Roosen v. Peter Bent Brigham Hosp.

• Decision Date: 28 February 1920
• Parties: ROOSEN v. PETER BENT BRIGHAM HOSPITAL (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

235 Mass. 66

126 N.E. 392

ROOSEN

v.PETER BENT BRIGHAM HOSPITAL (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 28, 1920.

Appeal from Superior Court, Suffolk County.

Actions by Henry Roosen, administrator, against the Peter Bent Brigham Hospital. From orders sustaining demurrers to the declarations, and from judgments rendered on the demurrers, plaintiff appeals. Judgments for defendant affirmed.

William G. Thompson and Romney Spring, both of Boston, for appellant.

R. G. Dodge, of Boston, and C. F. Choate, 3d., of Southboro, for appellee.

RUGG, C. J.

These are two actions, one to recover for the death and the other for the conscious suffering of Jennie Roosen, the plaintiff's intestate, caused by injuries sustained by her while she was a patient in the hospital conducted by the defendant. The specific act alleged as that out of which the actions arise was careless and negligent treatment of the patient, while at the hospital for a surgical operation and the subsequent convalescence, in that corrosive sublimate, a deadly poison, was administered to her in place of Epsom salts, a harmless drug. Distinctive allegations of several counts charge corporate negligence of the defendant in employing incompetent servants, whose conduct caused the harm, and in causing the receptacles containing corrosive sublimate and Epsom salts, drugs which closely resemble each other in appearance, to be and remain in near proximity to each other. Another count alleges the combined negligence of those in charge of the drugs and of the nurse in administering the poison. Another count avers an oral contract with the defendant whereby it promised, in consideration of weekly payments to it in advance, to perform an operation and to provide for the use of the plaintiff' intestate, a bed and board and to give her ‘careful and proper care and treatment,’ and breach of that contract by giving her ‘careless and improper care and treatment.’

That the defendant is a public charitable corporation established for the care of sick and indigent persons is not controverted. The fact that it receives compensation from some of its patients does not affect in any respect its character or liability as a public charity. New England Sanitarium v. Stoneham, 205 Mass. 335, and cases cited at 342, 91 N. E. 385, 387. All such payments are devoted exclusively to charitable uses and not at all for private gain.

It was decided in McDonald v. Massachusetts General Hospital, 120 Mass. 432, 21 Am. Rep. 529, that there could be no recovery in an action of tort for injuries received through negligence of the servants or agents of a public charity such as is a hospital. The principle of immunity there stated was that a charitable corporation of that nature ‘has no funds which can be charged with any judgment which he [the plaintiff] might recover, except those which are held subject to the trust of maintaining the hospital.’ That decision was affirmed in Benton v. Boston City Hospital, 140 Mass. 13, 17, 1 N. E. 836,54 Am. Rep. 436, which, however, went on the ground that the defendant, although a corporation, was in truth but an agency of the city of Boston and that, as a municipality, it could not be held liable for negligence of its servants in the performance of a function undertaken by it as a department of government, on the authority of Hill v. Boston, 122 Mass. 344, 23 Am. Rep. 332. In Farrigan v. Pevear, 193 Mass. 147, 78 N. E. 855,7 L. R. A. (N. S.) 481, 118 Am. St. Rep. 484, an action of tort for negligence of servants of a private charity, it was said, after relying upon McDonald v. Massachusetts General Hospital, ubi supra, as an authority exonerating the defendant:

‘Among the reasons given for this exemption it has been said, that being a charitable institution rendering services to the public without pecuniary profit, if the property of the charity was depleted by the payment of damages its usefulness might be either impaired or wholly destroyed, the object of the founder or donors defeated, and charitable gifts discouraged; or that if an individual accepts the benefit of a public charity he thereby enters into a relation which exempts his benefactor from liability for the negligence of servants who are employed in its administration, provided due care has been used in their selection.’

In holding in Zoulalian v. New England Sanatorium & Benevolent Association, 230 Mass. 102, 119 N. E. 686, L. R. A. 1918F, 185, that the Workmen's Compensation Act, St. 1911, c. 751, part 1, does not apply to a public charitable corporation, it was said, 230 Mass. 105, 106,119 N. E. 687, L. R. A. 1918F, 185:

‘It never has been held in this commonwealth that a charitable institution was liable for negligence; on the other hand, it has been expressly held that such institutions are not liable for the negligence of their servants or agents.’

To the same general point is Thornton v. Franklin Square House, 200 Mass. 465, 86 N. E. 909,22 L. R. A. (N. S.) 486. In Conklin v. John Howard Industrial Home, 224 Mass. 222, 112 N. E. 606, the plaintiff sought to recover for personal injuries received by him, while in the employ of the defendant, by reason of the defective condition of a woodchopping machine with which he was set at work without adequate instruction or warning. That was an allegation of corporate negligence as distinguished from negligence of servants or agents. It is a duty of an employer, which is personal and cannot be delegated, both to furnish safe appliances to his servant and to warn inexperienced employés of dangers known to the employer and not obvious and not known to the servant. Moynihan v. Hills Co., 146 Mass. 586, 16 N. E. 574,4 Am. St. Rep. 348;Erickson v. American Steel & Wire Co., 193 Mass. 119, 125, 78 N. E. 761;Ryan v. Fall River Iron Works Co., 200 Mass. 188, 192, 86 N. E. 310;Wheeler v. Wason Manufacturing Co., 135 Mass. 294, 298.

The specific ground on which the immunity of hospitals for negligence of servants rests has been discussed only in McDonald v. Massachusetts General Hospital, 120 Mass. 432, 21 Am. Rep. 529, among our adjudications. That decision was put squarely on the foundation that the funds of a public hospital are devoted to a charitable trust and that to subject them to the payment of a judgment for negligence of its servants would be an unlawful diversion of the trust. That is the ground upon which that decision rests. No other is suggested in the opinion. In Farrigan v. Pevear, 193 Mass. 147, 78 N. E. 855,7 L. R. A. (N. S.) 481, 118 Am. St. Rep. 484, several grounds were referred to, but the chief point settled in that case was that a private charity stood in respect of liability for negligence of its servants on the same footing as a public charity and so far as concerns binding authority it rested upon McDonald v. Massachusetts General Hospital, 120 Mass. 432, 21 Am. Rep. 529.

The case at bar presents, as one of its main questions, whether a hospital can be held liable for the negligence of its managing officers in selecting incompetent servants and agents. In McDonald v. Massachusetts General Hospital, 120 Mass. 432, 21 Am. Rep. 529, occurs this cautious statement:

‘The liability of the defendant corporation can extend no further than this; if there has been no neglect on the part of those who administer the trust and control its management, and if due care has been used by them in the selection of their inferior agents, even if injury has occurred by the negligence of such agents, it cannot be made responsible.’

In substance this has been repeated in several subsequent decisions and in numerous adjudications by other courts where that decision has been cited. That sentence now is seized upon as basis for the argument that such a charitable corporation as a hospital should be held liable in damages for negligence of its managing officers in selecting incompetent subordinate agents. That sentence, however, was merely precautionary. It bounded the question presented by the facts then before the court. It simply showed the extent of the decision. It does not purport to be a comprehensive or exclusive statement. The correlative assertion, to the effect that there is liability of the hospital in cases where there has been carelessness on the part of the managers in the selection of servants and agents, is neither expressed nor implied. The discussion of the question now presented must be approached in the light of McDonald v. Massachusetts General Hospital, 120 Mass. 432, 21 Am. Rep. 529, as a binding authority. There is no sound distinction in reason between the liability of a hospital for the negligence of its inferior agents and its liability for the carelessness of its managers. The conduct of both relates to the execution of the charity. The inferior agents usually work for pay, while the managing officers as matter of common knowledge generally undertake the administration of the public charity without compensation, solely out of public spirit in a desire to serve the general welfare. If the hospital is held responsible for their acts of negligence, the funds devoted to the relief of suffering humanity must be diverted in the one instance to the same extent and manner as in the other to the payment of claims wholly foreign to the purposes of the public trust. That being the ground of decision in McDonald v. Massachusetts General Hospital, 120 Mass. 432, 21 Am. Rep. 529, it is as applicable to the facts here alleged as to those there presented.

The doctrine of liability of an employer for negligence in the selection of servants is a doctrine of the law of master and servant. The master owes the general duty to his servants not to expose them to any perils not necessarily incident to his business, against which reasonable care on his part may guard them. The selection of servants is a function of the master. It is a part of his general obligation to employ servants with whom others may...