Mullikin v. Jewish Hospital Ass'n of Louisville

• Decision Date: 05 May 1961
• Citation: 348 S.W.2d 930
• Parties: Ruby MULLIKIN, Administratrix of the Estate of Jacob Albert Demaree, Appellant, v. JEWISH HOSPITAL ASSOCIATION OF LOUISVILLE, Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 930

348 S.W.2d 930

Ruby MULLIKIN, Administratrix of the Estate of Jacob Albert

Demaree, Appellant, v. JEWISH HOSPITAL ASSOCIATION OF LOUISVILLE, Kentucky, Appellee.

Court of Appeals of Kentucky.

May 5, 1961.

Rehearing Denied Sept. 29, 1961.

Fred J. Karem, Karem & Karem, Louisville, for appellant.

J. Donald Dinning, McElwain, Dinning, Clarke & Winstead, Louisville, for appellee.

BIRD, Chief Justice.

Jacob Albert Demaree was a patient in appellee's hospital. It is alleged in this action that he died from injuries received when he fell from his hospital bed. It is charged that these injuries resulted from the negligence of the hospital, its agents, servants and employees.

In answer to the charges of negligence the operators of the hospital first asserted that the complaint failed to state a claim upon which relief can be granted. Secondly, the allegations of negligence were denied in toto.

The third defense is as follows:

'Defendant is and was at all times herein mentioned, a non-stock, nonprofit corporation organized under the laws of Kentucky purely for charitable purposes, and no one derives any pecuniary or other profit or gain from its operations, and defendant is not and cannot be under any liability to plaintiff on account of any alleged negligence of itself, its agents, servants or employees.'

A motion to strike the third defense was overruled. The complaint was dismissed when claimant declined to plead further. Thus this appeal.

There is only one question to be answered on this appeal. Is the quoted third defense a valid one? We have long held that it is and have gone so far as to say that any change in the rule should be made by the legislature. Forrest v. Red Cross Hospital, Ky., 265 S.W.2d 80. This Court has for years been asked to reappraise the predicates of our doctrine of immunity. Despite our repeated declarations of immunity these actions continue to come to this Court on appeal. We cannot charge this to the attorneys' ignorance of our decisions. The claimants' lawyers have been quite candid with the Court. They have consistently pointed to the law as it is written but they have just as consistently argued that the rule has lost its predicate. The learned trial judge ruled in exact conformity with the case law of this state but we have nevertheless concluded to take another look.

Much has been written about the tort immunity of charitable institutions but it seems that the late Justice Gus Thomas covered the Kentucky position rather well in Cook v. John N. Norton Memorial Infirmary, 180 Ky. 331, 202 S.W. 874, 875. There we stated our position as follows:

'An examination of the authorities has convinced us that a purely charitable institution, such as defendant's hospital is described in the pleadings to be, is not amenable to its patients, although paid ones, for any damages which they may have sustained growing out of alleged negligence, although such negligence might consist in the violation by the hospital of some duty imposed either by an express or an implied contract. The cases dealing with the subject seem to treat the cause of action as one sounding in tort, although the liability, if any, was created by the negligent failure on the part of the hospital to observe some alleged contractual duty, which is analogous to the rule applied to common carriers in suits by their passengers who sustain contractual relations the one with the other, although the suit is generally treated as one sounding in tort. Bearing this in mind, we find the rule whereby such institutions are absolved from liability thus stated in 13 R.C.L. p. 945:

"Immunity in all cases of tort has been claimed for them on the following grounds: (1) Public policy; (2) that the assets or funds of the institution are impressed with a trust for charitable purposes and may not be diverted to other use; (3) that in so far as concerns patients voluntarily entering, whether as pay or as charity patients, they impliedly waive all claim for injuries and assume the risk thereof.' * * *

'The first ground found in the excerpt from R.C.L. supra--that of public policy--upon which a number of courts base their opinions holding the defendant in this character of case not liable, is upon the theory that such institutions are inspired and supported by benevolences and devote their assets and all their energies to the relief of the destitute, the sick, and the needy, and that the common welfare requires that they should be encouraged in every way and be exempt from liability from this character of action; that, if it should be otherwise held, it would operate to discharge the charitably inclined from donating or founding such institutions and might utterly destroy them, thus indirectly casting the burden of doing so upon the state. * * *

'The trust fund doctrine proceeds upon the idea that the trust created by the founders of the institution as augmented by receipts from pay patients constitutes a charitable trust fund, and that, if it should be diverted to the payment of judgments which might be obtained in damage suits against the institution, the purposes of the charity, as well as its donors, would be frustrated, and the charity itself most likely eventually destroyed, and that such a result was never contemplated by the founders or those who in any manner donated to the institution. * * *

'The theory of the 'implied waiver' doctrine is that one who accepts the benefits, accommodations, and services of such an institution enters into a relation with it whereby he agrees to exempt it from liability for the negligence of any of its servants in administering the charity, and that the patient thereby assumes the risk growing out of any negligent act of any of those connected with administering the affairs of the institution. * * *

'While not called upon to take a position relative to the merits or demerits of all of the three respective theories above referred to as grounds for excusing the institution from liability in this character of case (although the first and second ones have been adopted by this court, as we shall see), we are not averse to saying that each of them to our minds is founded upon sound logic and convincing reasoning, * * *.'

In approving the three grounds for immunity our Court asserted that each of them 'is founded upon sound logic and convincing reasoning.' Though we have continued to follow the rule of immunity there has been much debate concerning the accuracy of this statement. It is here, we think, that right and expediency met in combat, expediency emerging as victor. Only from a premise of expediency could reason lead to such a conclusion as reached in Cook v. John N. Norton Memorial Infirmary, supra, and other cases with like holdings. It has not been right, is not now right, nor could it ever be right for the law to forgive any person or any association of persons for wronging any other person. Forgiveness is the prerogative of the Lord and of the person against whom the wrong is done or upon whom the injury has been inflicted. Criminal law sometimes provides that the chief executive or other representative of the state may pardon a person for his wrong against organized society but nowhere does the criminal law immunize any person or group of persons against punishment for violation of the criminal laws if those persons are capable of acting wilfully. The general rule of civil law, and the correct rule, is that those capable of doing negligent acts must answer in damages for injuries done by those acts. When there is negligence the rule is liability. Immunity is an exception. The rule is that charity is no defense to tort. Immunity of charitable institutions such as we have in this case is indeed an exception which seems to have crept into our law under the pressure of expediency. Upon applying the simple test of right and wrong we are forced to the conclusion that the charitable nature of a wrongdoer should create no exception to the rule of liability. Nor is there any reason under the rule of right why the principle of respondeat superior should not apply.

This jurisdiction has not been alone in its waywardness. Many state jurisdictions have, upon the same or part of the same grounds, adopted the doctrine of charitable immunity. Many of those same jurisdictions have reversed these holdings. In so doing some have said substantially that reason did not support the position originally taken while others have sought to explain the change of position by pointing out the differences of today and yesterday.

Let us look at Parker v. Port Huron Hospital, 361 Mich. 1, 105 N.W.2d 1, 12. There it was said as follows:

'The immunity rule arose at a period in our society's development when charity typically operated on a small scale. Most gifts to charity were private, not corporate. Charitable needs were always poorly satisfied. It made sense in that period to hold that all gifts to charity should go to the purposes for which they were given, and not to outsiders who were by accident injured in the administration of the charity. This was a deliberate choice, designed to encourage gifts to charity by assuring the giver that his gift would be used as he intended.

'Today charity is big business. It often is corporate both in the identity of the donor and in the identity of the donee who administers the charity....