Ray v. Tucson Medical Center

• Decision Date: 26 March 1951
• Docket Number: No. 5262,5262
• Citation: 72 Ariz. 22,230 P.2d 220
• Parties: RAY et ux. v. TUCSON MEDICAL CENTER.
• Court: Arizona Supreme Court

Page 220

230 P.2d 220

72 Ariz. 22

RAY et ux. v. TUCSON MEDICAL CENTER.

No. 5262.

Supreme Court of Arizona.

March 26, 1951.

James Elliott Dunseath, of Tucson, and Mark Wilmer, of Phoenix, for appellants.

Darnell, Robertson & Holesapple, of Tuscon, for appellee.

PHELPS, Justice.

This is an appeal from an order of the trial court directing a verdict in favor of defendant and the judgment entered thereon, and from an order denying plaintiff's motion for a new trial.

The parties will be hereinafter designated as plaintiffs and defendant.

The facts are that defendant is a corporate charitable institution engaged in the business of operating a general hospital in the city of Tucson. The plaintiff Essie Ray on January 24, 1948, entered the defendant's hospital for care and treatment of a torn sciatic nerve from which she was suffering. By February 29th she had almost completely recovered and on that date was being conveyed from her room for a physiotherapy treatment.

The physiotherapy department where these treatments were administered to plaintiff was located in a building forming a part of the defendant's hospital some distance from the building in which plaintiff's room was located. Plaintiff had been conveyed each day from her room to this building for such treatment by means of a regular hospital 4-wheel stretcher. The stretcher is described as a metal vehicle shaped like a narrow bed, approximately 4 feet high with 4 revolving wheels which we understand to mean that all 4 wheels operate on pivots. Arrangements had been made for plaintiff's discharge upon that date and she was on her way to the physiotherapy department to take her last treatment when the accident occurred resulting in the injury of which she complains.

There was employed at the hospital at that time a nurse's aide by the name of Ella Mae Leverette who was instructed on this particular day to convey plaintiff Essie Ray upon the stretcher to the physiotherapy department for her treatment. This was the first time she had been assigned to this task and consequently the first time plaintiff had seen her.

Leading from the door of the building in which plaintiff's room was located was a ramp down which the wheel stretcher had to pass on its way to the other building. The nurse's aide sought to procure aid to get the plaintiff down the ramp but being unable to get assistance, undertook the task alone. She lost control of the stretcher on the ramp. It rolled around several times and finally turned over, throwing plaintiff upon the ground causing severe fright and shock. Plaintiff claims that soon thereafter she began to suffer and ever since has continued to suffer great pain in her upper back, shoulders and neck. It is claimed that the accident and injury occurred as a result of the negligent handling of the stretcher by Ella Mae Leverette and that defendant had failed to exercise due care in employing her as a nurse's aide.

Plaintiff have presented three questions for our consideration:

1. Did the trial court err in instructing a verdict for defendant? In other words was the evidence of such character as to justify the court in instructing a verdict for defendant?

2. Is defendant as a charitable institution liable for the negligence of its employees?

3. Upon whom did the burden of proof rest to establish due care on the part of defendant in hiring and retaining Ella Mae Leverette of whose negligence plaintiff complains?

We are definitely of the opinion that the question of whether or not defendant exercised due care in the employment of Ella Mae Leverette as a nurse's aide should have been submitted to the jury. While it is true there is no conflict in the evidence as to what investigation defendant made before employing Ella Mae Leverette as a nurse's aide, we are of the view that the evidence, taken as a whole, is of such a character as to cause reasonable men to reach entirely different conclusions as to whether defendant did or did not exercise due care in employing her. Under such circumstances the case should have gone to the jury. Bowers v. J. D. Halstead Lumber Co., 28 Ariz. 122, 236 P. 124. Negligence only becomes a question of law for the court's determination when rational minds may not draw different conclusions from the undisputed evidence. Tom Reed Gold Mines Co. v. Morrison, 26 Ariz. 281, 224 P. 822. Therefore in withdrawing the question of negligence from the jury the court committed reversible error. For this reason alone the judgment of the trial court must be reversed and remanded for a new trial.

Counsel for appellant however urges us to reconsider the question of the liability of charitable institutions for torts committed by their employees. This court declared it to be the law in this state in the two cases of Southern Methodist Hospital and Sanatorium v. Wilson reported in 45 Ariz. 507, 46 P.2d 118 and in Id., 51 Ariz. 424, 77 P.2d 458, that charitable institutions were not liable for the torts of a servant where due care had been exercised in her selection. These decisions were bottomed upon the ground of public policy.

Realizing that public policy is, in its very nature, always fluctuating, varying with customs growing out of changing social, political and economic conditions and recognizing the radical changes that have taken place in each of these fields of activity during the past two decades, we believe it not only proper but necessary that we reconsider the rule laid down in those cases.

Except in those jurisdictions where the trust fund theory was originally adopted, and before so many exceptions were incorporated into it, a study of the decisions of the verious courts of the United States upon the subject strongly suggest the conclusion that the wishes of the individual members of the courts, rather than logical reasoning, have fathered the concept that corporate charitable institutions occupy a legal status so different from that of other corporate entities that they should be immune from liability for the torts of their servants. In an effort to distinguish them from other corporations the courts have resorted to subtle refinements and sophistry. They have invoked legal fictions and engrafted restrictions upon principles of law so well established and so fundamentally just that their soundness can no longer be questioned. The confused results of these decisions reached by reasons more confusing, lead us to exclaim with Pascal 'How ludicrous is reason, blown with a breath in every direction!' For a collation of cases reflecting the various views of the courts see section 402, pages 102 to 108 inclusive of the 1951 supplement, Volume 3 of Scott on Trusts. Once having established the rule most courts have been reluctant to reconsider the principle involved and overrule their previous decisions.

In the case of President and Directors of Georgetown College v. Hughes, 76 U.S.App.D.C. 123, 130 F.2d 810, 812, decided in 1942, in which a Federal court appears to have made a most exhaustive study of the subject Justice Rutledge in appraising the results of the decisions of the courts said: 'Paradoxes of principle, fictional assumptions of fact and consequence, and confused results characterize judicial disposition of these claims. From full immunity, through varied but inconsistent qualifications to general responsibility is the gamut of decision. The cases are almost riotous with dissent. Reasons are even more varied than results. These are earmarks of law in flux. They indicate something wrong at the beginning or that something has become wrong since then. They also show that correction, though in process, is incomplete.'

There are four reasons assigned by the different courts for denying liability of corporate charitable institutions for the torts of their employees:

1. The 'trust fund' theory, i. e., that the funds and property of these institutions are held in trust and cannot be diverted to purposes other than that designated in the trust.

2. That the doctrine of 'respondent superior' cannot be extended so as to apply to charitable institutions because such institutions are not operated for profit.

3. The 'implied waiver' theory, i. e., that when one enters a hospital for treatment, he by accepting the services rendered him, waives all right to claim damages for injuries suffered as a result of the negligence of the hospital or its employees. In other words he assumes the risk of negligence.

4. 'Public policy,' i. e., that to allow recovery would be against public policy.

When boiled down to its final analysis the rule of nonliability of these institutions as declared by all of the courts so holding, has been based upon the ground of 'public policy', assigning as reasons therefor either (1) because it wrongfully diverts trust funds from the purposes for which the trust was created and if permitted would stifle charity by discouraging donations for charitable purposes by those who are charitably inclined or that (2) it wrongfully extends the doctrine of 'respondeat superior' to embrace corporations engaged in business not operated for profit; or (3) that by accepting the treatment received the patient assumes the risk of negligence and impliedly agrees to waive liability on the part of the institution for torts committed by it or its employees. While the latter is based upon the theory of an implied contract, it is upon the ground of public policy that the implied contract is claimed to arise. In the decisions based upon the implied waiver theory the Good Samaritan, first introduced into the law of these cases in Powers v. Massachusetts Homoeopathic Hospital, 1 Cir., 109 F. 294, is brought to the rostrum by the courts and made to protest against rule of law that would hold him liable in damages for the torts of his servant while he is engaged in a charitable enterprise. Yet that is exactly what the law has always done in such cases except where the Good Samaritan happens to have been a...