Granger v. Deaconess Hospital of Grand Forks

• Decision Date: 23 November 1965
• Docket Number: No. 8185,8185
• Citation: 138 N.W.2d 443
• Parties: Beverly GRANGER, Plaintiff and Respondent, v. DEACONESS HOSPITAL OF GRAND FORKS, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 443

138 N.W.2d 443

Beverly GRANGER, Plaintiff and Respondent, v. DEACONESS HOSPITAL OF GRAND FORKS, Defendant and Appellant.

No. 8185.

Supreme Court of North Dakota.

Nov. 23, 1965.

Syllabus by the Court

1. An order granting a motion to strike the defense of charitable immunity from an answer to a complaint alleging liability on the part of a charitable nonprofit corporate hospital for the tort of its employees to a patient of the hospital is appealable because it strikes an affirmative defense not provable under the remaining allegations of the answer.

2. A charitable nonprofit corporate hospital is liable to a patient for the torts of its employees.

3. An order suppressing reference to testimony before a county welfare board is an intermediate order and is not appealable under Sec. 28-27-02, N.D.C.C.

4. An order denying the defendant's request to compel further depositions of the plaintiff for discovery purposes is an intermediate order and is not appealable under Sec. 28-27-02, N.D.C.C.

Mart R. Vogel, Fargo, and H. G. Ruemmele, Grand Forks, for appellant.

Samuel Rubin, Grand Forks, and Alan L. Stiegler, Minneapolis, Minn., for respondent.

ERICKSTAD, Judge (on reassignment).

This is an appeal from an order of the District Court of Grand Forks County dated April 21, 1964, granting the motions of the plaintiff, Beverly Granger, to: (1) strike the defense of charitable immunity contained in the answer of the defendant, Deaconess Hospital of Grand Forks; (2) suppress any reference to the plaintiff's testimony before the Grand Forks County Welfare Board; and (3) deny the defendant's request to compel further depositions of the plaintiff for discovery purposes.

In this case the plaintiff sued the defendant hospital, alleging that while she was a patient in the hospital and under sedation, the hospital, through its agents, servants, and employees, negligently permitted her to smoke while lying in bed, resulting in a fire which seriously burned her, causing massive bodily injuries. The defendant included in its answer an affirmative defense that it was a charitable corporation dedicated to the relief of pain and suffering; that it is a nonprofit organization and that no part of its earnings or income have ever been or are diverted from charitable purposes, and that, as a consequence thereof, the defendant is free from tort liability under the laws of North Dakota.

The first issue which we shall consider is the defendant's appeal from that part of the trial court's order which struck the defendant's affirmative defense of charitable immunity.

The order granting the motion to strike to defense of charitable immunity from the answer is appealable because it strikes an affirmative defense not provable under the remaining allegations of the answer. See La Duke v. E. W. Wylie Co., 77 N.D. 592, 44 N.W.2d 204.

An order which strikes from an answer an affirmative defense not provable under the remaining allegations of the answer, is an appealable order.

La Duke v. E. W. Wylie Co., supra, Syllabus No. 1.

In La Duke this court said:

* * * The appealability of the order depends upon the nature of the material stricken. If it involves the merits of the action or a part thereof, it falls within our statutory provision, but a rule of thumb is not always available to determine when an order involves the merits. It is clear that the merits are not involved when the order strikes out irrelevant or redundant matter. Upon the other hand it is equally clear that if the order strikes an affirmative defense not provable under the remaining allegations of the answer it is appealable. * * *

La Duke v. E. W. Wylie Co., supra, 44 N.W.2d at 206.

Having held that that part of the order granting the motion to strike the defense of charitable immunity from the answer is appealable, we must now determine whether a charitable nonprofit corporate hospital is liable to a patient for injuries caused the patient through the negligence of its employees.

Although we are cognizant of the dicta contained in two early decisions of this court, namely, Fawcett v. Ryder, 23 N.D. 20, 135 N.W. 800, and Boetcher v. Budd, 61 N.D. 50, 237 N.W. 650, in which this court held that private hospitals operated for profit were liable for injuries caused a patient but inferred that a different rule might apply in the case of a charitable institution, we believe that this court determined the rule to be otherwise in the case of Rickbeil v. Grafton Deaconess Hospital, 74 N.D. 525, 23 N.W.2d 247, 166 A.L.R. 99.

That case involved an action for libel brought by someone other than a patient against a charitable nonprofit corporate hospital. In holding the hospital liable, this court said:

Title 10 of the Rev.Code deals with corporations, and sec. 10-0101 provides- : 'The provisions of this title shall apply to all corporations other than public corporations unless, from the context of any statute, a different intention plainly appears.' * * * This title provides (sec. 10-0107) that, 'Every corporation, as such, has power, * * * to sue and be sued in any court; * * *.' Chap. 10-08 of the title refers to benevolent corporations, not organized for profit, and nowhere therein do we find any exemption from liability for torts of agents. Law reports are full of cases where judgments are entered against hospitals for torts of employees. In the absence of statutory exemption, a non-profit corporation is liable for its torts the same as any other corporation. 'A hospital, whether private or charitable, is liable to a patient for the torts of its employees under the doctrine of 'respondeat superior." St. Paul-Mercury Indemnity Co. v. St. Joseph's Hospital, 212 Minn. 558, 4 N.W.2d 637. Thus there is no exemption from liability merely because the hospital is a private institution or a charitable institution.

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As we have pointed out there is no statutory immunity in this state. To release any corporation of the type involved from immunity for torts requires judicial legislation. * * *

Rickbeil v. Grafton Deaconess Hospital, supra, 23 N.W.2d at 258-259.

As we have never applied the doctrine of charitable immunity in our state, the case of Michael v. Hahnemann Medical College & Hospital, 404 Pa. 424, 172 A.2d 769, referred to us by the appellant for its statement on the importance of stare decisis, can have no bearing.

In Rickbeil, in acknowledging that courts are not in accord with reference to the liability of certain charitable hospitals, particularly those created and maintained by trusts, this court cited the case of Greatrex v. Evangelical Deaconess Hospital, 261 Mich. 327, 246 N.W. 137, 86 A.L.R. 487, as saying:

* * * [I]mmunity of charitable hospitals was declared because of trust situation where hospital authorities exercised reasonable care of selection of employees and because of the waiver theory.

It is significant that since Rickbeil the Michigan Supreme Court has overruled Greatrex in the case of Parker v. Port Huron Hospital, 361 Mich. 1, 105 N.W.2d 1, decided in 1960.

In overruling Greatrex and other decisions which followed it in the State of Michigan, the Michigan Supreme Court quoted at length Justice Rutledge's opinion in President and Dir. of Georgetown College v. Hughes, 76 U.S.App.D.C. 123, 130 F.2d 810 (1942).

Because of the excellence of the discussion of the doctrine of charitable immunity by Justice Rutledge, we would like to quote him also:

* * * The doctrine of immunity of charitable corporations found its way into the law, like the so-called 'trust fund' doctrine in the law of private business corporations, through misconception or misapplication of previously established principles.

The foundation of immunity in this country is the dictum of Lord Cottenham in The Feoffees of Heriot's Hospital v. Ross, 1846, 12 Clark & Fin. 507, 513, 8 Eng.Reprint 1508: 'To give damages out of a trust fund would not be to apply it to those objects whom the author of the fund had in view, but would be to divert it to a completely different purpose.' The action was for damages for wrongful exclusion from the benefits of the charity, not for personal injury inflicted in its operation. Previously, in Duncan v. Findlater, 1839, 6 Clark & Fin. 894, 7 Eng.Reprint 934, the same judge had uttered a similar dictum, and this was followed in Holliday day v. St. Leonard, 1861, 11 C.B.,N.S., 192. However, the dictum of Duncan v. Findlater was overruled by Mersey Docks Trustees v. Gibbs, [1866] L.R. 1 H.L. 93, and the ruling of Holliday v. St. Leonard was reversed by Foreman v. Mayor of Canterbury, [1871] L.R. 6 Q.B. 214.

In this state of the English decisions, Massachusetts adopted the repudiated rule of Holliday v. St. Leonard in McDonald v. Massachusetts General Hospital, 1876, 120 Mass. 432, 21 Am.Rep. 529, and Maryland followed Heriot's case in Perry v. House of Refuge, 1885, 63 Md. 20, 52 Am.Rep. 495. Apparently both courts acted in ignorance of the English reversal. In any event, they resurrected in America a rule already dead in England, and thereby gave Lord Cottenham's dictum a new lease on life in the New World.

* * * [A] rule of absolute immunity which grew out of dicta pointing the plaintiff to another source of recovery and involved an application or misapplication, as may have been the case, of the law of trusts to a corporate situation, hardly gains permanence from its origin. When to these facts are added its early reversal, and its acceptance in this country in disregard or ignorance of that fact, the historical foundation crumbles. * * *

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It is doubtful that the so-called 'rule' of full immunity ever represented the prevailing state of decision in this country. Conflict has existed from the beginning. Rhode Island repudiated the immunity just when Massachusetts and Maryland were adopting it. Glavin v. Rhode Island Hospital, 1879, 12 R.I. 411, 34 Am.Rep. 675. Nevertheless judicial discussion has set in the...