Gamble v. Vanderbilt University

• Decision Date: 09 February 1918
• Citation: 200 S.W. 510
• Parties: GAMBLE v. VANDERBILT UNIVERSITY et al.
• Court: Tennessee Supreme Court

Page 510

200 S.W. 510

GAMBLE v. VANDERBILT UNIVERSITY et al.

Supreme Court of Tennessee.

February 9, 1918.

Certiorari to Court of Civil Appeals.

Action by Mary A. Gamble against Vanderbilt University and others. Demurrer to the declaration was sustained in the trial court and on appeal in the Court of Civil Appeals, and plaintiff brings certiorari. Judgment of the Court of Civil Appeals ordered reversed in part and affirmed in part, and cause remanded to the Circuit Court for further proceedings.

Pitts & McConnico and A. F. Whitman, all of Nashville, for Gamble. Chas. C. Trabue and Jordan Stokes, Sr., both of Nashville (Douglas & Norvell, of Nashville, on the briefs), for University.

NEIL, C. J.

This was an action brought in the circuit court of Davidson county against Vanderbilt University and its executive committee to recover damages for injuries inflicted upon the plaintiff's intestate by the falling of an elevator in an office building owned and operated by the university.

The first count of the declaration contains all of the matters necessary to be considered in connection with the demurrer on which the questions for decision arise.

This count contains the following averments:

"(1) That defendant Vanderbilt University is a corporation created and organized under the laws of Tennessee and having its situs at Nashville, in said state, and is engaged, and has been for many years, among other things, in the renting and operation of a large building for office purposes, owned by said defendant and situated at Nos. 311 and 313 Fourth Avenue North, formerly Cherry street, in the heart of the business district of said city of Nashville and remote from and wholly separate and distinct from its university buildings and grounds, which are situated in the suburbs of said city.

"(2) That said building consists of five stories, besides a basement, and contains numerous offices which are and have been for many years rented out annually to business and professional persons, firms, and corporations wholly disconnected with said Vanderbilt University or its educational work, in like manner in all respects as other office quarters are owned and rented out to tenants by other property owners of said city, and from whom are collected monthly rentals by said defendant in like manner in all respects as such rentals are collected by other landlords from their tenants in said city.

"(3) That said defendant owns, maintains, and operates in said building, and has done so for many years, an elevator for the use of its tenants therein, in like manner in all respects as elevators are owned, maintained, and operated by other owners in other office buildings in said city.

"(4) That only a small part of said building is and has been at any time used by said defendant for its law department, and for its law library for the use of its law students, and the larger portion of said building is and has been for many years rented out, as aforesaid, to tenants as business offices, and the principal use to which the said building is and has always been devoted is that of rented offices, and from which said defendant derives a large annual income, to wit, the sum of between $5,000 and $10,000, and the rentals charged and collected are the full, usual, and customary rates charged for similar offices in said city.

"(5) That said defendant owns and operates and has for many years owned and operated other buildings in the business portions of said city of Nashville, which it rents out and has rented out for many years for business, hotel, banking, and residence purposes, to persons, firms, and corporations in no way connected with its university or institution of learning, and from which it receives and has been for many years receiving an annual income of many thousands of dollars — in fact, said defendant is and has been for many years one of the largest business property owners of said city of Nashville.

"(6) That the foregoing facts and conditions existed at and before the time of the injuries hereinafter complained of.

"(7) That at and before the time of the injuries complained of defendants J. H. Kirkland, W. R. Cole, G. M. Neeley, and Jno. B. Ransom were members of the executive committee of said defendant Vanderbilt University, and as such had charge and control of the building aforesaid on Fourth Avenue North, and they and their associates and their appointees, agents, servants, and employés were charged with the duty of supervision, management, and operation of said building and the elevators therein.

"(8) That plaintiff's said husband, Tip Gamble, at and before the time of the injuries herein complained of, was a tenant of defendants, occupying an office on the fourth floor of said building of defendants at 311 and 313 Fourth Avenue North, to wit, in the year 1908.

"(9) That on or about the 25th day of November, 1908, during business hours, the plaintiff's said husband, a lawyer, being at that time a tenant of said building as aforesaid, and lawfully therein, entered the said elevator at the said fourth floor, for the purpose of descending to the street or first floor, the said elevator being at the time in charge of and operated by a temporary servant of defendants, and not the regular operator or conductor, when, as the said elevator descended, the said temporary operator or conductor, by reason of his negligence and incompetence, and the defective, worn, and unsafe condition of the said elevator, lost control thereof and it fell rapidly to the bottom, where the violent and sudden stop and concussion so severely jarred and injured plaintiff's said husband that, by reason of such violent and sudden concussion and injury which was wholly without any fault or negligence on his part, he suffered great bodily and mental pain and anguish, and was forced to incur, pay out, and expend a large sum of money, to wit, the sum of $1,000, for medical and other treatment and service in and about efforts for his cure for a long space of time, to wit, until the 2d day of January, 1909, when, as the result of said injury, he died.

"(10) And so the plaintiff avers that the death of her said husband, Tip Gamble, was caused by the negligence of defendants and their agents, servants, and employés in suffering and permitting the said elevator and its braking and controlling aparatus and machinery to be, become, and remain defective, worn, out of repair, unsafe, and insufficient to control the movements of said elevator and so as to render said elevator unsafe and dangerous to tenants and other persons lawfully in said building, and which defects were known to defendants and not known to plaintiff's said husband; and also by the negligence of defendants in employing and placing in charge of said elevator an unskilled, inexperienced, and incompetent servant as conductor or operator thereof, and whose inexperience and incompetency resulted in his loss of control or inability to control the movements of said elevator; and also by the negligence of the said temporary operator or conductor in failing to operate the same with reasonable care — to plaintiff's damage $25,000, and therefore she sues and demands a jury to try the cause."

There are several grounds of demurrer, but we need consider only the third, which presents the point that the defendant corporation is a charitable institution, and, as such, holds its funds in trust for eleemosynary purposes, and therefore it cannot be held liable in damages for the injuries complained of.

This ground of demurrer was sustained in the trial court, and also in the Court of Civil Appeals, and the case is now here on the writ of certiorari to the latter court to review its decision.

We shall defer, for the present, the consideration of the case of the executive committee.

It is conceded by the plaintiff that the defendant is a charitable institution, and the counsel for the latter have so treated the case. Therefore we need not consider whether the declaration charges the fact with sufficient clearness.

The question for determination is whether the defendant charitable corporation is exempt from liability in an action of damages for the tort averred in the declaration.

We had occasion to consider the general subject in Abston v. Waldon Academy, 118 Tenn. 24, 102 S. W. 351, 11 L. R. A. (N. S.) 1179. In that case it was held that the defendant, a charitable corporation, was not liable for an injury to one of its students caused by the negligence of its servants. We adopted what is known in this class of cases as the trust theory. The general reason given was that to permit the payment of such damages would result in a diversion of the trust fund from the purposes to which it was devoted by the donor. Another general idea was that the tolerance of such liabilities would, in many cases, eventuate in the destruction of the charity, with a consequent discouragement of donors, to the detriment of the public welfare. The case, if the court had conceded the doctrine, might well have been decided on the narrower ground to which many of the modern cases are confined, and on which some of the authorities even at that time stood, to the effect that a beneficiary of the charity, in consideration of the privileges enjoyed, must be presumed to have waived any right to damages of the kind referred to. The court, however, with all the authorities before it then in existence, decided to adopt the broader view as being most in accord with sound public policy. We are still of that view, although we do not undervalue the very able opinions (Powers v. Massachusetts Homeopathic Hospital, 47 C. C. A. 122, 109 Fed. 294, 65 L. R. A. 372; Bruce v. Central M. E. Church, 147 Mich. 230, 110 N. W. 951, 10 L. R. A. [N. S.] 74, 11 Ann. Cas. 150; Hordern v. Salvation Army, 199 N. Y. 233, 92 N. E. 626, 32 L. R. A. [N. S.] 62, 139 Am. St. Rep. 889; Basabo v. Salvation Army, 35 R. I. 22, 85 Atl. 120, 42 L. R. A. [N. S.] 1144, and...