Kojis v. Doctors Hosp.

• Decision Date: 10 January 1961
• Citation: 107 N.W.2d 131,12 Wis.2d 367
• Parties: Mary KOJIS, an imcompetent, by Anna Fortier, her guardian, Respondent, v. DOCTORS HOSPITAL, a Wisconsin corporation, Appellant.
• Court: Wisconsin Supreme Court

Page 131

107 N.W.2d 131

12 Wis.2d 367

Mary KOJIS, an imcompetent, by Anna Fortier, her guardian, Respondent, v. DOCTORS HOSPITAL, a Wisconsin corporation, Appellant.

Supreme Court of Wisconsin.

Jan. 10, 1961.

For Supplemental Opinion see 107 N.W.2d 292.

John A. Kluwin, Bernard J. Hankin, Milwaukee, for appellant, Whyte, Hirschboeck, Minahan, Harding & Harland, Milwaukee, of counsel.

Paulsen, Wake & Prosser, Milwaukee, for respondent, John F. Zimmermann, Milwaukee, of counsel.

BROADFOOT, Justice.

In our consideration of the action we are assuming that the defendant is a charitable hospital and operates as such. We are concerning ourselves only with the question of whether or not a charitable hospital should be exempt from liability for its own negligence or that of its agents, servants, or employees to a paying patient.

Such immunity was first recognized in Wisconsin in the case of Morrison v. Henke et al., 1917, 165 Wis. 166, 160 N.W. 173. A defendant in that case was the La Cross Hospital Association. The record disclosed that the hospital was an eleemosynary institution paying no dividends, largely supported by charitable donations, and that the weekly charge made to the plaintiff was not enough to cover the cost of services rendered to him. The court reviewed many cases in other jurisdictions, the first one being McDonald v. Massachusetts Gen. Hosp., 120 Mass. 432, which was followed in several states. In arriving at the decision in that case we said (p. 170):

'While our courts disclose great unanimity in declaring charitable hospitals immune against claims of their patients based upon the negligence of their servants, they are by no means agreed as to the grounds of immunity. Some place it upon the ground of public policy; others upon the ground that since the funds of the institutions are impressed with a trust for charitable purposes they cannot be diverted to other uses; and still others upon the ground of an implied waiver on the part of voluntary recipients of the charity of any claim for damages. Without discussing the relative merits of these different grounds, we prefer to rest our decision upon the principle that since these charitable hospitals perform a quasi-public function in ministering to the poor and sick without any pecuniary profit to themselves, the doctrine of respondent superior should not be applied to them in favor of those receiving their charitable services.'

In other words, the immunity was granted on the ground of public policy. That doctrine of immunity from tort liability was applied in several succeeding cases involving charitable and religious institutions. Other charitable hospital cases included Schumacher v. Evangelical Deaconess Society, 218 Wis. 169, 260 N.W. 476 and Schau v. Morgan et al., 241 Wis. 334, 6 N.W.2d 212. Carlson v. Marinette County, 264 Wis. 423, 59 N.W.2d 486, involved an action by a paying patient in a hospital operated by Marinette county. The county pleaded immunity on the ground that it was engaged both in a governmental function and in a charitable enterprise. We held that the county was operating its hospital in a proprietary rather than a governmental capacity and since the rate charged the plaintiff was the standard sum fixed at such amount as, with the anticipated patient load, would return revenue in excess of operating expenses as calculated by the county, it was not entitled to the charitable immunity.

It is possible, if not probable, that the present case could be disposed of in the same manner. However, we prefer to deal with the issue herein presented upon a broader basis by reviewing and re-stating our position with respect to whether or not immunity should be granted to a charitable hospital for negligence to a paying patient.

We have already limited the application of the doctrine in certain cases. In Wilson v. Evangelical Lutheran Church, 1930, 202 Wis. 111, 230 N.W. 708, we held that the immunity did not apply to a religious organization in case of breach of a statute (safe-place statute). This has been followed in Zimmers v. St. Sebastian's Congregation, 258 Wis. 496, 46 N.W.2d 820 and in Grabinski v. St. Francis Hospital, 266 Wis. 339, 63 N.W.2d 693. In Smith v. Congregation of St. Rose, 1953, 265 Wis. 393, 61...