories of non-liability are based on sound logic.'

However, plaintiff attempts to avoid this rule by arguing that she is not suing for a tort but her action is based upon the breach of an implied contract that the food served her was warranted to be fit for human consumption. But in the Cook case, 180 Ky. 331, 202 S.W. 874, L.R.A.1918E, 647, we said that although the suit was based upon an employee's negligent violation of some duty imposed by either express or implied contract, the cause of action sounded in tort and is treated as a tort action by the courts. This same line of reasoning was advanced in Lovich v. Salvation Army, 81 Ohio App. 317, 75 N.E.2d 459.

We are next asked by plaintiff to re-examine our many former opinions on immunity and overrule them, as she contends the modern trend is away from immunity and to hold charitable institutions liable for their torts. Plaintiff wants us to disregard the doctrine of stare decisis and to accept what she calls the 'fast growing immunity rule'. True, some jurisdictions which followed the immunity doctrine have recently changed their positions and now hold charitable institutions liable in tort. Pierce v. Yakima Valley Memorial Hosp. Ass'n, Wash., 260 P.2d 765; Mississippi Baptist Hospital v. Holmes, Miss., 55 So.2d 142, 25 A.L.R.2d 12; Haynes v. Presbyterian Hosp. Ass'n, 241 Iowa 1269, 45 N.W.2d 151; Porto Rico Gas & Coke Co. v. Frank Rullan, 1 Cir., 189 F.2d 397. However, other courts which have recently examined this question have not seen fit to overrule their former opinions holding charitable institutions free from liability for torts. Meade v. St. Francis Hosp. of Charleston, W.Va., 74 S.E.2d 405; Casper v. Cooper Hosp., 26 N.J.Super. 535, 98 A.2d 605; Felan v. Lucey, Tex.Civ.App., 259 S.W.2d 302; Williams v. Randolph Hospital, 237 N.C. 387, 75 S.E.2d 303.

Unanimity is lacking in the...