Rehearing Refused October 1, 1929.
Appeal
from the First Judicial District Court in and for the Parish
of Caddo. Hon. T. F. Bell, Judge.
Action
by Paul T. Thibodaux in behalf of his minor child Letty May
Thibodaux against The Sisters of Charity of the Incarnate
Word.
There
was judgment for defendant, and plaintiff appealed.
Judgment affirmed.
Blanchard
Goldstein and Walker, of Shreveport, attorneys for plaintiff
appellant.
Wilkinson,
Lewis & Wilkinson, of Shreveport, attorneys for defendant,
appellee.
OPINION
REYNOLDS,
J.
We take
from appellant's brief the following concise statement of
the nature of the case:
This is
an action for damages brought by the plaintiff, Paul T.
Thibodaux, in behalf of his minor child, Letty May Thibodaux,
against the Sisters of Charity of the Incarnate Word, a
corporation domiciled at Shreveport, La., conducting a
hospital commonly known as "The T. E. Schumpert Memorial
Sanitarium."
The
injuries complained of resulted from burns received by the
child, Letty May Thibodaux, at the time of her birth when she
was placed in a basket prepared by the employees of the
sanitarium which contained a scalding hot water bottle.
Only
one defense is urged. The defendant asserts that it is a
charitable institution, and, as such, not liable in an action
for damages, where the asserted liability is based upon an
application of the rule respondeat superior.
There
are, consequently, two questions presented: First, whether or
not the defendant is in legal contemplation a charitable
institution; and, second, whether or not in this state such
corporations are exempt from liability in actions arising
under the rule referred to.
Plaintiff
has appealed from a judgment rejecting his demands.
Are
such institutions as defendant charitable institutions within
the legal meaning of this term, and, if so, are they exempt
from liability for damage caused patients by the negligence
of their servants?
Different
courts, viewing the questions from different angles, have
decided them both ways.
In
Hearns vs. Waterbury Hospital, 66 Conn. 98, 33 A. 595,
31 L. R. A. 224, the court said:
"This
defendant does not come within the main reason for the rule
of public policy which supports the doctrine of respondeat
superior. It derives no benefit from what its servant does,
in the sense of that personal and private gain which was the
real reason for the rule. Again, so far as the persons
injured are concerned, especially if they be patients at the
hospital, the defendant does not 'set the whole thing in
motion,' in the sense in which that phrase is used as
expressing a reason for the rule. Such patient, who may be
injured by the wrongful act of a hospital servant, is not a
mere third party, a stranger to the transaction. He is rather
a participant. The thing about which the servants are
employed is the healing of the sick. This is set in motion,
not for the benefit of the defendant, but of the public.
Surely, those who accept the benefit, contributing also by
their payments to the public enterprise, and not to the
private pocket of the defendant, assist as truly as the
defendant in setting the whole thing in motion. But the
practical ground on which the rule is based is simply this:
On the whole, substantial justice is best served by making a
master responsible for the injuries caused by his servant
acting in his service, when set to work by him to prosecute
his private ends, with the expectation of deriving from that
work private benefit. This has at times proved a hard rule,
but it rests upon a public policy too firmly settled to be
questioned. We are now asked to apply this rule, for the
first time, to a class of masters distinct from all others,
and who do not and cannot come within the reason of the rule.
In other words, we are asked to extend the rule, and to
declare a new public policy, and say: On the whole,
substantial justice is best served by making the owners of a
public charity, involving no private profit, responsible, not
only for their own wrongful negligence, but also for the
wrongful negligence of the servants they employ only for a
public use and a public benefit. We think the law does not
justify such an extension of the rule of respondeat superior.
It is, perhaps, immaterial whether we say the public policy
which supports the doctrine of respondeat superior does not
justify such extension of the rule, or say that the public
policy which encourages enterprises for charitable purposes
requires an exemption from the operation of a rule based on
legal fiction, and which, as applied to the owners of such
enterprises, is clearly opposed to substantial justice. It is
enough that a charitable corporation like the defendant,
whatever may be the principle that controls its liability for
corporate neglect in the
performance of a corporate duty, is not liable, on grounds of
public policy, for injuries caused by personal wrongful
neglect in the performance of his duty by a servant whom it
has selected with due care; but in such case the servant is
alone responsible for his own wrong. This result is justified
by the opinions in Hall vs. Smith (2 Bing. 156);
Holliday vs. St. Leonard's (11 C. B. (N. S.)
192); and Railway Co. vs. Artist ((C. C. A.) 60 F.
365, 23 L. R. A. 581), supra, substantially on the grounds
above stated, and is reached, for one reason or another, by
the greater number of courts that have dealt with this
particular liability of a corporation for public or
charitable purposes."
And the
United States Circuit Court of Appeals in the case of
Powers vs. Massachusetts Homoeopathic Hospital, 109
F. 294 65 L. R. A. 372, said:
"The plaintiff was what is sometimes called a
'paying patient' the rate of her payment being $ 14 a
week. Upon this ground her counsel has sought to distinguish
her case from that of a patient in the hospital who pays
nothing. In our opinion, the difference is immaterial. As has
been said, the defendant was a charitable corporation; that
is, a corporation organized exclusively for charity. That the
ministrations of such a hospital should be confined
exclusively to the indigent is not usual or desirable. Those
of moderate means from necessity, and not a few rich people
from choice, resort to great charitable hospitals for
treatment, especially in surgical cases. Throughout the world
this is the custom in these institutions, whether they are
maintained by individual, religious, or municipal charity.
From patients who are not indigent, a payment is commonly
permitted or required. Commonly, and in the case at bar quite
manifestly, this payment does not make full pecuniary
compensation for the services rendered. Those who make a
considerable payment not infrequently receive in some
respects a more expensive service than do those who make a
small payment or none at all; but the payment required is
usually calculated upon the patient's ability to pay,
rather than upon the whole cost of the treatment he receives.
That this was the defendant's rule appears plainly from
its printed form of application, which it required all
applicants to fill out alike, whether they paid something or
nothing. In this form the inquiry concerning payment was
stated as follows: 'How much per week applicant can
pay,'--thus indicating that the amount of the
contribution was to be determined, not by the value or cost
of the service rendered, but by the ability of the patient to
aid the charitable purposes of the hospital. In our opinion,
a paying patient in the defendant hospital, as well as a
nonpaying patient, seeks and receives the services of a
public charity.
"That
such a hospital in its treatment of a rich patient shall be
held to a greater degree of care than in its treatment of a
pauper is not to be tolerated. Certain luxuries may be given
the former which the latter does not get, and this for
various reasons; but the degree of protection from unskilled
and careless nurses must be the same in both cases. Again, it
would be absurd to make the defendant's liability for an
accident, like that here alleged, depend upon the payment of
that insignificant proportion of the cost of the service
rendered which in some cases may properly be required from a
poor man or woman. We are of opinion that this case stands as
if the plaintiff had been admitted without any payment
whatsoever.
"We
have to determine, then, if a patient admitted to a hospital
maintained for charity can recover judgment against that
hospital for injuries caused by the negligence of a nurse
employed therein. There is a great weight of authority in
favor of the defendant in the case put, but the courts have
differed so widely in their reasoning that a somewhat
extended examination is necessary, both of the cases decided
and of the principles upon which they rest. The liability of
the defendant for which the plaintiff contends is the
liability of a master for the torts of his servant. 'The
master is answerable for every such wrong of the servant or
agent as is committed in the course of the service and for
the master's benefit, though no express end or profit of
the master be proved.' * * *
"One who accepts the benefit either of a public or of a
private charity enters into a relation which exempts his
benefactor from liability for the negligence of his servants
in administering the charity; at any rate, if the benefactor
has used due care in selecting those servants. To paraphrase
the illustration put by the learned judge before whom this
case was tried, it would be intolerable that a good
Samaritan, who takes to his home a wounded stranger for...
