Gile v. Kennewick Public Hospital Dist.

• Citation: 296 P.2d 662,48 Wn.2d 774
• Decision Date: 26 April 1956
• Docket Number: No. 33560,33560
• Court: United States State Supreme Court of Washington
• Parties: , 59 A.L.R.2d 761 John A. GILE, as administrator of the estate of Sarah Helen Gile, deceased, Appellant, v. KENNEWICK PUBLIC HOSPITAL DISTRICT, a municipal corporation, and Edward B. Payne and Mrs. Edward B. Payne, his wife, Respondents.

Page 774

48 Wn.2d 774

296 P.2d 662, 59 A.L.R.2d 761

John A. GILE, as administrator of the estate of Sarah Helen

Gile, deceased, Appellant, v. KENNEWICK PUBLIC HOSPITAL DISTRICT, a municipal corporation, and Edward B. Payne and Mrs. Edward B. Payne, his

wife, Respondents.

No. 33560.

Supreme Court of Washington, Department 2.

April 26, 1956.

Tonkoff, Holst & Hopp, Yakima, Theodore D. Peterson, Pasco, for appellant.

Gavin, Robinson & Kendrick, Yakima, Moulton, Powell & Loney, Kennewick, James Leavy, Pasco, for respondents.

HILL, Justice.

The plaintiff, as administrator of the estate of Sarah Helen Gile, deceased, and for the benefit of himself as surviving spouse and of a surviving child as authorized under our wrongful death statute, Laws of 1917, chapter 123, §§ 1, 2, p. 495, Rem.Rev.Stat. §§ 183, 183-1, cf. RCW 4.20.010, 4.20.020, sued a public hospital district and others not here material for damages in the amount of $109,600 for her death. Demurrers were sustained to three causes of action predicated upon negligence, the taking of private property without compensation, and the breach of a warranty of fitness on the sale of blood. Orders were entered dismissing the three causes of action, and the plaintiff appeals.

It is alleged in the cause of action predicated upon negligence that the hospital district, through its employees,

'* * * negligently failed to properly and correctly ascertain and determine the blood type of said Sarah Helen Gile * * * [and] negligently failed to furnish blood for transfusion * * * which was compatible with * * * [her] blood * * * and of a suitable and proper type,'

and that this was the cause of her death.

The demurrer to this cause of action was sustained because the statute providing for the creation of public hospital districts provides that a public hospital district '* * * shall not be liable for negligence for any act of any officer, agent or employee of said district: * * *.' Laws of 1949, chapter 197, § 18(h), p. 603, Rem.Supp.1949, § 6090-35(h), cf. RCW 70.44.060(8).

To avoid the immunity from liability for negligence which the statute on its face seems to provide, the plaintiff argues that the immunity applies only to negligent acts and not to negligent omissions. He cites certain other immunity statutes in which the legislature has said that no action shall lie for any 'non-contractual acts or omission', Laws of 1917, chapter 92, § 1, p. 332, Rem.Rev.Stat. § 4706, cf. RCW 28.58.030; Laws of 1921, chapter 185, § 1, p. 747, Rem.Rev.Stat. § 9663, cf. RCW 86.12.180, and argues that the use in those statutes of the words 'acts or omission' indicates that the legislature recognizes a distinction between them.

The argument is ingenious, but it gives a tortured interpretation to the statute. Negligence may consist of an act of commission or an act of omission, and it is absolutely inconceivable that the legislature intended that a hospital district could be sued for negligent acts of omission but not for negligent acts of commission. No act of the legislature reaching such a result has been brought to our attention. The acts referring to 'non-contractual acts or omission' do not use the word 'negligence' and seem to us entirely irrelevant to any discussion of the meaning of the statute now under consideration.

The trial court correctly sustained the demurrer to the cause of action based upon negligence, because the statute specifically provides that the hospital district is not liable therefor. It is, therefore, unnecessary to enter into a dialectical discussion of whether the failure to determine correctly the blood type of Mrs. Gile was an act or an omission and, likewise, whether the furnishing of blood which was not of a suitable type was an act or an omission.

The contention that a cause of action could be predicated upon the theory that private property has been taken for a public or private use without compensation (Art. 1, § 16 of our state constitution, both before and after the adoption of the ninth amendment) is, in our opinion, without merit. In this cause of action the plaintiff repeats every allegation of the cause of action to which we have just held that a demurrer was property sustained, and then adds:

'That by reason of the above mentioned acts [the acts of negligence just referred to] * * * the plaintiff was deprived of property, namely the life of Sarah Helen Gile, that by reason thereof plaintiff is damaged in the sum of $109,600.00.'

Even if it be conceded arguendo that the husband and child of Sarah Helen Gile had a property right in the continued life of the wife and mother, the inclusion of an allegation to that effect does not give the administrator of her estate the authority to recover the value of that property right on their behalf. He sues for their benefit only by reason of special statutory authority. Laws of 1917, chapter 123, § 2, p. 495, Rem.Rev.Stat. § 183-1, cf. RCW 4.20.020. See Upchurch v. Hubbard, 1947, 29 Wash.2d 559, 188 P.2d 82; Ryan v. Poole, 1935, 182 Wash. 532, 47 P.2d 981; Jensen v. Culbert, 1925, 134 Wash. 599, 236 P. 101. Further, it is clear that the husband and child lost their property right, it any, by reason of the negligence alleged. If an action for wrongful death caused by negligence is barred by § 18(h) of chapter 197, Laws of 1949, p. 603, Rem.Supp.1949, § 6090-35(h), cf. RCW 70.44.060(8), it follows that an action for the loss of property caused by that negligence would also be barred.

The demurrer to the cause of action predicated upon the taking of property without compensation was properly sustained.

We now turn to the cause of action predicated upon the proposition that the hospital district sold to Sarah Helen Gile and her husband the blood used in the transfusion, and that there was a warranty of its fitness for the purpose intended.

Counsel for the plaintiff are certainly entitled to kudos for their efforts to avoid the effects of the immunity statute, but we are satisfied, for at least two reasons, that the demurrer to this cause of action was properly sustained.

We pass the questions relative to privity of contract, who would be the proper parties plaintiff, and for whose benefit such a contract action could be waged, and come to grips with the plaintiff's allegations, first, that there was a contract for the sale of blood, and, second, that by reason of such sale, there was a breach of a warranty of implied fitness for which the hospital district is liable.

The material allegations in this cause of action are that the hospital district,

'* * * in the regular course of its business operates, maintains, and furnishes hospital service to persons or patients, * * * and that said defendant [hospital district] charged the plaintiff John A. Gile and the deceased, Sarah Helen Gile, the ordinary and regular charges made by a hospital operating for profit. * * *

'That on or about the 12th day of May, 1953, Sarah Helen Gile, plaintiff's deceased wife, was entered and accepted as a paying patient of defendant corporations hospital for the purpose of having surgery performed upon her right knee; that on or about the 13th day of May, 1953, the said Sarah Helen Gile had surgery performed upon her right knee in said hospital; that at or about the hour of 4:00 o'clock P.M. of said 13th day of May, 1953, the said Sarah Helen Gile was given a routine blood transfusion upon the orders of defendant Edward B. Payne to promote the healing of the surgery; that * * * the said Sarah Helen Gile died as a direct and proximate result of being given said blood transfusion. * * *

'That the defendant hospital in the regular course of its business employed nurses, laboratory technicians, X-ray technicians, and other trained personnel. * * *

'That in the regular course of its business said defendant hospital undertook to and did furnish laboratory services to the said Sarah Helen Gile, consisting of the typing of her blood and the ascertaining and determining of a donor's blood for type and compatibility in order to make a transfusion or injection of said donor's blood into the living body of the said Sarah Helen Gile. * * *

'That * * * said defendant hospital did know the particular purposes for which said blood and services were required; that the decedent and the plaintiff herein relied upon the said defendant hospital's skill or judgment in selecting said blood and in furnishing said services and that by reason thereof there was an implied warranty from the said defendant hospital to the decedent and to the plaintiff herein that said blood and services were reasonably fit for the purpose for which they were intended to be used and that the specific blood so used was reasonably fit and proper to be injected into the living body of Sarah Helen Gile; that said blood was not fit and proper to be injected into the body of the said Sarah Helen Gile, and the services consisting of typing the blood of the said Sarah...