Morrison v. Henke

• Decision Date: 05 December 1916
• Parties: MORRISON v. HENKE ET AL.
• Court: Wisconsin Supreme Court

165 Wis. 166

160 N.W. 173

MORRISON

v.HENKE ET AL.

Supreme Court of Wisconsin.

Dec. 5, 1916.

Appeal from Circuit Court, La Crosse County; E. C. Higbee, Judge.

Action by George Morrison against W. A. Henke, B. W. Mast, and the La Crosse Hospital Association. Judgment for defendant the La Crosse Hospital Association dismissing the cause as to the other defendants, and plaintiff appeals. Affirmed.

Action to recover damages for alleged negligent treatment of plaintiff following an operation for appendicitis while a patient at the defendant hospital. The defendants Henke and Mast were surgeons of La Crosse who performed the operation on plaintiff while at the hospital. They were not agents or servants of the hospital, but came in, as other doctors or surgeons did, to treat patients desiring their services. The case was tried to a jury, and they found: (1) That the sores on plaintiff's leg were caused by a burn from a hot-water bottle placed in his bed at the hospital; (2) that the nurses placed in charge of plaintiff were incompetent; (3) that the defendants Henke and Mast were wanting in the exercise of ordinary care in permitting such nurses to attend the plaintiff after the operation; (4) that such want of ordinary care was the proximate cause of plaintiff's injury; (5) that the nurses who had charge of plaintiff were wanting in the exercise of ordinary care in their care and attendance upon him; (6) that such want of ordinary care was a proximate cause of plaintiff's injury; and (7) damages in the sum of $700.

The court set aside the third finding on the ground that there was no evidence in support thereof, found Henke and Mast free from negligence, and dismissed the case as to them. He also dismissed the action against the La Crosse Hospital Association on the ground that, being a charitable institution, the doctrine of respondeat superior did not apply to it. From a judgment entered accordingly, the plaintiff appealed.Baldwin & Bosshard, of La Crosse, for appellant.

Lees & Bunge, Wolfe, Wolfe & Reid, and McConnell & Schweizer, all of La Crosse, for respondents.

VINJE, J. (after stating the facts as above).

We have examined the evidence relative to the alleged negligence of Henke and Mast, and are satisfied that the court properly set aside the finding that they were wanting in the exercise of ordinary care in permitting the nurses to attend plaintiff after the operation.

[1] There is no evidence to show that if the nurses were incompetent--a fact by no means clearly established--the doctors knew or were chargeable with knowledge of such incompetency. They were not hired by the doctors, but by the defendant hospital, and no fact is shown coming to the knowledge of the doctors sufficient to put them upon inquiry as to the nurses' competency. In the absence of such fact they had a right to assume they were competent.

[2] The court also properly dismissed the action as to the defendant La Crosse Hospital Association. The evidence shows that it is an eleemosynary institution paying no dividends and is largely supported by charitable donations; that the fees charged from patients able to pay does not support it, and that the weekly charge made to the plaintiff was not enough to cover the cost of the services rendered to him.

The authorities in this country almost uniformly hold that, in the absence of any negligence in their selection, charitable hospitals are not liable to their patients for the torts of their employés. McDonald v. Massachusetts General Hospital, 120 Mass. 432, 21 Am. Rep. 529;Powers v. Massachusetts Homeopathic Hospital, 109 Fed. 294, 47 C. C. A. 122, 65 L. R. A. 372;Thornton v. Franklin Square House, 200 Mass. 465, 86 N. E. 909, 22 L. R. A. (N. S.) 486;Downes v. Harper Hospital, 101 Mich. 555, 60 N. W. 42, 25 L. R. A. 602, 45 Am. St. Rep. 427;Pepke v. Grace Hospital, 130 Mich. 493, 90 N. W. 278;Farrigan v. Pevear, 193 Mass. 147, 78 N. E. 855, 7 L. R. A. (N. S.) 481, 118 Am. St. Rep. 484, 8 Ann. Cas. 1109;Hearns v. Waterbury Hospital, 66 Conn. 98, 33 Atl. 595, 31 L. R. A. 224;Jensen v. Maine Eye & Ear Infirmary, 107 Me. 408, 78 Atl. 898, 33 L. R. A. (N. S.) 141;Taylor v. Protestant Hospital Association, 85 Ohio St. 90, 96 N. E. 1089, 39 L. R. A. (N. S.) 427;Adams v. University Hospital, 122 Mo. App. 675, 99 S. W. 453;Gable v. Sisters of St. Francis, 227 Pa. 254, 75 Atl. 1087, 136 Am. St. Rep. 879;Schloendorff v. Society of New York Hospital, 211 N. Y. 125, 105 N. E. 92, 52 L. R. A. (N. S.) 505, Ann. Cas. 1915C, 581;Nicholson v. Atchison, T. & S. F. Hospital Association, 97 Kan. 480, 155 Pac. 920, L. R. A. 1916D, 1029;Duncan v. Nebraska Sanitarium & B. Association, 92 Neb. 162, 137 N. W. 1120, 41 L. R. A. (N. S.) 973, Ann. Cas. 1913E, 1127;Wharton v. Warner, 75 Wash. 470, 135 Pac. 235;St. Paul's Sanitarium v. Williamson (Tex. Civ. App.) 164 S. W. 36;Perry v. House of Refuge, 63 Md. 20, 52 Am. Rep. 495; 2 Cooley on Torts, 1011-1013; 1 Jaggard on Torts, 184; 2 Dillon, Mun. Corp. § 974; 6 Cyc. 975; 5 R. C. L. 374 et seq.; 13 R. C. L. 944 et seq. See, also, notes in 23 L. R. A. 200;2 L. R. A. (N. S.) 556;7 L. R. A. (N. S.) 481;32 L. R. A. (N. S.) 62;52 L. R. A. (N. S.) 505; and L. R. A. 1916D, 1029.

In Abston v. Walden Academy, 118 Tenn. 24, 102 S. W. 351, 11 L. R. A. (N. S.) 1179, and in Parks v. Northwestern University, 218 Ill. 381, 75 N. E. 991, 2 L. R. A. (N. S.) 556, 4 Ann. Cas. 103, the same immunity was applied to schools. In Fire Ins. Patrol v. Boyd, 120 Pa. 650, 15 Atl. 553, 1 L. R. A. 417, 6 Am. St. Rep. 745, immunity was held to exist as against a stranger to the patrol who was injured by its servants. But in McInerny v. St. Luke's Hospital Association, 122 Minn. 10, 141 N. W. 837, 46 L. R. A. (N. S.) 548, and Hewett v. Woman's Hospital Aid Association, 73 N. H. 556, 64 Atl. 190, 7 L. R. A. (N. S.) 496, defendants were held liable to their servants for failure to perform nondelegable duties which as masters they owed them. Liability has also been enforced in favor of strangers or employés. Basabo v. Salvation Army, 35 R. I. 22, 85 Atl. 120, 42 L. R. A. (N. S.) 1144;Hordern v. Salvation Army, 199 N. Y....