Sessions v. Thomas Dee Memorial Hospital Ass'n, 5665

CourtSupreme Court of Utah
Writing for the CourtMOFFAT, Justice.
Citation89 Utah 222,51 P.2d 229
PartiesSESSIONS v. THOMAS DEE MEMORIAL HOSPITAL ASS'N
Docket Number5665
Decision Date21 October 1935

51 P.2d 229

89 Utah 222

SESSIONS
v.
THOMAS DEE MEMORIAL HOSPITAL ASS'N

No. 5665

Supreme Court of Utah

October 21, 1935


Rehearing Denied October 14, 1936.

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

Action by Arvil Sessions against the Thomas Dee Memorial Hospital Association. From an adverse judgment, the plaintiff appeals.

JUDGMENT REVERSED, AND CAUSE REMANDED, WITH DIRECTIONS.

Royal J. Douglas, of Ogden, for appellant.

DeVine, Howell & Stine and A. W. Agee, all of Ogden, for respondent.

MOFFAT, Justice. ELIAS HANSEN, C. J., and EPHRAIM HANSON, J., FOLLAND, Justice, concurring. WOLFE, Justice, concurring in part, dissenting in part.

OPINION [51 P.2d 230]

[89 Utah 224] MOFFAT, Justice.

This is an action for the wrongful death of Joseph Sessions, a son of the plaintiff, about six years of age. The action is filed pursuant to the authority given by R. S. Utah 1933, 104-3-10. The complaint in substance alleges that on or about the 29th day of March, 1935, the plaintiff and his wife took their minor son to the defendant hospital as a patient for an appendectomy. The boy was taken to the hospital at the direction of the patient's physician, who was a member of the hospital staff. The defendant hospital received the patient, it is alleged, for "pay and compensation," and undertook to furnish the patient board and lodging, operating room, medicines, and competent nurses to care for him and do all things necessary and incidental to the performance of a surgical operation, and furnish care after the operation. The operation was performed, and was successful. Good health, mental and physical vigor of the patient, except for the appendix ailment, are alleged; also his ability to render aid, assistance, society, and comfort to plaintiff.

It is also alleged that the defendant is a hospital corporation organized and existing under and by virtue of the laws of the state of Utah, and that under the articles of incorporation defendant is engaged in maintaining, operating, [89 Utah 225] and conducting a general hospital business for "pay and compensation," for the care, treatment, maintenance, and comfort of sick, injured, diseased, and infirm persons, and to care for those who were to be operated and those who had been operated.

It is charged the defendant received "pay and compensation" for receiving patients, and was authorized to sue and be sued; that it had no corporate stock and did not pay dividends or profits, that its profits, if any, were used to enlarge and carry on hospital work; that while Joseph Sessions, a minor, was at defendant hospital, the attending physician ordered that the patient be given an injection consisting of 1/4 grain of codeine. That it was the duty of the nurses at the defendant hospital to administer the drug, and the supervisor of the nurses of the hospital to have control of all drugs in the hospital, including codeine and morphine, and also the duty of the supervisor of nurses to issue all drugs to be administered to patients. That the supervisor of nurses and the nurse who had charge of the patient, Joseph Sessions, were both at that time employees of the defendant hospital. It is further alleged that the supervisor of nurses had complete charge and custody of the medicine room and drugs, and the key to the medicine room; that it was the duty of the supervisor to issue drugs to the nurse and particularly the duty of the supervisor to issue to the nurse directly in charge of Joseph Sessions the codeine as ordered by the attending physician; that the supervisor of nurses negligently and carelessly permitted the attending nurse, who was then a student in training, to take the keys to the medicine room to take and prepare the prescribed codeine, and that said student nurse carelessly and negligently prepared and administered a certain poisonous narcotic drug known as morphine, and administered the same by injection to the patient instead of the prescribed codeine, and that the patient died from the effects of the morphine so administered. It is also alleged that the defendant hospital, its servants and employees failed to exercise [89 Utah 226] reasonable or ordinary skill, prudence, or care, and because of such neglect and carelessness, while the employees were acting within the scope of their employment, the morphine was administered, causing the death of the patient.

To the complaint the defendant demurred generally and specially. The special demurrer was overruled. The general demurrer attacking the complaint for want of sufficient facts to constitute a cause of action was sustained. There is no question before us relating to the special demurrer. The plaintiff elected to stand upon the complaint and refused to further plead. The cause was dismissed, and judgment accordingly entered. Plaintiff appeals.

The appellant has made assignments of error. All these go to the question as to whether the court erred in sustaining the general demurrer. The grounds and reasons urged in support of the position and ruling of the trial court by defendant and respondent are that the defendant is an eleemosynary or charitable institution, and that such institutions are not liable for the negligence of itself or its servants, agents, and employees, except negligence in the selection of its servants, agents, and employees, to wit, its nurses, and, secondly, it is further argued by defendant that it is incumbent [51 P.2d 231] upon plaintiff to plead in his complaint that the defendant is not a charitable or eleemosynary institution. Appellant controverts both situations and maintains the sufficiency of the complaint as being good against both attacks. We shall dispose of the second proposition first. The complaint alleged:

"That defendant Thomas D. Dee Memorial Hospital Association is a hospital corporation, organized and existing under and by virtue of the laws of the State of Utah, and as such, during all the time herein mentioned was engaged in maintaining, operating, and conducting a general hospital business for pay for the care, treatment, maintenance and comfort of the sick, injured, diseased, infirm persons, those who were to be operated and those who were operated, and said defendant hospital received minor children as well as adults for hospitalization. [89 Utah 227] That said defendant charged and received compensation for nursing and treating patients. That it was authorized to sue and be sued."

R. S. Utah 1933, 104-13-15, provides:

"A plaintiff suing as a corporation, * * * or in any other way implying corporate * * * capacity, need not state the facts constituting such capacity, or relation, but may aver the same generally, or as a legal conclusion, and where a defendant is sued in such capacity or relation, a plaintiff may aver such capacity or relation in the same general way."

"The authorities agree that the general allegation that the plaintiff or the defendant, as the case may be, is a corporation, organized and existing under the laws of some named state, is sufficient." 7 R. C. L. § 703.

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 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 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 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.) 161), 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.

The question which the parties have assumed or conceded to be raised by the general demurrer which in argument and submission we have been asked to decide is: Assuming it to [89 Utah 228] be the law that an eleemosynary or charitable institution is not liable for the negligence of its agents, servants, or employees except for negligence in the selection of its agents, servants, or employees, does the institution lose its eleemosynary character, and is the institution liable for negligence of its servants if it receives pay for the service rendered? The courts of this country have generally held that hospitals organized for charitable purposes are not liable to their patients for injuries from the negligence of their employees, when reasonable care is used in the selection and retention of an employee. Gitzhoffen v. Sisters of Holy Cross Hospital Ass'n, supra.

Different reasons for support of the rule are given by different courts--some put the rule upon the basis of a public policy, others, especially endowment institutions, support the rule upon the theory that a trust fund for charitable purposes should not be depleted by subjecting the endowed institution to loss of the fund because of negligence, and, lastly, others support the rule upon the doctrine of an implied waiver, that is, one who accepts a charity may not turn and rend his benefactor. It is not necessary either to cite or distinguish the cases that support the general rule or the cases that select one or more of the arguments advanced in support thereof. This case coming here on demurrer,...

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9 practice notes
  • Andrews v. Young Men's Christian Ass'n of Des Moines, No. 44403.
    • United States
    • United States State Supreme Court of Iowa
    • February 15, 1939
    ...a paying patient was negligently injured by a nurse. The Utah court in the first trial of Sessions v. Thomas Dee Memorial Hospital Ass'n, 89 Utah 222, 51 P.2d 229, rather intimated that it favored the immunity rule, but the facts were insufficient for it to pass on the question. In that cas......
  • Sessions v. Thomas D. Dee Memorial Hospital Ass'n, 5907
    • United States
    • Supreme Court of Utah
    • April 25, 1938
    ...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 respon......
  • Andrews v. Young Men's Christian Ass'n of Des Moines, 44403.
    • United States
    • United States State Supreme Court of Iowa
    • February 15, 1939
    ...a paying patient was negligently injured by a nurse. The Utah court in the first trial of Sessions v. Thomas Dee Memorial Hospital Ass'n, 89 Utah 222, 51 P.2d 229, rather intimated that it favored the immunity rule, but the facts were insufficient for it to pass on the question. In that cas......
  • Barrett v. Brooks Hospital, Inc.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 3, 1959
    ...191, 219 S.W. 643; D'Amato v. Orange Memorial Hospital, 101 N.J.L. 61, 63, 127 A. 340; Sessions v. Thomas Dee Memorial Hospital Ass'n, 89 Utah 222, 233-234, 51 P.2d 229; 4 119 A.L.R. 1022. If Hall v. College of Physicians & Surgeons, 254 Mass. 95, 149 N.E. 675, undertakes to state a con......
  • Request a trial to view additional results
9 cases
  • Andrews v. Young Men's Christian Ass'n of Des Moines, No. 44403.
    • United States
    • United States State Supreme Court of Iowa
    • February 15, 1939
    ...a paying patient was negligently injured by a nurse. The Utah court in the first trial of Sessions v. Thomas Dee Memorial Hospital Ass'n, 89 Utah 222, 51 P.2d 229, rather intimated that it favored the immunity rule, but the facts were insufficient for it to pass on the question. In that cas......
  • Sessions v. Thomas D. Dee Memorial Hospital Ass'n, 5907
    • United States
    • Supreme Court of Utah
    • April 25, 1938
    ...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 respon......
  • Andrews v. Young Men's Christian Ass'n of Des Moines, 44403.
    • United States
    • United States State Supreme Court of Iowa
    • February 15, 1939
    ...a paying patient was negligently injured by a nurse. The Utah court in the first trial of Sessions v. Thomas Dee Memorial Hospital Ass'n, 89 Utah 222, 51 P.2d 229, rather intimated that it favored the immunity rule, but the facts were insufficient for it to pass on the question. In that cas......
  • Barrett v. Brooks Hospital, Inc.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 3, 1959
    ...191, 219 S.W. 643; D'Amato v. Orange Memorial Hospital, 101 N.J.L. 61, 63, 127 A. 340; Sessions v. Thomas Dee Memorial Hospital Ass'n, 89 Utah 222, 233-234, 51 P.2d 229; 4 119 A.L.R. 1022. If Hall v. College of Physicians & Surgeons, 254 Mass. 95, 149 N.E. 675, undertakes to state a con......
  • Request a trial to view additional results

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