Humphreys v. McComiskey, 1213
| Decision Date | 06 January 1964 |
| Docket Number | No. 1213,1213 |
| Citation | 159 So.2d 380 |
| Parties | Elsa Carazo HUMPHREYS v. Dr. Arthur J. McCOMISKEY et al. |
| Court | Court of Appeal of Louisiana — District of US |
Roger H. Fellom, New Orleans, for plaintiff-appellant.
Walter M. Barnett, Moise W. Dennery, Morris Wright, Leonard B. Levy, New Orleans, for defendant-appellee.
Peter H. Beer, Montgomery, Barnett, Brown & Read, New Orleans, for defendant-appellee.
Before YARRUT, SAMUEL and TURNER, JJ.
The plaintiff in this case, Mrs. Elsa Carazo Humphreys, checked into the Touro Infirmary, a hospital operated in the City of New Orleans, for the purpose of having a tonsillectomy on November 9, 1960. She selected her personal physician, Dr. Arthur J. McComiskey, as her surgeon to perform said operation. She claimed that in the performance of the operation Dr. McComiskey negligently cut the top of her uvula off, which resulted in very serious permanent injuries to her physical and mental welfare for which she claimed the sum of $100,000.00 from Dr. McComiskey and his insurer.
On November 9, 1961, exactly one year after her operation, she filed this suit. By supplemental and amended petition filed November 7, 1962, based upon information revealed in Dr. McComiskey's answer, she sought to join Touro Infirmary and its insurer, Employers Mutual Liability Insurance Company of Wisconsin, as additional defendants. Touro Infirmary filed an exception of no cause or right of action and a motion for summary judgment. In support of the latter, it filed an affidavit by its president, Walter M. Barnett. This affidavit set forth in detail the charitable, non-profit and eleemosynary character of the institution and stated that 'all of the professional personnel and other employees rendering service to patients at Touro Infirmary are all fully qualified and competent in their particular and special fields and were all carefully selected on the basis of proper qualifications and training'. The plaintiff filed no opposing affidavits and offered no contradictory evidence. Based upon the pleadings and this affidavit the district judge maintained the motion for summary judgment and dismissed the suit as to Touro Infirmary.
The plaintiff has appealed from this judgment and seeks to have us set same aside claiming that Touro did not meet the burden of proving that it is a charitable institution and that it failed to prove that the plaintiff's injuries resulted from circumstances which would exempt it from liability under the doctrine of charitable immunity. The plaintiff, however, has not seriously pursued these points, but in any event the ruling of the district court on that point was correct. The defense of charitable immunity has been held applicable in this state to eleemosynary institutions which have selected their employees and agents with due care. D'Antoni v. Sara Mayo Hospital, 144 So.2d 643; Thibodaux v. Sisters of Charity of the Incarnate Word, 11 La.App. 423, 123 So. 466.
LSA-C.C.P. Art. 966 provides that, '* * * The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.'
As plaintiff has failed to offer any evidence in contravention of that offered by this defendant, it can only be assumed that there was no dispute as to any fact therein set forth. That affidavit, offered by Touro, fully sets out the charitable nature of this institution and states that due care had been used in the selection of the employees and agents of the hospital. Acceptance of these facts as true entitled Touro Infirmary to the immunity accorded charitable institutions in this state.
The plaintiff has not pointed out any theory on which Touro might be held liable under the stated factual situation as to its immunity.
The Employers Mutual Liability Insurance company of Wisconsin, the insurer of...
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...Quick v. High Point Memorial Hospital, Inc., 269 N.C. 450. 152 S.E.2d 527 (1967).12 The rule in Louisiana is similar. Humphreys v. McComiskey, 159 So.2d 380 (La.App.1964). However, the state insurance code provides for direct action against the insurer. LaR.S.A. 22-655. And it has been held......
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