Rabon v. Rowan Memorial Hospital, Inc., 605

• Decision Date: 20 January 1967
• Docket Number: No. 605,605
• Citation: 269 N.C. 1,152 S.E.2d 485
• Court: North Carolina Supreme Court
• Parties: Homer D. RABON v. ROWAN MEMORIAL HOSPITAL INCORPORATED.

Page 485

152 S.E.2d 485

269 N.C. 1

Homer D. RABON v. ROWAN MEMORIAL HOSPITAL INCORPORATED.

No. 605.

Supreme Court of North Carolina.

Jan. 20, 1967.

George L. Burke, Jr., and Archibald C. Rufty, Salisbury, for plaintiff appellant.

Shuford, Kluttz & Hamlin, Clarence Kluttz, Salisbury, for defendant appellee.

SHARP, Justice:

This appeal presents only one question. Is defendant Hospital's plea of charitable immunity a valid defense to plaintiff's action? This Court has held that it is. In Williams v. Randolph Hospital, 237 N.C. 387, 389, 75 S.E.2d 303, 304, it is said:

'It is settled law in this jurisdiction that a charitable institution may not be held liable to a beneficiary of the charity for the negligence of its servants or employees if it has exercised due care in their selection and retention. Barden v. Atlantic Coast Line R.R., 152 N.C. 318, 67 S.E. 971, 49 L.R.A.,N.S., 801; Hoke v. Glenn, 167 N.C. 594, 83 S.E. 807; Herndon v. Massey, 217 N.C. 610, 8 S.E.2d 914; Johnson v. City Hospital Co., 196 N.C. 610, 146 S.E. 573; Smith v. Duke University, 219 N.C. 628, 14 S.E.2d 643.'

The specific question which Williams decided was that, under the above rule, both paying and nonpaying patients are 'beneficiaries of the charity,' a question left open in Williams v. Union County Hospital Ass'n, 234 N.C. 536, 67 S.E.2d 662.

Decided cases indicate that the present state of the law in North Carolina is as follows: A patient, paying or nonpaying, who is injured by the negligence of an employee of a charitable hospital may recover damages from it only if it was negligent in the selection or retention of such employee, Williams v. Randolph Hospital, supra, Williams v. Union County Hospital Ass'n, supra, or perhaps if it provided defective equipment or supplies. Payne v. Garvey, 264 N.C. 593, 142 S.E.2d 159. A stranger (anyone who is not a beneficiary of the charity, i.e., one other than a patient) who is injured by the negligence of Any employee, however, may collect damages from the hospital. Cowans v. North Carolina Baptist Hospitals, 197 N.C. 41, 147 S.E. 672. Nor does the fact that a charitable institution has procured liability insurance affect its immunity. Herndon v. Massey, 217 N.C. 610, 8 S.E.2d 914.

The decision in this case depends upon whether we shall continue to adhere to the rule so flatly enunciated in Williams v. Randolph Hospital, supra. Plaintiff, as have others before him, appeals for the specific purpose of requesting this Court to re-examine our rule in the light of current conditions, the tide of judicial decision elsewhere, and the general agreement among legal scholars that charitable immunity is unsupportable. See Prosser, Torts, § 127, n. 26 (3rd Ed. 1964) and President and Directors of Georgetown College v. Hughes, 76 U.S.App.D.C. 123, 130 F.2d 810, note 2, where citations to such treatises are collected. We have, therefore, decided to review our position with reference to hospitals. In so doing we begin with the exhaustively documented opinion of Justice Wiley Rutledge (then a member of the United States Court of Appeals for the District of Columbia, later a member of the Supreme Court of the United States) in President and Directors of Georgetown College v. Hughes, supra. Although the plaintiff in President and Directors of Georgetown College v. Hughes was a special nurse (stranger), the opinion encompassed the law of charitable immunity. Opinion written since this 1942 case have, with few exceptions, paid tribute to its penetration analysis of the various theories upon which courts have upheld the doctrine of charitable immunity as applied to hospitals. So completely has this question been discussed and analysed in that and succeeding cases that we recognize the futility of attempting 'to gild refind gold, to paint the lily.'

We commence, as did Justice Rutledge, by noting that liability for tortious conduct is the general rule; immunity is the exception, and charity is to common-law defense to tort. The grant of immunity from liability for the negligent acts of its servants to any charitable institution is an exception to the general principle of liability. Noel v. Menninger Foundation, 175 Kan. 751, 267 P.2d 934; Parker v. Port Huron Hospital, 361 Mich. 1, 105 N.W.2d 1; Mississippi Baptist Hosp. v. Holmes, 214 Miss. 906, 55 So.2d 142, 56 So.2d 709; Collopy v. Newark Eye & Ear Infirmary, 27 N.J. 29, 241 A.2d 276; Pierce v. Yakima Valley Memorial Hospital Ass'n, 43 Wash.2d 162, 260 P.2d 765; Adkins v. St. Francis Hosp. of Charleston, 143 S.E.2d 154 (W.Va.Ct.App.); Harper, Torts § 81 (1933); 2 Restatement, Torts §§ 323--325 (1934). Private corporations are responsible for the actionable negligence of their agents as are individuals who are also responsible for their own negligence. The physician who undertakes to treat a charity patient and neglects him must respond in damages for his malpractice; a motorist whose negligence has caused injury to his guest passenger must likewise pay. 'Whether the good Samaritan rides an ass, a Cadillac, or picks up hitchhikers in a Model T, he must ride with forethought and caution. * * * Charity suffereth long and is kind, but in the common law it cannot be careless. When it is, it ceases to be kindness and becomes actionable wrongdoing.' President and Directors of Georgetown College v. Hughes, supra, 130 F.2d at 813. A privately-owned hospital, operated by individual doctors who hope to make a profit but who render charitable service when necessary, must answer to a charity patient who has been injured by an employee. Yet today in North Carolina a laboratory technician employed by a public hospital may kill a patient with mismatched blood and the institution goes free. See Davis v. Wilson, 265 N.C. 139, 143 S.E.2d 107. Such an anomaly, in the opinion of Justice Rutledge, could have arisen only through accident, for surely '(t)he basis of the distinction cannot be charity.' President and Directors of Georgetown College v. Hughes, supra 130 F.2d at 814.

The doctrine was first declared in this country in 1876, when the Supreme Court of Massachusetts held that a charity patient, negligently injured by a student doctor, could not hold the hospital responsible if due care had been used by its trustees 'in the selection of their inferior agents.' McDonald v. Massachusetts General Hospital, 120 Mass. 432, 21 Am.Rep. 529. The rationale of the decision was that the public and private donations which supported the charitable hospital constituted a trust fund which could not be diverted to damages. As its sole authority, the Massachusetts court relied upon the English case of Holliday v. St. Leonard's, Shoreditch (1861), 11 CB (ns) 192, 142 Eng.Rep. 769, which had denied recovery against the vestry of a parish for injury caused by a defect in a highway under its control. This ruling was in turn based on a dictum by Lord Cottenham in Duncan v. Findlater (1839), 6 Clark & Fin. 894, 7 Eng.Rep. 934 (a case involving the liability of highway trustees under a public road act For negligence of third persons) and his similar dictum in Feoffees of Heriot's Hospital v. Ross (1846), 12 Clark & Fin. 507, 513, 8 Eng.Rep. 1508, 1510: 'To give damages out of a trust fund would not be to apply it to those objects whom the author of the fund had in view, but would be to divert it to a completely different purpose.' The Heriot's Hospital case did not involve personal injury but a wrongful exclusion from the benefits of the defendant charity. Soon after they were made, these rulings and the Lord Cottenham's dicta were repudiated in England by the case of Mersey Docks Trustees v. Gibbs (1866) L.R. 1 H.L. 93, 11 Eng.Rep. 1500 and by Foreman v. Mayor of Canterbury (1871) LR 6 QB 214. Thus, in holding a hospital not liable to a negligently injured charity patient, the Massachusetts court relied upon reasoning which had already been discredited. President and Directors of Georgetown College v. Hughes, supra 130 F.2d at 815--816. See Noel v. Menninger Foundation, supra; Parker v. Port Huron Hosp., supra; Bing v. Thunig, 2 N.Y.2d 656, 163 N.Y.S.2d 3, 143 N.E.2d 3; Andrews v. Youngstown Osteopathic Hosp. Ass'n, 147 N.E.2d 645, 77 Ohio L.Abs. 35 (Ohio App.); Avellone v. St. John's Hosp., 165 Ohio St. 467, 135 N.E.2d 410; Pierce v. Yakima Valley Memorial Hosp. Ass'n, supra; Annot., Charity--Tort Liability--Immunity, 25 A.L.R.2d 29, 38 (1952).

The rule in England today is that a hospital authority is liable for the negligence of its employees, including its doctors and nurses, without the necessity of alleging that any of them was not fully competent. Cassidy v. Ministry of Health (1951) 2 K.B. 343; 1 All E.R. 574 (see Comments on this case in 14 Mod.L.Rev. 504 (1951) and 17 Mod.L.Rev. 547 (1954); see also President and Directors of Georgetown College v. Hughes, supra 130 F.2d at 819). In 1885, Maryland, relying upon Massachusetts, adopted the rule of charitable immunity in Perry v. House of Refuge, 63 Md. 20, 52 Am.Rep. 495. Both courts apparently acted in ignorance of the English reversals. Thus 'they resurrected in America a rule already dead in England, and thereby gave Lord Cottenham's dictum a new lease on life in the New World.' President and Directors of Georgetown College v. Hughes, supra 130 F.2d at 816. Accord, Noel v. Menninger Foundation, supra; Mississippi Baptist Hosp. v. Holmes, supra; Collopy v. Newark Eye & Ear Infirmary, supra; Bing v. Thunig, supra; Avellone v. St. John's Hosp., supra; Flagiello v. Pennsylvania Hosp., 417 Pa. 486, 208 A.2d 193; Pierce v. Yakima Valley Hosp., supra.

In the meantime, Rhode Island, following the decision in Mersey Docks v. Gibbs, supra, had held a charitable hospital liable for negligent injuries inflicted upon a patient. Glavin v. Rhode Island Hosp., 12 R.I. 411, 34 Am.Rep. 675. Glavin was the first decision in this country holding that a charitable hospital had the same liability for negligence as a private corporation. See ...