Greatrex v. Evangelical Deaconess Hosp.

• Decision Date: 03 January 1933
• Docket Number: No. 25.,25.
• Citation: 261 Mich. 327,246 N.W. 137
• Parties: GREATREX v. EVANGELICAL DEACONESS HOSPITAL.
• Court: Michigan Supreme Court

261 Mich. 327

246 N.W. 137

GREATREX

v.EVANGELICAL DEACONESS HOSPITAL.

No. 25.

Supreme Court of Michigan.

Jan. 3, 1933.

Appeal from Circuit Court, Wayne County; De Witt H. Merriam, Judge.

Action by William C. Greatrex against the Evangelical Deaconess Hospital. From the judgment for defendant, plaintiff appeals.

Affirmed.

Argued before the Entire Bench.Louis Starfield Cohane and Regene Freund Cohane, both of Detroit (Lester S. Smith, of Detroit, of counsel), for appellant.

Brown, Stoneman, Lorenzo & Springstun, of Detroit, for appellee.

BUTZEL, J.

On September 8, 1923, plaintiff, William C. Greatrex, brought his wife and their week old baby to defendant, Evangelical Deaconess Hospital, a Michigan corporation formed for norprofit purposes. Nine days later, plaintiff's wife died, and he took her body to Toronto for burial. He left the baby at the hospital with the assurance that for $1 a day the bady would receive the best of care. At about the time of the birth of the Greatrex baby, the daughter of one Vlemminck gave birth at the hospital to a child, the result of an incestuous relationship between Vlemminck and his daughter. When the daughter had recovered sufficient strength to enable her to return home, she also left the baby for care at defendant hospital. Vlemminck called for the bady, and, through the negligence of a nurse, was given the Greatrex baby. She testified that she thought it was Greatrex and not Vlemminck who was calling for the baby.

Shortly thereafter, when Greatrex called for his child and was offered the Vlemminck baby, the mistake was discovered. Efforts to recover the Greatrex baby were futile. Vlemminck claimed that he had given the child to some strangers who were passing through the city in an automobile. There is little doubt but that Vlemminck disposed of the baby in some manner. It has never been found, and there is a strong intimation that it may no longer be alive.

To recite the harrowing and pathetic details of Greatrex's discovery of the loss of his child and the uncertainty and grief that followed would serve no useful purpose in this opinion. It is sufficient to say that Greatrex has suffered a very great injury for which, as the circuit judge held, the hospital must not respond in damages. Downes v. Harper Hospital, 101 Mich. 555, 60 N. W. 42,25 L. R. A. 602, 45 Am. St. Rep. 427;Pepke v. Grace Hospital, 130 Mich. 493, 90 N. W. 278;Bruce v. Henry Ford Hospital, 254 Mich. 394, 236 N. W. 813. For a very complete analysis of the law and the supporting authorities, see 19 Michigan Law Review 395. See, also, Schloendorff v. Society of N. Y. Hospital, 211 N. Y. 125, 105 N. E. 92,52 L. R. A. (N. S.) 505, Ann. Cas. 1915C, 581;Rudy v. Lakeside Hospital, 115 Ohio St. 539, 155 N. E. 126;Roosen v. Peter Bent Brigham Hospital, 235 Mass. 66, 126 N. E. 392, 14 A. L. R. 563.

Plaintiff, in his suit against the hospital, first declared on a tort count, then on an assumpsit count, and then added the common counts. Recognizing the rule laid down by this court that a hospital, formed for nonprofit purposes and supported by the benevolence of its contributors, cannot be held liable for the torts of its agents or employees, he discontinued all the counts of his declaration except the second one in assumpsit. While the count does state that there was a contract to care for the baby at a stipulated fee per diem, the child to be returned to plaintiff when called for, the cause of action and the damages claimed differ but slightly from those set forth in the count in tort, long paragraphs from which are incorporated in the assumpsit count.

Plaintiff also attempts to ground his action on some cases in another jurisdiction where liability was found because of a failure to use reasonable care in selecting a competent nurse. It is unnecessary to discuss the correctness of such a holding, for, even were we to adopt it, the record shows that the nurse, responsible for the tortious act in the instant case, was a registered graduate with a background of three years of hospital training prior to her entry into defendant's employ some three years before the occurrence for which suit is brought. Naming or labeling a count assumpsit does not make it such, when it is apparent on its face that it is one in tort. Nor is there any magic in the use of one term instead of another, when the gravamen of the act complained of is the negligence or mistake of a servant of an eleemosynary institution, exempted from liability by law under these circumstances.

The reasoning in the three Michigan cases cited applies with equal force to a case where the breach of contract was caused through the negligence of the hospital attendants. In Downes v. Harper Hospital, supra, this court said at page 559 of 101 Mich.,60 N. W. 42, 43,25 L. R. A. 602, 45 Am. St. Rep. 427:

‘If the contention of the learned counsel for the plaintiff be true, it follows that the charity or trust fund must be used to compensate injured parties for the negligence of the trustees, or architects and builders, upon whose judgment reliance is placed as to plans and strength of materials; of physicians employed to treat patients; and of nurses and attendants. In this way the trust fund might be entirely destroyed, and diverted from the purpose for which the donor gave it. Charitable bequests cannot be thus thwarted by negligence for which the donor is in no manner responsible. If, in the proper execution of the trust, a trustee or an employee commits an act of negligence, he may be held responsible for his negligent act; but the law jealously guards the charitable trust fund, and does not permit it to be frittered away by the negligent acts of those employed in its execution. The trustees of this fund could not by their own direct act divert it from the purpose for which it was given, or for which the act of the legislature authorized the title to be vested in the defendant. It certainly follows that the fund cannot be indirectly diverted by the tortious or negligent acts of the managers of the fund, or their employees, though such acts result in damage to an innocent beneficiary. Those voluntarily accepting the benefit of the charity accept it upon this condition.

‘The fact that patients who are able to pay are required to do so does not deprive the defendant of its eleemosynary character, nor permit a recovery for damages on account of the existence of contract relations. The amounts thus received are not for private gain, but contribute to the more effectual accomplishment of the purpose for which the charity was founded. The wrongdoer, in a case of injury, but not the trust fund, must respond in damages. This proposition seems too clear to require argument or...