McLeod v. St. Thomas Hospital

• Decision Date: 03 July 1936
• Citation: 95 S.W.2d 917
• Parties: McLEOD v. ST. THOMAS HOSPITAL.
• Court: Tennessee Supreme Court

95 S.W.2d 917

McLEOD v. ST. THOMAS HOSPITAL.

Supreme Court of Tennessee.

July 3, 1936.

Error to Circuit Court, Davidson County; A. B. Neil, Judge.

Action by Mrs. G. G. McLeod against the St. Thomas Hospital. Judgment for defendant, and plaintiff brings error.

Reversed and remanded, with directions.

Cornelius, McKinney & Gilbert, of Nashville, for plaintiff in error.

Trabue, Hume & Armistead, of Nashville, for defendant in error.

DAVIS, Special Judge.

This is a suit for damages for personal injuries, the plaintiff alleging that on leaving the defendant hospital, after a visit to her husband, who was a patient therein, she fell and fractured her left wrist and hip. It is alleged that the cause of the fall and injury was a floor of white tile construction, and that it was wet and slippery by reason of its construction, and that some foreign substance was on the floor. The declaration fairly alleges such condition of the floor to have been the result of the acts of the defendant corporation itself, and such condition is not alleged to have been the result of any negligence upon the part of any agent or servant of the defendant.

The defendant first filed a plea of not guilty, and later filed a special plea alleging contributory negligence of the plaintiff, and another special plea by which it is averred that the defendant is a charitable institution, incorporated for purely charitable purposes, and that all the property owned by it, and all income therefrom, is used for the general welfare and charitable purposes, and not for profit, and that such assets constitute a trust fund which cannot be appropriated to satisfy a liability for tort, and that the defendant is exempt from such liability by reason of its charitable corporation and purposes.

The defendant filed another special plea, alleging that plaintiff impliedly waived all claim for injuries, and assumed the risk of the injury, because defendant is a charitable institution.

To the special plea of exemption on the ground of being a charitable institution, plaintiff filed a replication, in which she admits that the defendant is a charitable institution, and its assets constitute a trust fund which cannot be appropriated to satisfy damages recovered for defendant's tort, but alleging that in fact defendant has a liability insurance policy, specifically described, and it is alleged that by reason thereof, the recovery to which plaintiff is entitled will be paid by the insurance company, and therefore no assets of the defendant, which constitute a trust fund, will be appropriated to the satisfaction of the recovery to be had by the plaintiff.

A further replication filed by plaintiff avers that her husband was not a charity patient of defendant, but that he entered the institution under a contract to pay for the services rendered.

To these replications the defendant filed a rejoinder in the nature of a demurrer, setting up, in effect, that the insurance policy carried by it is one to indemnify the defendant against loss in case of liability imposed upon defendant by law; that the plaintiff has no interest in such policy, and the fact that the defendant procured such a policy did not result in a change of the law which exempts this charitable institution from liability for a tort of the nature set out in the declaration.

The trial court, upon a consideration of the pleas, was of opinion that the existence of the insurance policy did not render the defendant liable in any case where it is not otherwise liable for its negligence, and that in view of the admissions in the replication already referred to, the demurrer to the replication should be sustained, and such was the judgment of the trial judge, and plaintiff's suit was dismissed. It is apparent that the only question on which the trial court acted, and dismissed the suit, was that the defendant was not liable to an action in tort, as set out in the declaration, and that the policy of liability insurance did not change the rule. Plaintiff has appealed and assigned the action of the trial court as error.

There is much debate upon the effect to be given to the fact that defendant has a policy of liability insurance. The policy is in the record. It is an ordinary liability policy, on which no right of action exists in the plaintiff, and no liability attaches to the insurance company, except on claims for damages imposed by law upon the defendant, for an accident resulting in injury or death, within the amount of liability fixed in the policy, and subject to its conditions. The insurer's liability is "for all claims for damages imposed by law" upon defendant for injury to or death of persons within or upon defendant's premises, etc. It is such policy as has been construed in Gray v. Houck, 167 Tenn. 233, 68 S.W.(2d) 117, and Associated Ind. Corp. v. McAlexander, 168 Tenn. 424, 79 S.W.(2d) 556, to be an obligation upon the part of the insurer to pay such obligation as the law may impose upon the insured, under the terms of...