Southern Methodist Hospital & Sanatorium of Tucson v. Wilson

• Decision Date: 17 June 1935
• Docket Number: Civil 3545
• Citation: 46 P.2d 118,45 Ariz. 507
• Parties: SOUTHERN METHODIST HOSPITAL AND SANATORIUM OF TUCSON, a Corporation, Appellant, v. MAX EUGENE WILSON, a Minor, by His Guardian ad Litem, BERYL E. WILSON, Appellee
• Court: Arizona Supreme Court

46 P.2d 118

45 Ariz. 507

SOUTHERN METHODIST HOSPITAL AND SANATORIUM OF TUCSON, a Corporation, Appellant, v. MAX EUGENE WILSON, a Minor, by His Guardian ad Litem, BERYL E. WILSON, Appellee

Civil No. 3545

Supreme Court of Arizona

June 17, 1935

APPEAL from a judgment of the Superior Court of the County of Pima. Fred W. Fickett, Judge. Judgment reversed and case remanded with instructions.

Mr Samuel L. Pattee and Mr. Tom Chambers, for Appellant.

Messrs Darnell & Nave and Mr. L. V. Robertson, for Appellee.

OPINION

LOCKWOOD, C.J.

Max Eugene Wilson, a minor, hereinafter called plaintiff, brought suit through his guardian ad litem, Beryl E. Wilson, against the Southern Methodist Hospital and Sanatorium of Tucson, a corporation, hereinafter called defendant, to recover damages for personal injuries, which were claimed to have been caused by the negligence of the defendant. It was alleged that plaintiff was seriously burned and injured through the negligence of some person or persons in defendant's employ; the particular person responsible being unknown to the plaintiff. These persons were designated by the fictitious names of Doe and Roe, and were never served; the case being conducted as one against the defendant only. The defendant answered, denying the allegation of negligence and setting up that it is, and was at all times concerned, a corporation incorporated for the conducting of a hospital and sanatorium in the city of Tucson as a charitable and religious institution, and that it at all times conducted and still conducts such hospital and sanatorium as such an institution; that it has no capital stock or stockholders, and that its affairs are conducted by a board of commissioners; that it was not organized for the purpose of profit, and is not authorized to and never has made any profit or gain whatever; that it is supported by voluntary contributions by the Methodist Episcopal Church, South, and its varied organizations, by outside contributions, and by reasonable charges made to patients whenever they are able to pay such charges; and that its entire income is expended in the conducting of its hospital aforesaid. It further alleged that at the time of the injury to plaintiff it had exercised, and at all times did exercise, due care and caution in selecting the physicians, surgeons, nurses, attendants and employees in and about its hospital. To this answer plaintiff replied, putting in issue the allegations as to the religious and charitable nature of the institution.

At the trial the following facts appeared: The mother of plaintiff, then about to be confined, had arranged with the defendant, through her physician, to be cared for at defendant's hospital during her confinement, and shortly before the birth of plaintiff was taken to the hospital. After the birth of plaintiff he was taken from the room in which he was born to another used for the purpose of caring for infants after birth, and there placed in a basket used to hold newly born infants. While in the basket, in some manner unknown to any of the witnesses who testified, he suffered a very severe burn, evidence tending to show that it occurred by reason of his contact with a hot water bottle. There was no serious denial by defendant that those burns must have been the result of the negligence of some person, and the reasonable conclusion is that it was someone employed by defendant as a nurse or attendant. The medical testimony tends to show that the burn was of a very severe nature, and that it will impair the physical condition of plaintiff to a considerable degree most of his life; the only possible chance for escape from such a result being the rather doubtful one of one or more operations. The evidence further shows that plaintiff's mother expected to pay and had contracted to pay for the services which she received during her confinement in defendant's hospital.

In support of its defense that it was exempt from liability as a charitable institution, defendant introduced its articles of incorporation and showed by uncontradicted evidence that in the conduct of its hospital, while it made a charge against patients who had the ability to pay, it treated as many as it could who were not able to pay, or could only pay a part of the usual charges, and that it took care of what are usually called charity patients so far as possible in the same manner as the patients who paid its charges. It also appeared that the charges it did make were not based upon the idea of making a profit; that it never did make a profit therefrom, and that whatever sums it thus received were entirely insufficient to maintain the institution, so that for the purpose of continuing its operations it received contributions from the Methodist Episcopal Church, South, and others who desired to aid in its maintenance.

When the case was submitted to the jury, however, the court instructed it, among other things, as follows:

" . . . You are instructed that under the law you must return a verdict for plaintiff; that in doing that you will disregard all evidence in this case concerning the charitable or religious nature and character of this defendant and consider the facts in the this case the same as if said Southern Methodist Hospital and Sanitorium of Tucson were a private institution and not religious or charitable. In other words, gentlemen, that this defendant is a charitable institution is no defense in this case. If the defendant, . . . accepted the mother of Max Eugene Wilson as a pay patient, . . . and attempted to care for her upon the basis of her paying for such care and attention . . . , under the law the defendant is liable . . . . "

There are some twenty-eight assignments of error, but since, in our opinion, the case must be determined upon questions raised by the instruction just quoted, we think it unnecessary to set them forth at length. These questions may be thus stated: (1) Is a hospital, maintained as a charitable institution and not for profit, exempt from liability for the negligence of its employees, when such negligence results in injury to any of its patients, if it has used reasonable care in the selection of such employees? (2) If it is, does the fact that plaintiff was a paid patient alter the rule in regard to defendant's liability? (3) If charitable institutions are exempt under the circumstances set forth in the above question, is defendant such an institution?

We consider first the rule in regard to the exemption of charitable institutions from liability, as stated in the first question. This is a matter of first impression in Arizona, and for this reason we are at liberty to review the cases passing upon such questions and adopt such rule as seems to us most consistent with reason and justice, unhampered by any previous expression of our own upon the subject. Upon an examination of the authorities it appears that there is an irreconcilable conflict therein, but that the overwhelming weight, so far as numbers are concerned, supports the general doctrine of exemption from liability. Indeed, this is frankly conceded by counsel for plaintiff, but they insist that the rule for which they contend, although decidedly the minority one, is better founded upon reason than the contrary one. So far as we have been able to discover, the only jurisdictions which hold that charitable institutions are liable for the negligence of their employees on the same basis as private profit making corporations are Rhode Island, Alabama, Oklahoma, Minnesota, Florida and perhaps Georgia. Glavin v. Rhode Island Hospital, 12 R.I. 411, 34 Am. Rep. 675; Basabo v. Salvation Army, 35 R.I. 22, 85 A. 120, 42 L.R.A. (N.S.) 1144; Tucker v. Mobile Infirmary Assn., 191 Ala. 572, 68 So. 4, 13, L.R.A. 1915D 1167; City of Shawnee v. Raush, 101 Okl. 60, 223 P. 354; Mulliner v. Evangelischer Diakonniessenverein, 144 Minn. 392, 175 N.W. 699; Geiger v. Simpson Methodist-Episcopal Church, 174 Minn. 389, 219 N.W. 463, 62 A.L.R. 716; Parrish v. Chark, 107 Fla. 598, 145 So. 848; Morton v. Savannah Hospital, 148 Ga. 438, 96 S.E. 887. Probably the leading case taking this view is that of Glavin v. Rhode Island Hospital, supra. The basis of this decision is stated by the court as follows:

"This brings us to the important question whether the hospital does enjoy any peculiar exemption from liability. The claim that it enjoys such an exemption rests upon two grounds: to wit on the ground of public policy, and on the ground that the hospital had no funds except such as are exclusively dedicated to the charitable uses for which it was established, and which therefore cannot be applied to indemnify a patient who has been injured by the negligence or malpractice of a physician or surgeon, or of a medical or surgical interne.

"The first ground is the ground on which the plaintiff was nonsuited. The argument is that hospitals, like the Rhode Island Hospital, are a public benefit; but if they are liable for the torts of the physicians or surgeons attendant on them, or of the medical or surgical internes, or of their nurses and other servants, people will be discouraged from voluntarily contributing to their foundation and support, and therefore public policy demands that they shall be exempted from liability. In our opinion the argument will not bear examination. The public is doubtless interested in the maintenance of a great public charity, such as the Rhode Island Hospital is; but it also has an interest in obliging every person and every corporation which undertakes the performance of a duty to perform it carefully and to that extent, therefore, it has an interest against exempting any such person and any such corporation from liability for its negligence. The court cannot undertake to say that the...