Helton v. Sisters of Mercy of St. Joseph's Hospital

Citation351 S.W.2d 129,234 Ark. 76
Decision Date30 October 1961
Docket NumberNo. 5-2501,5-2501
PartiesSharon Diane HELTON, by Sanders Helton, Her Father and Next Friend, and Sanders Helton, Individually, Appellants, v. SISTERS OF MERCY OF ST. JOSEPH'S HOSPITAL, Appellee.
CourtSupreme Court of Arkansas

McMath, Leatherman, Woods & Youngdahl, Little Rock, Belli, Ashe & Gerry, San Francisco, Cal., for appellants.

Wootton, Land & Matthews, Hot Springs, for appellee.

Spitzberg, Bonner, Mitchell & Hays, Little Rock, amicus curiae on behalf of Arkansas Hospital Ass'n.

ROBINSON, Justice.

This action arose out of injuries sustained by Sharon Diane Helton, a minor, while being examined at appellee's hospital in Hot Springs. The suit was filed by the little girl's father as next friend, and by the father individually, against the Sisters of Mercy of St. Joseph's Hospital in Hot Springs. On November 22, 1960, appellant filed a tort action in the Garland Circuit Court, alleging that on the 12th day of November, 1959, Sharon was delivered to St. Joseph's Hospital so that a physical examination could be made; that she was given a general anaesthetic and placed upon a 'cystotable in the usual manner required by these examinations' that employees of the hospital carelessly and negligently injected sodium hydroxide into the bladder of the little girl, instead of sodium iodide; that as a result of such negligence Sharon suffered severe permanent injuries, among which was the destruction of her bladder; that it is now necessary for her to wear an artificial bladder on the outside of her body, and she will have to wear it for the rest of her life. The complaint prays for judgment in the sum of $386,250. In response to the complaint, the defendant hospital filed a motion to dismiss, alleging that it is a charitable institution and that as such it is not liable in tort.

On January 25, 1961, appellant filed a second suit against appellee, alleging the same injuries and the same circumstances involved when the injuries were sustained, but instead of alleging that the injuries were caused by the negligence and carelessness of the employees of the defendant hospital, the complaint states 'that on or about November 12, 1959, the plaintiff, Sanders Helton, entered into a contract with the defendant under the terms of which for a good and valuable consideration the defendant undertook to furnish to defendant's daughter, Sharon Diane Helton, an operating room, proper personnel and proper facilities for a cystogram and cystoscopy on plaintiff's daughter. The defendant undertook that the operating room would be safe and suitable, and that its agents, servants and employees would perform their duties in a reasonable and proper manner and that the said Sharon Diane Helton would be fully protected against all harm that might be reasonably anticipated and forestalled by normal hospital operating procedures. That plaintiff Sharon Diane Helton was a third party beneficiary of said contract.'

By agreement of the parties the cases were consolidated. Defendant filed a motion to dismiss the second suit on the ground that although plaintiff had attempted to allege a breach of contract, the complaint nevertheless sounds in sort and that defendant is therefore not liable.

Defendant produced evidence by way of depositions going to prove that the hospital is a public charity. Although given ample opportunity, plaintiff produced no evidence in contradiction of defendant's testimony on that point. After considering the evidence on the proposition of whether the hospital is a charitable institution, and the argument of counsel, the trial court granted the motions to dismiss both cases. Mr. Helton on behalf of his minor daughter and himself has appealed.

There are three questions involved:

(1) Is appellee, 'Sisters of Mercy of St. Joseph's Hospital', a public charity as a matter of law, according to the undisputed evidence?

(2) Of course, if it is not a public charity, it is liable in tort. On the other hand, is it liable in tort even if it is a public charity?

(3) If the hospital is a public charity and not liable in tort, is it liable on the alleged contract?

We will deal with the questions in the order named. First, is the hospital, according to the evidence, a public charity as a matter of law? The answer is yes. There are several things that inevitably lead to this conclusion. The articles of incorporation provide: 'The purpose and essence of this corporation is and shall be purely benevolent, charitable, religious and philanthropic, and it is expressly declared and provided that this Corporation is not for gain or individual profit, and that none of its property, real, personal or mixed, shall ever be used or expended except in carrying into effect the legitimate ends and purposes of its being, and that no person or member shall gain or derive individual profit therefrom.' All taxing authorities consider it a charitable institution; it pays no taxes; it is exempt from sales tax and state and federal income taxes. It is sponsored by the Sisters of Mercy, a Catholic order, but its doors are always open to anyone, regardless of creed, needing hospitalization. No one has ever been turned away because he could not afford to pay. No one has ever made one dime profit out of the institution. The Sisters who work at the hospital receive no pay. Over a five-year period the actual physical labor performed for the hospital by the Sisters, figured on a labor basis alone, was worth $170,000 to the institution. During the same period, $328,373 in cash was donated to the hospital by charitably inclined people. True, the hospital has accumulated the sum of about $600,000, which it hopes to use in expanding and improving its facilities, but if it had been compelled to pay taxes and had not had the services of the Sisters donated as charity, and the gifts of money, there would be no surplus; in fact, the hospital in all probability would be bankrupt.

In addition, a matter of considerable weight to be considered in reaching a conclusion as to whether the hospital is a charitable institution is the fact that the same hospital has heretofore been declared by this Court to be a public charity. Hot Springs School Dist. v. Sisters of Mercy, 84 Ark. 497, 106 S.W. 954, 955. That case was decided in 1907, and there Judge Hart, speaking for the Court, said: 'One of the witnesses here said that she had been a member of the Sisters of Mercy for 40 years, that the whole object of the order was charity, and that their whole life was devoted to it. On response to the question, 'This order, the Sisters of Mercy, what is the general work of the order and to what do your vows pertain?' she answered, 'To the poor and sick and educational.' In this case the buildings were constructed and fitted for use solely as a public hospital. The members of the order receive no compensation for themselves. Their earnings and their lives are devoted to charity.'

The evidence in the present case is to the same effect. There is no material difference in the operation of the hospital today and the operation when the above mentioned Sisters of Mercy case was decided many years ago. The hospital was established in 1888 and incorporated under Ark.Stat. § 64-1301 in 1951. In the case at bar Mother Mary Bertram Daley testified that 'We [Sisters of Mercy] are founded to care for the poor, the sick, and the ignorant. That is a very broad field. We take the vows, one of tem being poverty and anything that comes to us by our work or given to us as a gift becomes the property of the community and is used for the works of the community.' In Crossett Health Center v. Croswell, 221 Ark. 874, 256 S.W.2d 548, there was evidence to the effect that the hospital was not a charitable institution, but here there is no such evidence.

Next, to say that a public charity is liable in tort, we would have to overrule cases holding just the opposite. Woman's Christian National Library Ass'n v. Fordyce, 79 Ark. 532, 86 S.W. 417, and Fordyce v. Woman's Christian National Library Ass'n, 79 Ark. 550, 96 S.W. 155, 7 L.R.A,N.S., 485. Arkansas Baptist College v. Wilson, 200 Ark. 1189, 138 S.W.2d 376, 377, was a suit on a teacher's contract. This Court said: 'If this were an action to recover for the tort of the trustees, then appellants would be protected under the doctrine of the Fordyce case, * * *.'

In Cabbiness v. City of North Little Rock, 228 Ark. 356, 307 S.W.2d 529, 533, decided in 1957, one of the issues was whether the North Little Rock Boys' Club, a charitable corporation, was liable in tort. We pointed out that to hold that such liability existed, we would have to overrule the Fordyce and other cases, and we said: 'This we refuse to do.' And it was further said in the Cabbiness case: 'The Fordyce cases were decided in 1906 and the rule of immunity of a charitable corporation from tort liability, as there recognized, has become a rule of property in this State. It is for the Legislature, rather than the courts, to effectuate a change, if such is desired.' [Emphasis added.]

In a most able manner counsel for appellant urge us to overrule cases holding a charitable institution is not liable in tort, and much authority from other states has been cited indicating that the trend is along that line. But in view of our prior holdings, and especially the strong language in the Cabbiness case, we do not feel like taking the liberty of doing so. It will be noticed that in the Cabbiness case it is stated that the rule of immunity of a charitable corporation from tort liability has become a rule of property. In Pitcock v. State, 91 Ark. 527, 121 S.W. 742, 747, Chief Justice McCulloch, speaking for the Court, said: 'Decisions which become rules of property should never be overruled, whether they are right or wrong.' And in Burel v. Grand Lodge, I. O. O. F., 163 Ark. 131, 259 S.W. 369, 370, it is said: 'The decision has become...

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