Mississippi Baptist Hospital v. Moore

• Decision Date: 03 March 1930
• Docket Number: No 28482,28482
• Citation: 126 So. 465,156 Miss. 676
• Court: Mississippi Supreme Court
• Parties: MISSISSIPPI BAPTIST HOSPITAL v. MOORE

126 So. 465

156 Miss. 676

MISSISSIPPI BAPTIST HOSPITAL v. MOORE

No 28482

Supreme Court of Mississippi

March 3, 1930

Division B

. (Division B.)

1 CHARITIES. Charitable hospital is not liable for negligence of its servants and physicians selected with due care.

A charitable hospital administered solely for charity and not for profit, and which receives no profit from the operation of such institution, is not liable for the negligence of its servants and physicians, where the hospital has exercised due care and caution in selecting such agents and physicians.

2 CHARITIES. Remedy of patient injured by negligence of physician or others employed by charitable hospital exercising due care is against person causing injury.

Where a patient is injured in a charitable hospital by the negligence of an attending physician, or other employee, and where such hospital has exercised due care and caution in the employment of such physician and servant, the remedy of the person injured is against the physician or employee of the hospital whose negligence caused the injury.

3. CHARITIES. Policy indemnifying hospital against liability imposed by law for physician's malpractice held not to create right of action or impose additional liability on hospital.

Where an indemnity policy written by an insurance company in favor of a hospital has a basis to operate under the terms of the policy, and the policy has a clause providing for indemnity of the assured from "liability imposed by law upon the assured for actual damages on account of bodily injuries... by any patient or patients under treatment at the hospital described in the Schedule, in consequence of any malpractice, error or mistake occurring in the course of said treatment, during the term of this policy," the contract only indemnifies the hospital for liability imposed by law and does not create a right of action either by the hospital or the patient treated therein against the indemnity company, or insurance company, nor does it impose any additional liability upon the hospital itself in favor of the patient.

4. HOSPITALS. Plaintiff suing for negligence in taking X-ray picture, resulting in fracture not being disclosed, must prove injury would not have resulted had proper picture been made.

A plaintiff in a suit for negligence in taking an X-ray picture, by reason of which picture a fracture was not disclosed, must prove with reasonable certainty that the injury would not have resulted had a proper picture been made and proper treatment administered.

HON. W. H. POTTER, Judge.

APPEAL from circuit court of Hinds county, First district HON. W. H. POTTER, Judge.

Action by Mrs. W. T. Moore against the Mississippi Baptist Hospital. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

Judgment reversed.

Watkins, Watkins & Eager, of Jackson, for appellant.

A charitable and benevolent institution such as appellant is immune from liability to its patients for the negligence of its servants and agents where it has exercised diligence and care in the selection of competent servants.

James v. Y. & M. V. Railroad Co., 153 Miss. 770, 121 So. 819; Eastman Gardener Company v. Permenter, 111 Miss. 813, 72 So. 234; Glavin v. R. I. Hospital, 12 R. I. 411, 34 Am. Rep. 675; Lavere v. Smith's Falls Public Hospital, 35 Ont. L. Rep. 98, 26 D. L. R. 346; Cook, Admr., etc., v. Norton Memo. Infirmary, 180 Ky. 331, 202 S.W. 874; 14 A.L.R., page 583; 13 R. C. L., page 944; Nickolson v. Hospital Association, 97 Kas. 480, 155 P. 920; Davin v. Benevolent Association, 103 Kan. 48; Jordan v. Touro infirmary, 123 So. 731 (La.); Thibodaux v. Sisters of Charity, 123 So. 466 (La.); Powers v. Massachusetts Homeopathic Hospital, 109 F. 294, 47 C. C. A. 122, 65 L.R.A. 272; Burdell v. St. Luke's Hospital, 173 P. 1008 (Cal. App.); Mikota v. Sisters of Mercy, 168 N.W. 219 (Iowa); Pephe v. Grace Hospital, 90 N.W. 278, 130 Mich. 493; Corbett v. St. Vincent's Industrial School, 79 N.Y.S. 369, affirmed 68 N.E. 997, 177 N.Y. 16; Conner v. Sisters of the Poor of St. Francis, 10 Ohio St. & C. P. Dec. 86, 7 Ohio, N. P. 514; Jensen v. Maine Eye & Ear Infirmary, 107 Maine 408, 78, A. 898; Whitaker v. St. Luke's Hospital, 137 Mo.App. 116, 117 S.W. 1189; Duncan v. Nebraska Sani. Benev. Ass'n, 92 Neb. 162, 137 N.W. 1120; Gable v. Sisters of St. Francis, 227 Pa. 254, 75 A. 1087; Lindler v. Columbia Hospital, etc., 98 S.C. 25, 81 S.E. 512; Abston v. Waldon Academy, 118 Tenn. 25, 102 S.W. 351; Gitzhoffen v. Sisters of Holy Cross Hospital, 32 Utah 46, 88 P. 791; Wharton v. Warner, 75 Wash. 470, 135 P. 235; Bishop Randall Hospital v. Hartley, 160 P. 385 (Wyo.).

That appellee was a pay patient of appellant's hospital, does not change the rule in respect to appellant's immunity to liability.

13 R. C. L.; 30 C. J., p. 462; Powers v. Massachusetts Homeopathic Hospital, 109 F. 294; Taylor v. Protestant Hospital, 80 Ohio St. 90, 96 N.E. 1089.

That appellant was indemnified against liability imposed by law upon the assured does not deprive appellant of its right to immunity.

Levy v. S.Ct. of Cal., 239 P. 1100, 74 Cal.App. 177; Adams v. University Hospital, 122 Mo.App. 675, 99 S.W. 453; Gable v. Sisters of St. Francis, 227 Pa. 254, 136 Am. St. Rep. 879, 75 A. 1087; Roosen v. Peter Bent Brigham Hospital, 235 Mass. 66, 14 A.L.R. 563, 126 N.E. 392; Susman v. Y. M. C. A., 172 P. 554, 110 Wash. 487; Wharton v. Warner, 75 Wash. 470, 135 P. 235; Magnuson v. Swedish Hospital, 169 P. 828; Williams v. Church Home, 223 Ky. 355 (1928), 3 S.W.2d 753; Cook v. John N. Norton Memorial Infirmary, 180 Ky. 331, 202 S.W. 874, L.R.A. 1918E, 647; Emery v. Jewish Hospital Association, 193 Ky. 400, 236 S.W. 577; Simons v. Gregory, 120 Ky. 116, 85 S.W. 751, 27 Ky. Law Rep. 509; Levy v. Superior Court, 74 Cal.App. 171, 239 P. 1100; Adams v. University Hospital, 122 Mo.App. 675, 99 S.W. 453; Gable v. Sisters of St. Francis, 227 Pa. 254, 75 A. 1087, 136 Am. St. Rep. 879; Roosen v. Peter Bent Brigham Hospital, 235 Mass. 66, 126 N.E. 392, 14 A.L.R. 563.

Green, Green & Potter, of Jackson, for appellee.

There are two grounds upon which the courts place the exemption from liability of charitable institutions for the negligent acts of its servants.

1. That he who accepts the bounties of the charity, thereby waives a cause of action against the charity; and secondly, the so-called trust fund doctrine, and most of the authorities line up under the trust fund doctrine.

Eastman Gardiner Lumber Co. v. Permenter, 72 So. 234, 111 Miss. 813.

It is a familiar rule of law that when the reason for the rule fails, the rule itself fails. Corpus Juris lays down the rule as follows: The courts may properly refuse to follow precedents where the reasons on which such precedents were based no longer exist.

15 C. J. 954.

The supreme court of Oklahoma, in the case of Caples v. State, 104 P. 493, 26 L.R.A. (N.S.) 1033-42, laid down the rule as follows: Where the reason for a rule of law ceases, the rule should cease also.

In the case at bar the reason for the exemption does not exist since the defendant was insured and the plaintiff was not a charity patient.

Argued orally by P. H. Eager, for appellant, and by Chalmers Potter, for appellee.

OPINION

Ethridge, P. J.

Mrs. Moore was plaintiff in the court below and filed a declaration against the Mississippi Baptist Hospital, chartered and organized under the laws of Mississippi, alleging that on the day of May, 1928, plaintiff fell and injured her arm; that her attending physician advised her that he was afraid that the arm had been fractured, and it would be necessary for her to have an X-ray picture made to discover whether or not this was a fact. That the said defendant was the owner of an X-ray machine, suitable for taking pictures of the bony structure of the body from which pictures one skilled in reading X-ray pictures can tell whether or not any portion of the bony structure, so taken, is in perfect or imperfect condition, and said defendant has agents or employees in charge of said machine, whom it holds out as being experts in the taking of said pictures, and whom it holds out as being capable of taking a picture, which will disclose to one skilled in the reading of such pictures, whether or not the bone is broken.

That on the morning of the said day and date, the plaintiff requested the defendant to take an X-ray picture of her arm so that it might be disclosed whether or not the said arm was broken and the plaintiff agreed to do so, and it then and there became the duty of the defendant to use a high degree of care and caution and skill in taking said picture, so that the X-ray picture so taken would disclose whether or not the arm was broken, and to report the true facts to plaintiff as was shown by the said picture, but this the defendant wholly failed, neglected, and refused to do, but then and there negligently, and carelessly took a picture that did disclose a break in said arm, and did then and there negligently and willfully fail to disclose said condition to plaintiff. That in truth the said arm was broken, but the said picture made and shown to the plaintiff's attending physician did not show the break, and relying on the skill and care of the defendant in taking said picture, the attending physician treated said arm for a sprain, and not for a break. That had the report of the true picture been carefully and properly made, the arm would have healed properly and perfectly, but that, because of the negligence aforesaid, of the said defendant, and because said plaintiff was not treated for a fractured arm because the report of said picture failed to disclose said fracture, the said arm failed to respond to the treatment, so given it, and is now permanently and...