Sessions v. Thomas D. Dee Memorial Hospital Ass'n

• Citation: 78 P.2d 645,94 Utah 460
• Decision Date: 25 April 1938
• Docket Number: 5907
• Parties: SESSIONS v. THOMAS D. DEE MEMORIAL HOSPITAL ASS'N
• Court: Supreme Court of Utah

78 P.2d 645

94 Utah 460

SESSIONS v. THOMAS D. DEE MEMORIAL HOSPITAL ASS'N

No. 5907

Supreme Court of Utah

April 25, 1938

Rehearing denied, August 8, 1938.

Appeal from District Court, Second District, Weber County, Lester A Wade, Judge.

Action by Arvil Sessions against the Thomas D. Dee Memorial Hospital Association, for the death of Joseph Sessions, a minor son of plaintiff. From a judgment for defendant, plaintiff appeals.

See also, 89 Utah 222, 51 P.2d 229.

REVERSED AND REMANDED, with directions.

Royal J. Douglas, of Ogden, for appellant.

DeVine, Howell & Stine, of Ogden, for respondent.

MOFFAT Justice. LARSON, J., WOLFE, Justice, concurring. FOLLAND, Chief Justice, HANSON, Justice, dissenting.

OPINION

MOFFAT, Justice.

It is again necessary to say this is an action for the wrongful death of Joseph Sessions, a minor son of plaintiff. The facts and principles of law relating thereto were discussed in the opinion when the case was before the court on a former appeal. It is reported in 89 Utah 222, 51 P.2d 229, 231.

The case comes before us upon a general demurrer as it did on the former appeal. It may be found necessary at times to refer to or quote parts of the opinion in the case when here on the former appeal. After stating, in general, the stated or admitted facts, this court said in relation to allegations of corporate capacity and purposes that:

"It would not appear to be necessary to plead the nature of a corporation in order to state a cause of action. A corporation is bound as to its [corporate] purposes by the statements in its articles of incorporation. Whether the articles of incorporation upon their face purport to create an organization for charity or [one] for pecuniary profit may be determined in so far as the corporation is concerned from the articles themselves, and may not be changed or modified by parol evidence; but whether a stranger may show the real character of the association by evidence aliunde the articles [of incorporation] is an open question in this state ( Gitzhoffen v. Sisters of Holy Cross Hospital Ass'n, 32 Utah 46, 88 P. 691, 695, 8 L. R. A. (N. S.) 1161), and one on which there may be diversity of opinion. Incidentally, this latter will be involved in the further discussion of the principal question. For a complaint to be good against a general demurrer, we think a plaintiff is not required to plead, in so far as corporate existence is concerned, the nature or purposes of the corporate defendant."

In the former opinion, it was also said:

"The fact that an association is organized with or without capital stock is a matter of proof, and as such may weigh for or against its claimed charitable character. So may the matter of whether the institution exacts payment for all patients, or only a part of them, or none of them. So may the manner and amount of profits or accumulations, if any, and the purposes and manner of distribution or use thereof, whether the institution may be privately owned and the nature of that ownership and use, the activity engaged in--all are matters of evidence. The use or service to which the institution devotes its property, and the ultimate ends to be attained, may be important for consideration."

The foregoing and other statements made in the opinion were directed to matters that may be considered in determining the type or character of the institution, as an institution.

After the remittitur was filed and the demurrer to the complaint was overruled in pursuance of the order of the court, the plaintiff, without waiting for the defendant to answer or set forth its character, asked and obtained permission to file an amended complaint. This was allowed. Because of the completeness with which all the facts are alleged, and the point to which the issue has been narrowed, although lengthy, it is deemed worth-while to set out much of the complaint and the exhibits as found in the transcript, condensed as much as possible consistent with retention of the historical or narrative part of the complaint, the facts alleged tending to construct a charitable institution, and the matters presenting the cause of action arising out of negligence upon which the claimed right to recover is based.

The Thomas D. Dee Memorial Hospital Association is alleged to be a corporation under the laws of Utah, and engaged in maintaining, operating, and conducting a general hospital; caring for sick, injured, diseased, and infirm persons or others for which compensation is charged and received. Other powers and purposes are indicated to be the power to acquire, own, hold, operate, and invest in and sell real and personal property. Originally the corporation was capitalized for $ 500,000 and became the owner of certain described real estate. The Thomas D. Dee Company erected the original hospital as a memorial to Thomas D. Dee.

On February 3, 1910, the heirs of Thomas D. Dee formed a corporation known as the Thomas D. Dee Memorial Hospital Association. At that time it is alleged the property was valued at approximately $ 75,000 and $ 10,000 was contributed by the citizens of Ogden for equipment. A home and a training school for nurses and student nurses has been acquired and maintained at a cost of approximately $ 35,000. In 1914 the trustees proposed to return the property to the Thomas D. Dee heirs because of want of sufficient income to continue the operation of the hospital. Learning of the proposed action of the hospital trustees, the presidency of the Weber, North Weber and Ogden Stakes of the Mormon Church offered to accept title to and assume responsibility for the continued operation and maintenance of the hospital, including assumption of the indebtedness. The offer was accepted and the property was conveyed and released from the reversion provisions of the trust and a new board of trustees was appointed by the "Trustee in Trust of the Church of Jesus Christ of Latter Day Saints," pursuant to authority so provided in the amended articles of incorporation.

It is pointed out that during the years 1932 to 1935, charitable services were rendered as follows: 1932--$ 13,913.87; 1933--$ 10,712.53; 1934--$ 9,013.94; 1935--$ 10,349.70; and that the gross income during the same period from all sources was: 1932--$ 171,814.38; 1933--$ 172,018.30; 1934--$ 201,059.07; 1935--$ 207,467.49; and that the hospital has expended large sums of money in erecting buildings and securing equipment from funds received from donations and income.

Patients who were able to pay were charged standard charges. Certain societies, by contract, have had patients cared for--especially children--at reduced rates. No dividends or profits have been paid. All resources, including donations, have been used exclusively for the payment of expenses and making improvements. There is no capital stock. No taxes have been assessed against the property or paid since 1914.

"That on or about the 29th day of March, 1934, plaintiff's minor son, to-wit, Joseph Sessions, age six years, was received at the defendant hospital as a patient, and that said defendant undertook for pay, to furnish said minor with board, lodging, operating room, medicines, competent nurses to care for him, and to perform a surgical operation upon said minor, and furnishings and care after said operation.

"That the plaintiff in this case paid the regular charges to the defendant hospital for the care of his son, Joseph Sessions, while his son was confined in said hospital, and that said patient was not a charity patient."

That immediately before the operation was commenced said minor was reduced to a state of unconsciousness by the administration of an anaesthetic and said minor's appendix was removed; that said operation was successful and said minor recovered therefrom.

"That said minor, to-wit, Joseph Sessions, at the time he was admitted to said hospital was of the age of six years, and was a strong, able-bodied boy in perfect health, both mentally and physically, except said appendix ailment, that he was capable and able to render aid, assistance, society and comfort to plaintiff. That he was capable and able to live and reach his majority and to live many years thereafter, with an expectancy to live to the age of approximately fifty-seven years, as shown by the American Mortality Table, and that during all of said time he would be capable and able to render aid, assistance, society and comfort to plaintiff."

That on or about the 30th day of March, 1934, the doctor ordered that said minor be given an injection consisting of one-fourth grain of codeine. That it is the duty of the employees of said hospital, to wit, the nurses, to administer said drug. That it is the duty of the supervisor of the nurses of said hospital to issue said drug for administering from the medicine room. That at said time and place, an employee of said hospital, who was the supervisor of nurses at the hospital, and another nurse who was an employee of said hospital, had the care of said minor, Joseph Sessions. That the supervisor of nurses, as an employee of the defendant, had full and complete charge and custody of the medicine room belonging to the defendant, which said room contains the medicines and drugs to be furnished for pay to patients of said hospital. That the supervisor of nurses at said hospital had the complete charge and custody of the keys to said medicine room.

That it was the duty of the supervisor of said nurses as an employee of defendant to issue the aforesaid codeine which was to be administered to said minor, but, notwithstanding said duty to issue said codeine, she carelessly and negligently permitted a student nurse, who was then and there training in said hospital to become a nurse, and who had only been in training...