Taylor v. Protestant Hospital Association

• Decision Date: 21 November 1911
• Docket Number: 11940
• Citation: 85 Ohio St. 90,96 N.E. 1089
• Parties: Taylor v. Protestant Hospital Association.
• Court: Ohio Supreme Court

96 N.E. 1089

85 Ohio St. 90

Taylor v. Protestant Hospital Association.

No. 11940

Supreme Court of Ohio

November 21, 1911

Public charitable hospital - Conducted under private management not liable for injuries to patient - Resulting from negligence of nurse, when.

1. The fact that a public charitable hospital receives pay from a patient for lodging and care does not affect its character as a charitable institution, nor its rights or liabilities as such in relation to such a patient.

2. A public charitable hospital organized as such and open to all persons although conducted under private management is not liable for injuries to a patient of the hospital resulting from the negligence of a nurse employed by it.

Plaintiff in error brought suit in the common pleas court of Franklin county. His petition alleys in substance his appointment and qualification as administrator, the incorporation of defendant under the laws of Ohio, and that it maintains and operates a hospital at the city of Columbus, Ohio, for hire and reward. That defendant received said Nancy M. Taylor at its hospital as a pay patient and agreed for a valuable consideration to furnish her with board, lodging and nursing provide an operating room and table and assist in and about an operation to be performed on her by a certain named surgeon. That defendant provided for said operation certain gauze sponges necessary to be used in said operation, which consisted of two abdominal incisions, and that defendant provided one of its employees to assist in said operation, to-wit: a nurse whose duty it was to keep account of the sponges so provided for use of the surgeon. That the nurse negligently failed to keep a proper count of the sponges which had been used in the operation and that by reason of her negligence one of the sponges which had been used was left in the body of the decedent and caused her death to the damage of plaintiff and the next of kin of decedent, for which judgment is prayed. The first defense of tile answer of defendant admits appointment of plaintiff as administrator, the incorporation of defendant, that deceased was received at the hospital as a pay patient, and that defendant agreed for ten dollars a week to furnish her with board, lodging and nursing; that an operation was performed on her by the surgeon named; that it provided certain gauze sponges for the operation and one of its employees, a nurse to assist in said operation, and denied the other allegations in the petition.

The material portion of the second defense is as follows:

"Defendant says that it is now, and has been ever since it was organized, a public and charitable corporation; that it was incorporated and organized, and has been operated exclusively for the purpose of providing hospital accommodations for the sick and injured; and that it never has had, has not now, and cannot have, any capital stock that it never has declared, and cannot declare dividends; and that it never made, and cannot make, any profits, either for the corporation or its members; that its funds and income have always been, and will continue to be derived from the rents, donations, devises and bequeaths, moneys and supplies from, and by, benevolent persons; that such funds and income have been heretofore used for the erection, support and maintenance of a public and charitable hospital for the sick and injured, and they will have to be used in the future for the improvement of said hospital, and the support and maintenance of the sick and injured therein lodged; that the persons who have heretofore made such donations, grants, devises, bequests and subscriptions, are so numerous that they could not be stated in this pleading.

"Defendant further says that said hospital has always been, and is now, open to all persons who apply for its benefits and accommodations, as long as it has rooms to accommodate them.

"That it has had, and now has six wards which will accommodate forty-five patients and which are for the Occupation of patients who are gratuitously lodged and cared for, and it has had, and now has 45 rooms for those who are able to and willing to pay for lodging and care a reasonable compensation, and the income so received from pay patients has always been used to support and maintain the said hospital.

"Defendant further says that the said Nancy M. Taylor engaged and agreed to pay this defendant ten ($10.00) dollars per week for her boarding and nursing during the time she was at the hospital. She occupied a room, and was furnished board and nursing from the 25th day of May, until the 30th day of June, 1899, for which she paid the hospital the sum of $51.40. That such sum so paid to this defendant was wholly inadequate as compensation for the board and nursing so furnished to the said Nancy M. Taylor."

Plaintiff in error filed a general demurrer to the second defense which was overruled by the trial court, and plaintiff not desiring to plead further judgment was entered for defendant. This judgment was affirmed by the circuit court and error is prosecuted to this court by the plaintiff to reverse the judgments of the courts below.

Mr. Ulric Sloane, for plaintiff in error.

It may be conceded at the outset that the greater weight of authority, outside of Ohio, falls upon defendant's side of this question. Powers v. Homeopathic Hospital, 109 F. 294, 101 F. 896.

The fact that the hospital does not make any money or seek to make any profit, does not release from liability. Newcomb v. Boston Protective Dept., 151 Mass. 215; Chapin v. Y. M. C. A., 165 Mass. 280.

It was ruled, however, in McDonald v. Hospital, 120 Mass. 432, that a corporation endowed by funds from the state and required to minister to a certain number of indigent patients and subject to visitation from the state, and maintaining a hospital, was not liable for the torts of its servants in and about administering said hospital.

This case relies upon Holliday v. St. Leonard's, 11 C. B., N. S., 192, which was overruled by the House of Lords in Mersey Docks, etc., v. Gibbs,. R., 1 H. L., 94, and repudiated as an authority by the court in Queen's Bench in Foreman v. Canterbury L. R., 6 Q. B., 214, decided in 1871.

For the purpose of our argument it is sufficient to discuss the narrow question as to whether an eleemosynary corporation is amenable to process; whether it can be sued at all. It would certainly seem in Ohio that any corporation could be sued. By incorporation it acquires the right and power "to sue and be sued, to contract and to be contracted with."

But is it exempt from liability arising ex delicato? Goodloe v. Cincinnati, 4 Ohio 500; Dayton v. Pease, 4 Ohio St. 80; Dunn v. Agricultural Society, 46 Ohio St. 96.

Is the defendant exempt from the doctrine of respondeat superior? The exemption from liability upon this ground is maintained in Hearns v. Hospital, 66 Conn. 98, and distinctly disapproved in Powers v. Hospital, 109 F. 294.

If such an exemption can be claimed, it must rely for support upon some of the English cases, and indeed the ruling in the Connecticut case is predicated upon Holliday v. St. Leonard's, 11 C. B., N; S., 192, and Hall v. Smith, 2 Bing., 156.

Hall v: Smith, supra, might well have been decided upon the same principle as ruled our supreme court in deciding Commissioners v. Mighels, 7 Ohio St. 110; but the judgment was placed upon another ground, to-wit, that the maxim of respondeat superior could not be applied where a master gained no profit or advantage from the acts of the servant.

To a similar effect is the decision of Duncan v. Findlater, 6 Clark & F., 894.

These latter cases are both overruled by the House of Lords in Mersey Docks, etc., v. Gibbs et al., L. R., 1 H. L., 93.

In Heriot's Hospital v. Ross, 12 Clark & F., 507, no question arose concerning the application of the doctrine of respondeat superior.

In Foreman v. Canterbury, L. R., 6 Q. B., 214, the doctrine of Holliday v. St. Leonard's, 11 C. B.

N. S., 192, to the effect that there is an exception to the rule of respondeat superior when the servant is employed by a corporation for public or charitable purposes, is distinctly repudiated.

Very late English cases leave us absolutely no discretion about deciding that in England there is no exception to the rule of respondeat superior, notwithstanding the earlier cases now relied upon by American courts. Donaldson v. Commissioners, 30 N. B., 279; Gilbert v. Trinity House, 17 Q. B. Div., 795.

All the later English cases now follow the doctrine of Mersey Docks, etc., v. Gibbs, L. R., 1 H. L., 93.

Messrs. Pugh & Pugh, for defendant in error.

At first, the basis of the doctrine of respondeat superior was either the command or consent of the master. Subsequently it was located on another foundation, and this was defined by Lord Brough-man in Duncan v. Findlater, 6 Clark & F., 498.

The four essential elements of a case subject to the application of the doctrine of respondeat superior are these: (1) The master must have employed the servant, and thereby have set the whole thing in motion; (2) the act of the servant must have been done for his benefit; (3) the servant must have acted under the master's direction; and (4) the act of the servant must have been done in the course of his employment.

In the case at bar the missing elements are the second and third. The hospital is conducted by trustees, as the law requires. All the property belonging to the defendant in error is held by them as trustees; the legal title to it is in them as trustees; the real owner of the property is the public; the hospital is conducted for the benefit of the public; the real owner has no part in the selection of the employees.

The defendant in error, being a charitable...