Jurjevich v. Hotel Dieu

• Decision Date: 01 February 1943
• Docket Number: 17850.
• Citation: 11 So.2d 632
• Court: Court of Appeal of Louisiana — District of US
• Parties: JURJEVICH ET AL. v. HOTEL DIEU.

11 So.2d 632

JURJEVICH ET AL. v. HOTEL DIEU.

No. 17850.

Court of Appeal of Louisiana, Orleans.

February 1, 1943

Rehearing Denied March 1, 1943.

Porteous Johnson & Humphrey, Clarence F. Favret, Chas. I Denechaud, Sr., and Chas. I. Denechaud, Jr., all of New Orleans, for appellant.

Brian & Brian, of New Orleans, for appellees.

WESTERFIELD Judge.

Mrs. Mary Jurjevich, widow of John M. Anticich, on her own account and as tutrix of the minors, Anna Marguerite Anticich, Andrew Roy Anticich and Louis Henry Burns Anticich, brought this suit against the Hotel Dieu claiming an aggregate of $15,000 as damages due to the death of John M. Anticich, said to have been caused by the mistreatment given Anticich while a patient in the Hotel Dieu by its superintendent and other employees. The petition alleges that Captain John M. Anticich was admitted to the Hotel Dieu on Saturday afternoon, July 12, 1941, suffering from the results of a gunshot wound in his right chest; that for a period of nine days thereafter Captain Anticich appeared to respond to the treatment prescribed by his private physician, Dr. P. B. Salatich; that shortly after noon on July 21, 1941, Dr. Salatich removed a quantity of blood which had accumulated in the patient's chest; that about 2 p. m. on the same day the patient became delirious "whereupon Sister Agatha, a member of the Defendant Corporation and of the Society of the Daughters of Charity of St. Vincent DePaul, who was in charge of the hospital at the time, disregarding the physician's instructions as to administering a sedative, called First Precinct Police Station stating that there was a crazy man at large in the hospital, endangering the lives and safety of other patients, which was an exaggerated statement of the conditions, and asked for assistance in subduing him"; that in response to the telephone call four or five policemen repaired to the Hotel Dieu and forcibly replaced Captain Anticich in his bed and shackled his ankles and handcuffed his wrists in compliance with a request of Sister Agatha; that he was placed on the floor of a police van, clad only in his hospital nightgown in an extremely weakened condition and perspiring profusely; that he was conveyed to the City Hospital for Mental Diseases and upon arriving there was placed on a wooden bench in the office of the Superintendent while an argument was in progress over his admission to the hospital; that he was finally rejected by the hospital for Mental Diseases and after repeated attempts to obtain accommodations at the other hospitals, was sent to the Charity Hospital in an ambulance where he died fifteen minutes later; that the death of Captain Anticich, which occurred at about 7:20 p. m. on the evening of July 21, 1941, at the Charity Hospital, was directly caused by the "reckless and wanton ill-treatment to which he was subjected on the orders and under the supervision of the said Sister Agatha, who was acting in (within) the scope of her duties as Superintendent of the defendant corporation".

The defendant filed exceptions of no right and of no cause of action which were overruled. It then answered admitting the salient facts as alleged in the petition, but denied that it had mistreated Captain Anticich, averring that what it had done in connection with his removal was necessary because of the violence of Captain Anticich, who could not be subdued by nurses, orderlies and internes of the Institution; that he threatened all those who attempted to approach him with bodily harm and actually stabbed one of the internes in the abdomen with an "infusion needle", which had been inserted in his side under the direction of Dr. Salatich. Finally, defendant averred in the alternative what it had relied upon in support of its exceptions of no cause and of no right of action, that if the agents and employees of the defendant may be said to be guilty of any negligence or wrongdoing, it is not responsible therefor, because it is a non-profit corporation, wholly charitable in its purpose, consequently, under the jurisprudence of this state, it is not liable for the wrongful acts of its employees and servants unless it had been careless or negligent in their selection or employment and that all members of its staff had been chosen with great care and after thorough examination and that, so far as Sister Agatha is concerned, she has had seventeen years of hospital experience and has been connected with Hotel Dieu for the past six years.

There was judgment in favor of plaintiff as follows: $3,000 to the widow in her individual capacity, and as tutrix of her minor children $4,500 or $1,500 each a total of $7,500. The defendant has appealed and Mrs. Anticich has answered the appeal asking that the award be increased to the sum prayed for.

Considering the question first presented by the exception of no right and of no cause of action and later in defendant's answer to the effect that defendant is not liable for the results of the negligence or wrongdoing of its employees, if such employees were selected with due care, we find that there is no proof in the record and apparently no contention that the defendant was guilty of carelessness in the selection of its employees.

The next question presented is whether the defendant hospital is, in fact, a charitable institution. According to its charter, which is in evidence, it is operated by the members of the "Society of the Daughters of Charity of St. Vincent De Paul" and that it is "formed only for purposes of public utility and Charity, without any intention of speculation or individual benefit". Its objects and purposes are declared to be to "carry on and operate a Hospital for the care and treatment of the sick; whether rich or poor, and in connection therewith to give instructions, clinical and didactical, to Young Students of Trained nursing, including the issuing of diplomas therefor; and generally to do and perform any and all acts and things necessary and incidental to the proper operation and maintenance of said Hospital and said training school for nurses, all subject to such rules and regulations as the Board of Directors of the corporation may, from time to time, prescribe".

Sister Boniface, defendant's treasurer, testified that the value of its free services during the past four years was as follows:

"1938 $48,607.13

1939 61,000.00

1940 54,000.00

1941 58,000.00"

There are many pay patients and the amount of receipts from these patients are not detailed. Captain Anticich was one of the pay patients. It may be that the pay patients outnumber the charity patients, we have no information on that subject. However, according to the record no profit is made, the receipts from the pay patients being used to maintain and improve the service and facilities of the hospital.

In Jordan v. Touro Infirmary and the Hebrew Benevolent Association, La.App., 123 So. 726, 731, decided by this Court in 1922, we said:

"The answer to the argument advanced by plaintiff that the hospital fees received by the Touro from pay patients produce a profit and thereby destroy the character of the Touro as a charitable institution, at least, in so far as pay patients are concerned, is found in Pearson v. Arkansas Midland R. Co., 106 Ark. 442, 153 S.W. 595. The court said:

" 'The fact that there is a surplus on hand, which could be put out at interest, does not constitute such benefit as would change the character of the defendant's relation to its employees in the operation of the hospital. In accumulating the fund, and also in caring for the surplus, the railroad company is merely acting as trustee for its employees, and it is its duty to keep the fund, unless it becomes advisable to invest the surplus in some way.' See, also, 2 Cooley on Torts, p. 1011-1013; Hearns v. Waterbury Hospital, 66 Conn. 98, 33 A. 595, 31 L.R.A. 224; Jensen v. Maine Eye & Ear Infirmary, 107 Me. 408, 78 A. 898, 33 L.R.A.,N.S., 141; Fire Ins. Patrol v. Boyd, 120 Pa. 624, 15 A. 553, 1 L.R.A. 417, 6 Am.St.Rep. 745; Emery v. Jewish Hospital Ass'n, 193 Ky. 400, 236 S.W. 577; Burdell v. St. Luke's Hospital, 37 Cal.App. 310, 173 P. 1008; McDonald v. Massachusetts General Hospital, 120 Mass. 432, 21 Am.Rep. 529; Downs 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; Duncan v. Nebraska Sanitarium Benev. Ass'n., 92 Neb. 162, 137 N.W. 1120, 41 L.R.A.,N. S., 973, Ann.Cas.1913E, 1127; Cunningham v. Sheltering Arms, 135 A.D. 178, 119 N.Y.S. 1033; Adams v. University Hospital, 122 Mo.App. 675, 99 S.W. 453; Taylor v. Protestant Hospital Ass'n, 85 Ohio St. 90, 96 N.E. 1089, 39 L.R.A.,N.S., 427; Gable v. Sisters of St. Francis, 227 Pa. 254, 75 A. 1087, 136 Am.St.Rep. 879; Bishop Randall Hospital v. Hartley, 24 Wyo. 408, 160 P. 385, Ann.Cas.1918E, 1172; Magnuson v. Swedish Hospital, 99 Wash. 399, 169 P. 828; Powers v. Massachusetts Homeopathic Hospital [1 Cir.] 109 F. 294, 65 L.R.A. 372, writ refused 183 U.S. 695, 22 S.Ct. 932, 46 L.Ed. 394.

"In opposition to these cases, the plaintiff quotes the cases in Meyer v. McNutt Hospital, 173 Cal. 156, 159 P. 436; Glavin v. Rhode Island Hospital, 12 R.I. 411, 34 Am. Rep. 675; Stewart v. California Medical M. & B. Ass'n, 178 Cal. 418, 176 P. 46; Mulliner v. Evangelischer Diakonniessenverein, etc., 144 Minn. 392, 175 N.W. 699, and especially the case of Tucker v. Mobile Infirmary Ass'n, 191 Ala. 572, 68 So. 4, L.R.A.1915D, 1167. But, as said by our own Supreme Court, we find the great weight of authority opposed to the views expressed in the Tucker case by the Alabama court."

The Court of Appeal for the Second Circuit in Thibodaux v. Sisters of Charity of the Incarnate Word, 11 La.App. 423, 123 So. 466 470, held that the...