St. Lukes Hosp. Ass'n v. Long

• Decision Date: 21 January 1952
• Docket Number: No. 16455,16455
• Citation: 125 Colo. 25,240 P.2d 917,31 A.L.R.2d 1120
• Parties: , 31 A.L.R.2d 1120 ST. LUKES HOSPITAL ASS'N et al. v. LONG et ux.
• Court: Colorado Supreme Court

Page 917

240 P.2d 917

125 Colo. 25, 31 A.L.R.2d 1120

ST. LUKES HOSPITAL ASS'N et al. v. LONG et ux.

No. 16455.

Supreme Court of Colorado, en Banc.

Jan. 21, 1952.

Bancroft, Blood & Laws and Martin J. Harrington, all of Denver, for plaintiffs in error.

Dickerson, Morrissey & Zarlengo, Walter F. O'Brien, Jr., all of Denver, for defendants in error.

STONE, Justice.

Defendants in error brought suit on account of injuries resulting in the death of their three-year-old son David while at the hospital of defendant association, alleging that the injuries resulted from negligently maintaining a bed and negligently failing to provide nurses or other attendants to prevent injury to the child.

The evidence discloses that David was a paying patient at the hospital, where he was taken for the purpose of removal of tonsils and adenoids. The operation was performed at approximately ten o'clock a. m., and the child was placed in an adult size hospital bed. The mother testified that she told the nurse in substance that she had her boy in a crib at home and that he couldn't sleep in the bed supplied as his tossing and turning would make him fall; that the nurse said she would see what they could do about it, and later an orderly came and provided standard side rails which were put up on each side of the bed. The space between the upright metal rods of the side rails was four and five-eighths inches. The operating surgeon, who was employed by the parents, last visited David at about six o'clock p. m., and found him restless, with a temperature of ninety-nine degrees. The nurse on that hospital floor visited him shortly after she went on duty at eleven o'clock p. m., and knew his temperature was slightly above normal. She testified that she saw him around four o'clock a. m., and when she next went to his room around five o'clcok she found him dead, with his body slipped through the rails of the bed and his head caught between them, so that he had strangled. The assistant medical examiner of the city was called as a witness and testified that at the time he saw the boy he had been dead from fifteen minutes to a half hour. He and the hospital superintendent experimented with the body to see how the boy could get between the rods of the side rail, and found that by turning the body on the side and depressing the chest slightly it went through. Judgment was entered on verdict against both defendants in the sum of $5,000.

As grounds for reversal defendants contend first, that the Royal Indemnity Company was not a proper party defendant. Plaintiffs insist that it was necessary to join the indemnity company under authority of Brown v. St. Luke's Hospital Ass'n, 85 Colo. 167, 274 P. 740, 742, wherein our court said, adhering to our ruling in St. Mary's Academy of Sisters of Loretto of City of Denver v. Solomon, 77 Colo. 463, 238 P. 22, 24, 42 A.L.R. 964, that, 'where the testimony affirmatively discloses a charitable trust and a judgment against said trust, if satisfied, will deplete the trust fund, under such circumstances, a plaintiff cannot maintain an action against such a defendant.' Assuming this contention of limited liability is correct, the insurer or indemnitor would not be a necessary party, at least where the fact of indemnity is admitted. But counsel misconstrue our holding as to such liability. We said in the St. Mary's Academy case: 'We hold that a charitable trust fund may not be depleted by the tort of the trustee, but it does not logically follow that no judgment can be rendered against him. He may be liable, and yet the trust fund not.' And we said in the Brown case, quoting from St. Mary's Academy case: 'We think that the judgment against these corporations is valid, but that no property which they hold in charitable trust can be taken under execution upon it * * *.' In O'Connor v. Boulder Colorado Sanitarium Association, 105 Colo. 259, 96 P.2d 835, 133 A.L.R. 819, we further said, with reference to the St. Mary's Academy case, supra, 'In reviewing the judgment we committed ourselves to what may be denominated the trust-fund doctrine, and held that the trust-fund rule does not bar an action against a charitable institution based on the tort of its agents, but that it does prohibit the levying of an execution under a judgment procured against it in such a suit on any property which is a part of the charitable trust.' We think that is the proper interpretation of the rule adopted in this state and agree with the statement in McLeod v. St. Thomas Hospital, 170 Tenn. 423, 95 S.W.2d 917, 919, Annotation 145 A.L.R. at page 1341: 'Upon consideration of the cases dealing with the question, and reflecting upon the true principle involved, we think it fairly may be said that the exemption and protection afforded to a charitable institution is not immunity from suit, not nonliability for a tort, but that the protection actually given is to the trust funds themselves. It is a recognition that such funds cannot be seized upon by execution, nor appropriated to the satisfaction of a tort liability. And certainly it is no defense to a tort action, that the defendant has no property subject to execution.'

The action was first instituted against the hospital association alone and plaintiffs in their complaint unnecessarily alleged on information and belief that a judgment awarded in the case would not result in any depletion of trust funds held by the defendant for the purpose of a charitable trust, for the reason that the defendant corporation was insured under a contract which would indemnify it in the amount of any judgment rendered. Thereafter plaintiffs amended said complaint by joining Royal Indemnity Company as a party defendant and further alleging that said defendant was the insurer of the hospital association under a contract which would indemnify the latter in the amount of any judgment rendered. After answer filed in behalf of both defendants denying the essential allegations of liability, defendants admitted at pre-trial conference the allegation of indemnity as contained in the original complaint, but the record fails to show any motion for dismissal in behalf of the indemnity company or of any allegation in its behalf in the answer of failure to state a claim against it upon which relief could be granted; accordingly, it does not appear that the trial court was called upon to dismiss as to the indemnity company and the question of misjoinder cannot now be raised.

It next is urged that there was failure to prove negligence as alleged. Although defendant St. Lukes Hospital Association is a charitable hospital, in this jurisdiction it was liable under the general rules applicable to private hospitals. Such hospitals are not insurers of patients' safety, but are obligated to use reasonable care and diligence in safeguarding patients submitted to their charge. Such care and diligence are measured by the capacity of the patient to care for himself. By reason of his age, a higher degree of care was required in attending a child such as here involved that if he had been an adult. Rice v. California Lutheran Hospital, 27 Cal.2d 296, 163...