Rhodes v. Millsaps College

• Decision Date: 04 October 1937
• Docket Number: 32813
• Court: Mississippi Supreme Court
• Parties: RHODES et al. v. MILLSAPS COLLEGE

176 So. 253

179 Miss. 596

RHODES et al. v. MILLSAPS COLLEGE

No. 32813

Supreme Court of Mississippi

October 4, 1937

Division B

1 CHARITIES.

A charitable institution is not fully immune from suit, but is liable for injuries resulting from negligence in selecting its agents.

2 CHARITIES.

A college, not using building owned by it in collegiate work is not exempt from liability for its agents' torts in operation of such building, though revenues therefrom are devoted solely to charitable and benevolent purposes.

3 CHARITIES.

A charitable institution or corporation, entering into independent business apart from its charity solely for profit or to secure funds for its charitable purposes, is liable in tort for injuries caused by its agents' negligence in conduct of such business to same extent as private corporation.

4. Charities.

An incorporated college, given no specific power by its charter to operate building subsequently donated to it or business not connected with its charity, is subject to general law as to such operation and hence liable for injuries resulting therefrom (Laws 1890, chapter 379).

HON. J. P. ALEXANDER, Judge.

APPEAL from circuit court of Hinds county HON. J. P. ALEXANDER, Judge.

Action by Mrs. Myrtle Rhodes and others against Millsaps College. From a judgment of dismissal on plaintiffs' refusal to plead further after overruling of their demurrer to defendant's special plea, plaintiffs appeal. Judgment reversed, demurrer sustained, and cause remanded.

Reversed and remanded.

Howie, Howie & McGowan, of Jackson, for appellants.

In 1876 the Supreme Court of Massachusetts handed down the case of McDonald v. Massachusetts General Hospital, 120 Mass. 432, 21 Am. R. 529. This is said to be the pioneer case on this subject in this country, and possibly the most quoted case in the decisions. The injured here was a charity patient in a purely charitable institution, partly maintained by the government and partly by charity donations. The patient had been injured by a fall from a building in which he received a fractured thigh. After he received the charity at the hospital some year later he entered suit for malpractice. Liability was refused. It was in this case that the theory for limiting liability to the careful selection of servants and agents was at first advanced.

It is said that the McDonald case followed the case of Holliday v. Leonards, 11 C. B. (N. S.) 192, a Canadian case, which at the time had already been overruled in certain House of Lords cases. We do not deem it practical or necessary to pursue the question into this field.

Then there followed the case of Benton v. Trustees of City Hospital, from Boston, 130 Mass. 13. Limitation of liability to careful selection of servants was reiterated in this case.

The next step in the progression in Massachusetts is the case of Davis v. Central Congregational Society, 129 Mass. 367. This case was handed down only four years later than the McDonald case, that is in 1880. The plaintiff in this case, an elderly lady, while attending a conference of the Congregational Churches in the vicinity of Boston was pursuing a path from the church to the street at night, when she stumbled over an obstruction and fell on to the sidewalk and was seriously injured. In allowing liability the Supreme Court of Massachusetts said: "The application of the rules on which the defendant's liability depends is not affected by the consideration that this is a religious society and that the plaintiff came solely for her own benefit or gratification. It makes no difference that no pecuniary profit or other benefit was received or expected by the society. The fact that the plaintiff comes by invitation is enough to impose on the defendant the duty which lies at the foundation of this liability, and that too although the defendant in giving the invitation was actuated only by motives of friendship and charity, . . . and the defendant as an incorporated religious society and as owner and occupier of the premises in question, is subject to all the duties and liabilities which are incident to the ownership and possession of real estate."

Next there is the case of Smithurst v. Barton Square Church, 148 Mass. 261, handed down by the Supreme Court of Massachusetts, November, 1888. In this case the plaintiff was injured while driving his wagon in the streets of Salem by snow falling from the roof of the defendant church, which roof overhangs the street. Recovery was had and sustained in this case.

We next cite the well known Massachusetts cases of Thornton v. Franklin Square House, 200 Mass. 465, 86 N.E. 909, 22 L. R. A. (N. S.) 486; Farragan v. Pevear, 193 Mass. 147, 78 N.E. 855, 118 A. S. R. 484, 7 L. R. A. (N. S.) 481. These cases were handed down in 1904 and 1906 respectively, and both hold with the McDonald v. General Hospital case, that the charitable institutions should be held liable for the torts of their servants only in instances where they fail to exercise care in the selection thereof.

We now come to the case of Holder v. Massachusetts Horticultural Society, 211 Mass. 370, 97 N.E. 630. Plaintiff here, an employee of the institution, was injured while assisting the superintendent of the building in repairing an elevator or dumb waiter. This case was handed down in 1912. This decision had the following effect on the law in Massachusetts. First, it abrogated the theory of no liability on the part of a charitable institution to an employee. Second, it abrogated the theory of assumption of risk. Third, it established liability where the work was dissociated from the charity.

We have the case of McKay v. Morgan Memorial Coop. Industries, Inc., a Massachusetts case handed down in 1930, appearing in 172 N.E. 68. In this case the plaintiff was injured in a building where the charitable institution was carrying on a business. Liability was allowed, although the institution was a charitable institution, on the ground that it was carrying on a commercial business for profit dissociated from the charity itself.

Holder v. Mass. Horticultural Society, 211 Mass. 370, 97 N.E. 630; Foley v. Wesson Memorial Hospital, 246 Mass. 363, 141 N.E. 113.

In New York what we have called the careful selection theory was very early established.

In the cases of Van Tassel v. Manhattan Eye and Ear Hospital, 15 N.Y.S. 620, handed down in 1891, it was held that the hospital being a charitable institution was not liable. The limitation of liability to careful selection of servants was advanced and said to be the law in New York, at that time, and from the opinion: "The defendant is not liable except for the omission to give due care to the selection of its skilled employees, surgeons, et al."

Harris v. Woman's College, 14 N.Y.S. 881; Procter v. Manhattan Eye and Ear Hospital, New York, June, 1879; Pryor v. Manhattan Eye and Ear Hospital (Sp. Ct. Spec. Term, New York Co., Nov., 1890); Eibee v. Long Island Hospital (Cir. Ct. King Co., Dec. 5, 1882, unrep.).

In the case of Cunningham v. Sheltering Arms, 135 A.D. 178, 119 N.Y.S. 1033, handed down Dec., 1909, the limitation of liability to careful selection was reiterated.

The case of Hordern v. Salvation Army, 199 N.Y. 233, 92 N.E. 626, 139 A. S. R. 889, 32 L. R. A. (N. S.) 62, is a very exhaustive and lengthy opinion, which traces the history of the question involved to the various jurisdictions and especially in New York. The decision was handed down in 1910. It reiterates the careful selection theory and limits recovery thereby in instances where the plaintiff is a beneficiary of the institution sought to be sued.

Having adopted this theory of the question the courts of New York have consistently followed the same. Recovery is denied to a recipient of the charity, but a stranger may recover. Persons injured by any agency dissociated from or not connected with a charity institution may recover.

Gartland v. New York Geological Society, 120 N.Y.S. 24.

In Pennsylvania the law is the same as in Massachusetts and in New York.

Fire Ins. Patrol v. Boyd, 120 Pa. 624, 1 L. R. A. 417, 6 A. S. R. 745, 15 A. 553; Winnemor v. Philadelphia, 18 Pa. Sup. 625.

We next turn to the State of Michigan. What occurred in the other states mentioned occurred in like manner here.

Downes v. Harper Hospital, 101 Mich. 555, 60 N.E. 42, 26 L. R. A. 602, 45 A. S. R. 427; Feofees of Heriots Hospital v. Ross, 12 Clark & Finn, 507; McDonald v. Mass. General Hospital, 120 Mass. 432; Pepke v. Mich. Hospital, 130 Mich. 493; Bruce v. Central Methodist Ep. Church, 147 Mich. 230, 110 N.W. 951, 10 L. R. A. (N. S.) 74; Powers v. Massachusetts Homeopathic Hospital, 109 F. 294, 47 C. C. A. 122, 65 L. R. A. 372.

The Supreme Court of Tennessee in Gamble v. Vanderbilt University, in 1918, reported in 200 S.W. 513, completely overturned the theory of total exemption of charitable institutions in Tennessee. The plaintiff's intestate was killed by an elevator in a building in down town Nashville, which building was owned by Vanderbilt University, and a part of its endowment, a part of the building being used by the University and a part by tenants. The facts are very much the same as in the case at bar. The Supreme Court abrogated completely the question of total exemption and held the University liable.

In our sister jurisdiction of Louisiana the question took about the same course in Thibodeaux v. Sisters of Charity, etc. , 11 La. App. 423, 123 So. 466, and in Jordan v Turo Infirmary, 123 So. 726. The charitable institutions were held not liable on account of injury to patients. Then in the case of Bougon v. Volunteers of America, 151 So. 797, the court said: "Trust fund doctrine of non-liability of charitable organizations for torts of employees, as to...