Messina v. Societe Francaise De Bienfaissance Et D'assistance Mutuelle De La Nouvelle Orleans

• Decision Date: 30 November 1936
• Docket Number: 16331
• Parties: MESSINA v. SOCIETE FRANCAISE DE BIENFAISSANCE ET D'ASSISTANCE MUTUELLE DE LA NOUVELLE ORLEANS et al
• Court: Court of Appeal of Louisiana — District of US

170 So. 801

MESSINA v. SOCIETE FRANCAISE DE BIENFAISSANCE ET D'ASSISTANCE MUTUELLE DE LA NOUVELLE ORLEANS et al

No. 16331

Court of Appeal of Louisiana, Orleans.

November 30, 1936

Rehearing denied Jan. 11, 1937.

Spearing McClendon, McCabe & Schmidt and O. H. Dabezies, all of New Orleans, for appellants.

Lewis R. Graham and Harry R. Cabral, both of New Orleans, for appellee.

WESTERFIELD Judge. JANVIER, Judge (concurring), McCALEB, Judge (concurring).

OPINION

WESTERFIELD Judge.

This is an appeal by the Societe Francaise De Bienfaissance et D'Assistance Mutuelle de la Nouvelle Orleans (to which we shall hereafter refer as the French Hospital) and its insurer, the United States Fidelity & Guaranty Company, from a judgment of the civil district court in favor of the plaintiff, Rose Messina, For $2,500, against both appellants in solido.

The suit is one for damages, ex delicto, and is based upon the alleged incompetency and negligence of Richard Young, an externe, connected with the French Hospital, in the administration of treatmint, prescribed by plaintiff's doctor, and known as hypodermatoclysis.

In her original petition plaintiff charged that the French Hospital was operated for revenue; that she was a patient in the institution, paying the usual hospital charges; that on February 27, 1934, she was operated on by her physician, Dr. Graffagnino; that following the operation an externe named Young gave her a hypodermatoclysis, which consisted of the injection of a fluid in her thighs; that the liquid used in this treatment was too hot, causing burns on her legs, with consequent suffering, loss of income from her profession as a trained nurse, and expenses, for which she claimed $30,755; that Young, whose negligence caused her injury, acted for the hospital as "vice principal" and not as the agent of plaintiff's doctor in the administration of the hypodermatoclysis, which treatment was given in pursuance of the hospital undertaking to furnish all necessary treatment for its patients.

To this petition defendants filed exceptions of no right or cause of action based upon alleged insufficiency of allegation.

The exceptions were maintained and plaintiff allowed to amend, which she did by filing a supplemental petition in which the allegations held to be essential were incorporated. Thes supplemental petition was filled on the 15th day of March, 1935, which was more than one year, which was apparently overrruled. The case was then tried on its merits by a jury, which, by a vote of nine to three, brought in a verdict for plaintiff for $2,500.

We will first consider the exception of no cause of action. In the case of Congdon v. Louisiana Sawmill Company, 143 La. 209, 78 So. 470, 471, in which the plaintiff sought to hold the defendant responsible for the negligent and unskillful act of a physician employed by defendant to treat injured and sick employees, it was said: "Under the decisions, the employer can be made to respond in damages in such a case only in the event that he fails to exercise ordinary care in the selection of the physician, or in the event that he derives a pecuniary profit out of the fund employed for hospital or medical purposes."

In the case of Jordan v. Touro Infirmary, 123 So. 726, this court, quoting freely from the Congdon Case, held that the doctrine of respondeat superior, as expressed in our law by article 2320 of the Revised Civil Code, has no application to hospitals which have not been established for making money or profit, but have benevilent and charitable purposes, notwithstanding the fact that certain classes of patients were required to pay for hospital accommodations and medical attention.

The basis of the argument on the exception of no cause of action is that, since the original petition did not charge that the hospital was operated for profit, but for revenue, which is said to be a term of entirely different import, and because it failed to charge that the hospital authorities had not exercised due care in the selection of its exerne, Dr. Young, or that he was incompetent or that he was an agent or employee of defendant, it was fatally defective, and that therefore the petition to amend was improperly allowed because a petition which fails to set forth a cause of action is no petition at all, and therefore there is nothing to amend. Tremont Lumber Company v. May, 143 La. 389, 78 So. 650, and West Orleans Beach Corporation v, Martinez, 180 La. 31, 156 So. 165.

In answer to this contention it is sufficient to say that the Tremont Lumber Company v. May and West orleans Beach Corporation v. Martinez cases were expressly overruled in Reeves v. Globe Indemnity Company, 185 La. 42, 168 So. 488, 491.

The plea or prescription is based upon the following language found in Tremont Lumber company v. May, supra: "Where a cause of acyion es stated for the first time in a supplemental petition must be considered to be the beginning of the original petition."

The supplemental petition in this case having been filed more than one year after the date of the plaintiff's alleged injuries, which form the basis of this suit, her claim is said to be prescribed. The statement in the Tremont Case concerning the effect of the filing of a supplemental petition which, for the first time , sets forth a cause of action, is a corrollary of the holding in this and the West Orleans Beach Corporation Case to the effect that a petition which fails to state a cause of action cannot be amended. See Terzia v. Grand Leader, 176 La. 151, 164, 145 So. 363. In Reeves v. Globe Indemnity Company, supra, it was geld that prescription was interrupted by the filing of a petition which failed to state a cause of action: "It is our opinion that the original petition of the plaintiff, even though it be held to imperfectly set forth a cause of action ex de licto, sufficiently apprised the defendant of the nature of the plaintiff's claim or demand, so as to have the effect of interrupting prescriptions."

The plea or prescription is not well found ed and must be overruled.

Hostpitals with respect to their liability to patients for malpractice gave been divided into three classes-public, private eleemosynary, and strictly private. Concerning the first class, it has been universally held that such institutions being created and owned by the state or its subdivisions state hospitals, city hospitals, reformatories, etc.-are governmental agencies created for the purpose of discharging a public duty, in that they protect society from unfortunate individuals and those deficient in mental capacity or morals' consequently the rules applicable to municipal corporations and public offices in general are applied. The doctrine of respondeat superior has no application to such institutions.

With regard to the second class, that is to say, those institutions which are administered by private individuals dispensing public charity, many authorities hold to the doctrine of immunity from liability for tort upon somewhat different grounds, however, chiefly because of what is known as the "trust fund doctrine," to the effect that the funds of such institutions are not to be diverted to other than charitable uses. to this class of hospitals, by what may be said to be the weight of authority, the doctrine of respondeat superior does not apply. The fact that a hospital which has been organized for benevolent and charitable purposes makes a charge for a certain class of its patients on a per diem basis does not affect its character as a charitable institution or take it out of the rule so as to make it liable for negligent acts its staff, nurses, internes, externes, ect., even as to claims made by pay patients where its entire receipts are devoted to benevolent and charitable purposes. Jordan v. Youro Infirmary, supra.

The third class of hospitals-private ones conducted for profit-are liable to patients and to strangers for the negligence of their servants. Ruling Case Law, Verbo "Hospital, volume 13, page 957 et seq., Corpus Juris, Verbo "Hospotals," volume 30, page 465 et seq.

We are relieved of the necessity of determining the proper classification of the French Hospital, for the moment at least, because of the fact that one of the codefendants in this case, the United States Fidelity & Guaranty Company, which has undertaken for a consideration, to underwrite the liability of the French Hospital for claims made against it, such as this one, cannot avail itself of defenses based upon public policy concerning governmental agencies for the discharge of public functions. Rome v. london & Lancashire Indemnity Company 9la.App.) 169 So. 132.

Turning our attention to a consideration of the puestion of negligence on the part of the employees of the French Hospital, the theory of plaintiff's suit is that the externe Young, who administered the hypodermatoclysis, was the servant of the defendant hospital for whose negligence or conduct it is liable. Our attention is called to our opinion in the Jordon Case, wherein we held that "a nurse furnished to patients in a hospital is not its servant within the meaning of article 2320 of the Civil Code, while performing duties in the operation room under the orders of the surgeon, and therefore the hospitals is not responsible for the errors and negligence of such nurse while so engaged." (Syllabus by the Court.) An analogy is sought to be drawn between the externe in this case and the nurse in the Jordan Case. We believe, however, that the Jordan Case is not apposite here, for the reason, in the first place, that the Touro Infirmary was held to be a charitable institution and, in the second place, the facts were different. It was there held that a nurse, though in the regular employ of a...