Hewett v. Woman's Hosp. Aid Ass'n

• Decision Date: 05 June 1906
• Citation: 64 A. 190,73 N.H. 556
• Parties: HEWETT v. WOMAN'S HOSPITAL AID ASS'N et al.
• Court: New Hampshire Supreme Court

64 A. 190

73 N.H. 556

HEWETT

v. WOMAN'S HOSPITAL AID ASS'N et al.

Supreme Court of New Hampshire. Merrimack.

June 5, 1906.

Transferred from Superior Court; Chamberlin, Judge.

Action by Vera M. Hewett against the Woman's Hospital Aid Association and another. There was a verdict for plaintiff as against the defendant named, and the case was transferred from the superior court. Judgment on the verdict.

The plaintiff was a pupil nurse in the hospital under a contract by which she was to be trained for a nurse and receive 310 a month. She began her service there in January, 1902, when she was 19 years old. In December, 1903, Mrs. Russell put her in charge of a patient, whose malady the state bacteriologist, after an examination of a cul ture taken from her, informed Mrs. Russell was diphtheria, a contagious disease. Mrs. Russell had doubts whether it was diphtheria. If it was, it was a very peculiar and unusual form of the disease. The plaintiff was not informed by any one that it might be diphtheria, and was left in ignorance in regard to it until she developed the disease a few days after she was put in charge of the case. Under the declaration, the plaintiff claimed that she was entitled to a verdict against the hospital for its negligence in not notifying her that the case might be diphtheria, and against Mrs. Russell for her personal negligence in assigning her to the case, and for malpractice. At the close of the evidence both defendants moved that verdicts be directed in their favor. The motions were denied, and they excepted.

Henry F. Hollis, for plaintiff. John H. Albin and William H. Sawyer, for defendants.

WALKER, J. The plaintiff's declaration combined three causes of action; one against the hospital for its negligence in not notifying her of the danger of her situation in performing the duties of a nurse, one against Mrs. Russel for her personal negligence in inducing the plaintiff to assume the performance of those duties under the circumstances, and one against Mrs. Russell for professional malpractice in attending the plaintiff after she had contracted the disease of diphtheria. The jury returned a verdict against the hospital and a verdict for Mrs. Russell, finding substantially that, while the hospital was negligent as alleged, Mrs. Russell, its representative and manager, who actively directed the plaintiff to assume the danger complained of, was not negligent in that respect, and that she was not guilty of subsequent malpractice. If there is an apparent inconsistency between the first and second findings, a point upon which no opinion is expressed, neither party is in a position, as the case is here presented, to take advantage of it as a ground for setting aside one verdict and sustaining the other. If the supposed inconsistency existed, it would show that there had been a mistrial, and the result would be that both verdicts would be set aside and a new trial granted upon the first two issues raised in the declaration. The verdict upon the third issue in relation to Mrs. Russell's malpractice, having been fairly tried, would be unaffected by that result. But neither party moved in the superior court to have the verdicts set aside upon the ground of a mistrial, nor does either now urge that disposition of the case. Each seeks to preserve so much of the jury's action as is favorable to that side, and to reject the rest. Under such circumstances both verdicts must stand, so far as this objection to them is concerned, even if they are inconsistent. If the parties are satisfied, the court will not complain. The defendant's suggestion that the verdict in favor of Mrs. Russell is a special verdict or finding that there was no negligence on the part of the hospital, and hence that it controls the general verdict against the latter (Richardson v. Weare, 62 N. H. 80; Folsom v. Railroad, 68 N. H. 178, 44 Atl. 134), is untenable, since no way is discoverable by which to determine that one of the verdicts is general or special rather than the other. If it is true that upon the evidence the actionable negligence of the hospital was also the actionable negligence of Mrs. Russell, and that a finding of her freedom from fault is necessarily equivalent to a finding that the hospital was not guilty, it is equally true, on the other hand, that the verdict of guilty against the hospital establishes the guilt of Mrs. Russell. The difficulty encountered is that there is nothing upon which to predicate the assertion that one of the findings is general and the other special. Both must stand or fall together.

The principal contention relates to the liability of the hospital, in an action of tort, for negligence. A motion was made in the superior court in behalf of the hospital that a verdict to be directed in its favor. The motion was denied, subject to exception. Broadly stated, the question thus presented is whether there was any competent evidence from which it could be found that the defendant hospital was guilty of a breach of duty toward the plaintiff, which was the proximate cause of her injury. If there was, the case was properly one for the jury; if there was not, the defendant was entitled to a verdict, and its motion should have been granted. In support of the motion, it is urged that the corporate character of the defendant is such that it owed no duty to the plaintiff for the breach of which it can be held liable in an action of tort. Since the legal doctrine of negligence assumes as its basis or necessary premise the existence of a legal duty due from the alleged wrongdoer to the injured party, it is important to ascertain what the relations were and what resulting obligations existed between them. There can be little, if any, doubt that the hospital is what is known in the law as a charitable or eleemosynary institution. The purposes for which it was incorporated, according to the articles of association, were "to establish and maintain hospitals and homes, and otherwise aid and assist worthy and dependent women and children who wish to be under the care of women physicians and attendants." It has no capital stock, and no provision is made for a division of profits. Whatever property it owns is devoted to the support and management of the institution in the care of sick and dependent women and children, who pay for the benefits received according to their ability, and the money so received is used in paying the necessary expenses incident to such a institution. Its evident purpose is to aid and relieve the sick as economically as possible for the kind of attention provided, and not, like an ordinary business corporation, to earn or accumulate an income for division among its members. Indeed, it is not seriously contended that it is not a charitable corporation, or that it is not entitled to all the immunities legally incident to institutions of that character. But it is insisted that the law does not exempt it from liability for its failure to use reasonable care for the safety of its employés or servants; in other words, that the law imposes the same duty upon it in this respect that it imposes upon individuals and business corporations. The vital question is whether this contention is sound.

The defendant corporation was formed under the general incorporation law, which authorizes five or more person to associate together to form a corporation for "the establishment and maintenance of hospitals." Pub. St. 1901, c. 147, § 1. Section 4 provides that: "Such corporation, its officers and stockholders, shall have all the rights and powers and be subject to all the duties and liabilities of other similar corporations, their officers and stockholders, except so far as the same are limited or enlarged by this chapter." The chapter contains no express provision limiting or enlarging "the duties and liabilities" of hospitals, in any respect material to the present inquiry. If they are exempt from liability in cases of this character, the legislative intention to that effect, which determines their powers and duties, must be found inferentially from a consideration of the peculiar purposes they were formed to accomplish. Their powers and duties are the same as those of "other similar corporations." It should be noted in this connection that the defendant was not incorporated for the purpose of carrying out the provisions of an express trust in reference to property or money donated under a limited deed of trust. It holds its property under its charter for the general purposes of a hospital. It is a charitable institution whose powers and duties in the management and expenditure of its funds is unlimited, except so far as they are governed and defined by the general charitable purposes of its incorporation. It is therefore unnecessary to consider what its legal liability might be if it held funds upon a trust which expressly or by necessary inference exempted them from being appropriated to the payment of damages suffered through the negligence of its officers or servants. Many of the cases which either hold or state argumentatively that a charitable body is not liable for its torts proceed upon the theory that its funds are held upon a special trust, that to use them for the payment of damages in an action of tort against it would be an unwarranted diversion thereof, and that such an action is not maintainable, because it would be entirely futile. Such seems to be the doctrine of, although not necessarily the holding in, Heriot's Hospital v. Ross, 12 C. & F. 507. In that case Lord Cottenham says, with reference to the payment of damages for the tort of a charitable body (page 513): "It is obvious that it would be a direct violation, in all cases, of the purposes of a trust, if this could be done; for there is not any person who ever created a trust fund that provided for payment out of it of damages to be recovered from those who had the management of the fund. No such provision is made here. There...