Koenig v. Milwaukee Blood Center, Inc.

• Decision Date: 31 March 1964
• Citation: 127 N.W.2d 50,23 Wis.2d 324
• Parties: Claude W. KOENIG, Appellant, v. MILWAUKEE BLOOD CENTER, INC., a corporation, et al., Respondents.
• Court: Wisconsin Supreme Court

Page 50

127 N.W.2d 50

23 Wis.2d 324

Claude W. KOENIG, Appellant, v. MILWAUKEE BLOOD CENTER, INC., a corporation, et al., Respondents.

Supreme Court of Wisconsin.

March 31, 1964.

Alfred J. Sapiro, Kersten & McKinnon, Milwaukee, of counsel, for appellant.

Wake, Prosser, Zimmermann & Quale, J. R. Wiedabach, Foley, Sammond & Lardner, James P. Brody, John R. Collins, Milwaukee, for respondents.

BEILFUSS, Justice.

Issues

1. Does furnishing of blood for a transfusion by a hospital constitute a sale so as to give rise to an action for breach of warranty?

2. Do the pleadings or affidavits in opposition to motion for summary judgment set forth facts sufficient to warrant a trial on a cause of action for negligence arising prior to the abrogation of the doctrine of charitable immunity?

3. Do the provisions of the insurance policies purchased by the Hospital and the blood supplier constitute waivers of charitable immunity?

Breach of Warranty

The amended complaint of the plaintiff alleges a cause of action for breach of warranty against the Hospital but not against the Blood Center. Therefore, we neither discuss nor decide whether a cause of action for breach of warranty could be asserted against the Blood Center which collected the blood and furnished it to the Hospital.

The plaintiff was given blood and plasma by hospital personnel upon the direction of a physician while a patient at the Hospital for treatment of injuries received in an automobile accident. A specific charge of $30 was made for the blood and transfusion with right to a rebate of $15 if the blood was replaced. Plaintiff contends that the furnishing of the blood constituted a sale under the Sales Act, that the Hospital impliedly warranted that the blood and plasma or serum was fit and proper for use by the plaintiff, that he relied thereon, and that it was devoid of injurious or harmful substance. The Hospital, in addition to its denial of these allegations, contends that the transfusion was an incidental part of an overall contract for the rendering of personal services rather than a sale of commodities.

The statute relied upon by plaintiff is sec. 121.15(1), which provides:

'Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment * * *, there is an implied warranty that the goods shall be reasonably fit for such purpose.'

Whether a blood transfusion administered by a hospital constitutes a sale of goods or rendition of a service has not been heretofore determined by this court.

The majority rule of the cases of other state courts is that the administering of a blood transfusion to a patient by a hospital is not a sale within the meaning of the Uniform Sales Act and, therefore, cannot be the basis of an action for implied warranty.

In PERLMUTTER V. BETH DAVID HOSP. (1954), 308 N.Y. 100, 123 N.E.2D 792,¹ the plaintiff alleged that he was given a blood transfusion containing jaundice viruses. The majority of the New York Court of Appeals held:

'* * * The essence of the contractual relationship between hospital and patient is readily apparent; the patient bargains for, and the hospital agrees to make available, the human skill and physical materiel of medical science to the end that the patient's health be restored.

'Such a contract is clearly one for services, and, just as clearly, it is not divisible. Concepts of purchase and sale cannot separately be attached to the healing materials--such as medicines, drugs or, indeed, blood--supplied by the hospital for a price as part of the medical services it offers. * * *

'The supplying of blood by the hospital was entirely subordinate to its paramount function of furnishing trained personnel and specialized facilities in an endeavor to restore plaintiff's health. It was not for blood--or iodine or bandages--for which plaintiff bargained, but the wherewithal of the hospital staff and the availability of hospital facilities to provide whatever medical treatment was considered advisable. The conclusion is evident that the furnishing of blood was only an incidental and very secondary adjunct to the services performed by the hospital and, therefore, was not within the provisions of the Sales Act. * * *

'* * * And, indeed, semantics apart and looking at the transaction for what it actually is, there can be no doubt that, when one goes into a restaurant, he does so in order to buy what the restaurant in truth has to sell, namely, food. That is not so, though, when one enters a hospital as a patient; he goes there, not to buy medicines or pills, not to purchase bandages or iodine or serum or blood, but to obtain a course of treatment in the hope of being cured of what ails him.'

In Betehia v. Cape Cod Corp. (1960), 10 Wis.2d 323, 103 N.W.2d 64, we held that a patron of a restaurant injured by a chicken bone in a chicken sandwich purchased by and served to him in a restaurant did state a cause of action for breach of implied warranty under the sales statute. The Betehia Case must be distinguished. As stated in Perlmutter v. Beth David Hosp., supra, the purpose of entering the restaurant was to buy food and the purpose of a patient entering a hospital is to receive professional technical treatment and care to restore his health.

We conclude that the furnishing of blood, plasma, or serum and the administering of these substances to a patient while in a hospital for treatment for illness or injury is only an incidental part of his main purpose for being there, namely, to obtain professional advice and care to regain his health. Even though there may be a specific and separate charge for a blood transfusion it is not a sale but a part of an overall service. The acts of the hospital being a service and not a sale do not give rise to an action for breach of implied warranty.

The trial court, consistent with the authority of cases of other jurisdictions, ² did not distinguish between a sale or service but reasoned that the same facts could constitute either a breach of implied warranty or negligence and that reasons for the doctrine of charitable immunity should apply to either cause of action.

Although the result reached in this instance is the same, we adopt the rule that a blood transfusion, administered by a hospital, is a service rather than a sale.

Negligence

The trial court properly concluded from the affidavits submitted on the motions for summary judgment that both defendants, the Hospital and the Blood Center, were in fact charitable institutions. The plaintiff does not now take issue with this finding.

In Kojis v. Doctors Hospital, supra, the doctrine of charitable immunity was abrogated as defense to negligent acts of charitable organizations and institutions to all causes of action arising after January 10, 1961. The facts upon which plaintiff relies occurred between August 9, 1958 and September 7, 1958. The doctrine of charitable immunity was, therefore, still existent at times material in this action.

The plaintiff does not seriously contend that the doctrine of charitable immunity is not a good defense to common law negligence of the Hospital and the Blood Center. He does contend that the facts here go beyond the protection of the charitable immunity doctrine. He argues that the doctrine of res ipsa loquitur should apply and that both defendants were negligent per se by reason of violation of the 'pure food and drug' statute, sec. 97.25, Stats.

In support of this position plaintiff cites Wilson v. Evangelical Lutheran Church (1930), 202 Wis. 111, 230 N.W. 708, holding charitable institutions liable as owners of a public building for violation of the safeplace statute, and Smith v. Congregation of St. Rose (1953), 265 Wis. 393, 61 N.W.2d 896, which refused to extend the doctrine of charitable immunity to bar an action for nuisance.

The doctrine of res ipsa loquitur does not create any new or different type of rights. In cases where the doctrine of res ipsa loquitur is applied the principal inquiry is still negligence. The doctrine is only a procedural devise involved in those instances where defendant had exclusive control of the instrumentality causing the damage and the accident, which would not ordinarily have occurred without negligence on the part of the defendant. The procedural requirement is then that the defendant go forward with the proof to show he was not negligent. Even if we held that the doctrine of res ipsa loquitur could be used in this case, the inquiry is still negligence of the kind that is subject to the defense of charitable immunity.

Sec. 97.25(1) and (4), Stats., known as the Pure Food and Drug Act, provides:

'(1) Adulteration. No person shall sell any drug or food which is adulterated. * * *

'(4) Drugs. A drug is adulterated: (a) If when sold under...