Lusk v. United States Fidelity & Guaranty Co

• Decision Date: 27 January 1941
• Docket Number: 17069
• Citation: 199 So. 666
• Parties: LUSK v. UNITED STATES FIDELITY & GUARANTY CO
• Court: Court of Appeal of Louisiana — District of US

199 So. 666

LUSK v. UNITED STATES FIDELITY & GUARANTY CO

No. 17069

Court of Appeal of Louisiana, Orleans.

January 27, 1941

Gordon Boswell and A. M. Suthon, both of New Orleans, for appellant.

Spearing McClendon & McCabe, of New Orleans, for appellee.

OPINION

McCALEB Judge.

The plaintiff, Mrs. Catherine Suzette, widow of John Lusk brought this suit against the defendant, United States Fidelity & Guaranty Company, the public liability insurer of Touro Infirmary Association, to recover damages for the personal injuries she sustained on May 15, 1934, when she fell on the floor of the corridor situated on the second story of the building owned and operated by the infirmary. The Touro Infirmary has not been made a party to the action and plaintiff is proceeding directly against its insurer by authority of the provisions of Act 55 of 1930.

The pertinent allegations of plaintiff's petition are that, on May 15, 1934, she visited Touro Infirmary in company with a sick friend; that, after leaving the hospital ward, to which her friend had been assigned, she fell to the floor of the corridor of the second story of the infirmary building; that the fall she sustained was due to the unusual, unsafe and unexpected slipperiness of the corridor floor; that she had no previous warning of its dangerous condition and that the Touro Infirmary was negligent in that its employees had waxed the floor but had failed to rub it down which caused it to be exceedingly slippery and unsafe.

It is further averred that the defendant, United States Fidelity & Guaranty Company, had issued to Touro Infirmary a certain insurance policy known as an owners, landlords and tenants' public liability policy, which policy was in full force and effect at the time of the accident, whereby the defendant had agreed to pay on behalf of the infirmary all claims for damages for which it was legally liable arising from bodily injury accidentally suffered by any person on its premises and caused by its ownership, maintenance or use of the premises or by reason of the conduct of its business; that the personal injuries suffered by plaintiff are directly attributable to the negligence of the infirmary and that therefore the defendant, as its insurer, is liable to her.

The defendant admits the happening of the accident and that it is the insurer of the Touro Infirmary. It denies, however, any and all responsibility to the plaintiff on the following grounds: (1) that Touro Infirmary is a charitable institution and cannot be held liable for the torts of its agents and servants and that therefore the defendant, as its insurer against legal liability, is likewise not responsible; (2) that the accident to plaintiff was not caused through the negligence of the Touro Infirmary, its agents or employees; (3) alternatively, that, if it should be found that Touro Infirmary was at fault in any particular, then plaintiff is nevertheless not entitled to redress for the reason that she was merely a licensee and not an invitee upon the infirmary's premises and (4) alternatively, that plaintiff was guilty of contributory negligence barring her recovery.

After a trial of the case on the foregoing issues, there was judgment in favor of the defendant, dismissing plaintiff's suit. Wherefore this appeal.

The first contention of the defendant that it is not responsible as the insurer of Touro Infirmary because the infirmary is a charitable institution and as such is not liable for the torts of its agents and servants is not tenable. The doctrine of immunity of a charitable institution, which is founded upon considerations of public policy, is applicable only in cases where the injured person is shown to be a recipient of the benefits of the charity. See Bougon v. Volunteers of America, La.App., 151 So. 797. The plaintiff in this case was merely visiting a sick friend who was confined in the hospital and she was in no sense a beneficiary of the institution. Moreover, even if she had been, the defense interposed is one which is personal to the hospital itself and cannot be availed of by the defendant insurance company. See Messina v. Societe Francaise De Bienfaissance, etc La.App., 170 So. 801, and Rome v. London & Lancashire Indemnity Co., La.App., 169 So. 132. Disposal of the foregoing point leads us to a discussion of the facts of the case. In support of her demand, plaintiff testified as follows: That about 9 a. m. on the day of the accident, she, in company with a sick friend, Mrs. Catherine Green, and the latter's niece and nephew, Miss Bernadine Murphy and Louis Schneider, went to the Touro Infirmary for the purpose of entering Mrs. Green as a patient of the institution; that, upon their arrival, they were met by an attendant of the infirmary who put Mrs. Green in a rolling chair and took her to Ward Z, which is situated on the second floor of the main building; that she accompanied Mrs. Green to the ward and assisted in undressing and preparing her for bed; that, after she had put Mrs. Green to bed, she walked out of the ward to the corridor where she was joined by Mr. Schneider and that, after she had taken two or three steps from the door which leads into the corridor, she slipped upon the floor and broke her arm. Plaintiff's testimony, with respect to the manner in which the accident happened, is...