Hope v. Barnes Hospital

• Decision Date: 20 December 1932
• Docket Number: No. 22306.,22306.
• Citation: 55 S.W.2d 319
• Parties: JAMES C. HOPE (DECEASED EMPLOYEE), NANCY C. HOPE (DEPENDENT), RESPONDENT, v. BARNES HOSPITAL (EMPLOYER), APPELLANT.
• Court: Missouri Court of Appeals

55 S.W.2d 319

JAMES C. HOPE (DECEASED EMPLOYEE), NANCY C. HOPE (DEPENDENT), RESPONDENT, v. BARNES HOSPITAL (EMPLOYER), APPELLANT.

No. 22306.

St. Louis Court of Appeals. Missouri.

Opinion filed December 20, 1932.

Appellant's Motion for Rehearing overruled, December 28, 1932.

Writ of Certiorari denied by Supreme Court, February 8, 1933.

Appeal from the Circuit Court of the City of St. Louis, Division No. 3. — Hon. Moses Hartmann, Judge.

AFFIRMED.

Lewis, Rice, Tucker, Allen & Chubb for appellant.

(1) Appellant Barnes Hospital is a charitable institution under the laws of the State of Missouri. Buchanan v. Kennard et al., 234 Mo. 117, 143; Nicholas v. Evangelical Deaconess Home and Hospital, 219 S.W. 643, l.c. 646, 281 Mo. 182; Adams v. University Hospital, 122 Mo. App. 675, l.c. 688. (2) Appellant Barnes Hospital is exempt from liability for injury because its funds, being held in trust for charitable purposes, may not be diverted. Eads v. Y.M.C.A., 29 S.W. (2d) 701, l.c. 706, 325 Mo. 577; Adams v. University Hospital, supra, l.c. 684; Whittaker v. St. Luke's Hospital, 137 Mo. App. 116; Nicholas v. Evangelical Deaconess Home & Hospital, supra; Roberts v. Kirksville College of Osteopathy & Surgery, 16 S.W. (2d) 625. (3) The Missouri Workmen's Compensation Act neither alters the nonliability of appellant, a charitable institution, nor includes it within the scope and purview of the act. (a) The Workmen's Compensation Act is "substitutional" in character and is not intended to impose liability upon institutions such as appellant which were exempt from all liability at common law. Kemper v. Gluck, 21 S.W. (2d) 922, l.c. 923; DeMay v. Liberty Foundry Co. et al., 37 S.W. (2d) 640, l.c. 645, 327 Mo. 495; McKenzie v. Missouri Stables, Inc., 34 S.W. (2d) 136, l.c. 138, 225 Mo. App. 64; Langston v. Selden-Breck Construction Co., 37 S.W. (2d) 474, l.c. 477, 225 Mo. App. 531; Lincoln Memorial University v. Sutton (Tenn.), 43 S.W. (2d) 195. (b) The purpose of the Workmen's Compensation Act does not contemplate the inclusion of appellant Barnes Hospital, a charitable institution, within its scope. Betz v. Columbia Telephone Co., 24 S.W. (2d) 224, l.c. 227, 224 Mo. App. 1004; Stone v. Blackmer & Post Pipe Co. et al., 27 S.W. (2d) 459, 460, 224 Mo. App. 319; Adams v. University Hospital, 122 Mo. App. 675, l.c. 685; R.S. 1929, sec. 4999; R.S. 1929, Chap. 32, Art. 10; R.S. 1929, secs. 575, 602, 9550, 9743, 10,116, 14,323, 14,327; Constitution of the State of Missouri, Art. X, sec. 6; Laws of 1927, sec. 76, p. 522; 1 Schneider — Workmen's Compensation Law (2 Ed., 1932), Vol. 1, sec. 1, pp. 1-3. (c) It has been uniformly held where charitable institutions are exempt from liability at common law that the Legislature, in order to include charitable institutions within the purview of a compensation law, must clearly express its intent to do so. Zoulalian v. New England Sanatorium & Benevolent Ass'n (Mass.), 119 N.E. 686; Thurston County Chapter, American National Red Cross v. Department of Labor and Industries of Washington (Wash.), 7 Pac. (2d) 577.

Wm. R. Schneider and J.J. Cooney for respondent.

(1) All Missouri employers and employees are presumed to have elected to accept the Missouri Workmen's Compensation Act unless within a class specially excepted from the operation of the act (R.S. 1929, sec. 3300). (2) Section 3303, Revised Statutes 1929, specifically mentions the employers excepted from the act, and charitable employers are not among the exceptions. (3) Barnes Hospital is an employer within the meaning of the statute (R.S. 1929, sec. 3304 (a)). (4) The Compensation Act automatically becomes a part of the employees' contract of employment (State ex rel. v. Commission, 320 Mo. 893, 8 S.W. (2d) l.c. 899; Schneider on Workmen's Compensation (2 Ed.), sec. 9, p. 87. (5) Charitable organizations have always been held liable on their contracts, regardless of the trust fund theory, 11 C.J. 374. (6) The Missouri Workmen's Compensation Law creates new rights and remedies where none existed under the common law and it extinguishes defenses which existed under the common law. (a) Employee guilty of contributory negligence could not recover at common law, and this defense of the employer is now existed. (b) The defense of fellow servant is no longer available and an employee is now entitled to recover compensation even though injured through the negligence of a fellow servant. (c) An employee is now entitled to recover compensation for injury in the course of his employment, even though he knew of its dangers, and the defense of assumption of risk is extinguished by the Compensation Act (R.S. 1929, sec. 3302 (d); Kemper v. Gluck (Mo.), 21 S.W. (2d) 922, 39 S.W. (2d) 300). (7) The common-law trust fund theory as applied to charities was adopted in Missouri, as in many other states, under the mistaken impression it was still the common law of England. While that theory originated in England, it was also very promptly discarded there. The trust fund theory is emphatically denounced in most American jurisdictions. There is no authority for permitting that recently promulgated and discarded common-law trust fund theory to prevail over or be considered superior to an express statutory enactment such as is found in the Missouri Workmen's Compensation Law: R.S. 1929, sec. 330. "Every employer and every employee shall be conclusively presumed to have elected to accept the provisions of this chapter."

Nagel, Kirby & Shepley, Green, Henry, Remmers & Dearmont, M.W. Feuerbacher, John C. Tobin and Eliot, Blayney & Bedal as Amici Curiae.

(1) Charitable institutions have always been favored in Missouri. Const. Mo., Art. X, Sec. 6; Adams v. University Hospital, 122 Mo. App. 675, l.c. 684-685 (K.C. 1907). (2) It was not the intention of the Legislature to include charitable organizations within the terms of the Workmen's Compensation Act. (a) The Compensation Act is substitutional in character. Secs. 3300, 3301, R.S. 1929; Guillod v. Kansas City Power & Light Company, 224 Mo. App. 382 (K.C. 1929); Ray v. School District of Lincoln, 105 Neb. 456, 219 N.W. 899 (1920). (b) The Compensation Act was only intended to cover workmen engaged in business or industry. Sec. 3303, R.S. 1929; Cochran v. Wilson, 287 Mo. 210, l.c. 224 (Div. 2, 1921); Sec. 3308, R.S. 1929. (c) The terms of the Compensation Act are not applicable to charitable organizations. Sec. 3302, R.S. 1929. (3) To hold that charitable organizations are within the scope of the Compensation Act would be contrary to public policy. Whittaker v. St. Luke's Hospital, 137 Mo. App. 116, l.c. 120 (St. L., 1908); Eads v. Young Women's Christian Association, 325 Mo. 577 (Div. 2, 1930).

BENNICK, C.

This is a case in which, as the issues are drawn on this appeal, the sole question involved is whether or not a charitable organization or institution falls within the purview of our Workmen's Compensation Act (Secs. 3299-3376, R.S. 1929; 12 Mo. St. Ann., Secs. 3299-3376, pp. 8229-8294).

The proceeding for compensation is by Nancy C. Hope, the dependent widow of James C. Hope, who died on May 17, 1930, as the result of an injury sustained by accident arising out of and in the course of his employment by Barnes Hospital, in the City of St. Louis. The latter's status as a charitable institution under the laws of this State is not questioned.

After an extended hearing before one of the referees of the commission, the referee, on February 17, 1931, entered his award, finding in favor of the claimant, and against the employer. Total compensation was allowed in the sum of $4,305, the same representing the death benefit plus an allowance for funeral expenses.

Among the statements of fact and rulings of law filed by the referee at the time of the entry of his award were the following:

"That the employer was a major employer (employing more than ten employees regularly), and up to the time of the accident had never filed a rejection of the act, therefore it automatically becomes bound by its provisions.

"It is contended by the employer that as it is engaged in a charitable undertaking it is exempt from the provisions of the Compensation Act, this would be true if this action was based upon tort, but not being an action in tort, and the law not exempting such institutions from its provisions, it is bound by its provisions unless it files a rejection in accordance with the law."

An application for a review by the full commission was filed by the employer; and upon such review, after the taking of additional testimony, the full commission, on July 18, 1931, entered its final award, affirming the award theretofore entered by its referee. Owing to the failure of the employer to have insured its liability under the act or to have satisfied the commission of its ability to have carried its own liability, the commission ordered the award to be commuted and made payable to the claimant in a lump sum.

Thereafter the employer appealed to the circuit court, wherein, on December 7, 1931, the award of the commission was affirmed; and from the judgment entered, the employer's appeal to this court has followed in the regular course.

Based upon the fact that at common law, as our courts have interpreted it, a charitable institution is exempted from liability for its torts, the employer argues, as also do the amici curiae, that our compensation act neither alters that rule of nonviability, nor does it include charitable institutions within its scope and purview; that the purpose of the act is to cover workmen engaged in business or industry; that it was not the intention of the Legislature to bring charitable institutions within the terms of the act; and that to hold that such institutions may be liable for compensation under the act would be to run contrary to established public policy.

It is quite true that in this State charitable institutions have been held exempt at common law from liability for their torts, upon...