Tucker v. Mobile Infirmary Ass'n

• Decision Date: 11 February 1915
• Docket Number: 824
• Citation: 68 So. 4,191 Ala. 572
• Parties: TUCKER v. MOBILE INFIRMARY ASS'N.
• Court: Alabama Supreme Court

68 So. 4

191 Ala. 572

TUCKER v. MOBILE INFIRMARY ASS'N.

No. 824

Supreme Court of Alabama

February 11, 1915

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Action by Fannie Tucker against the Mobile Infirmary Association for damages for personal injury while being treated at said institution. Judgment for defendant on the pleadings, and plaintiff takes nonsuit, and brings this appeal. Reversed and remanded.

Mayfield J., dissenting.

The following is the complaint:

Count 1. Plaintiff claims of defendant *** as damages for that heretofore, to wit, *** defendant was in the business of conducting an infirmary for the treatment of patients requiring operations and other medical treatment, and for a reasonable compensation, defendant undertook and promised to properly nurse and care for plaintiff, preparatory to and during a surgical operation which she then required, and thereafter until she had sufficiently recovered to leave the institution, and that while plaintiff was so in said infirmary for such treatment, and after she had been operated on for some trouble of the internal organs, plaintiff was badly scalded with boiling water both internally and externally by reason of the negligence of one of the nurses employed by defendant in the care of plaintiff, and while said nurse was engaged in and about the duties of her employment.

The second count is the same as the first down to and including the words "both internally and externally," and adds, "by reason of the said defendant's negligently intrusting the care of plaintiff while she was under an anaesthetic to an incompetent nurse."

The following are the pleas in the case:

(2) To each count of the complaint defendant says that, at the time when plaintiff claims to have been injured in the manner alleged in her complaint, defendant was an institution operated exclusively for charity, and that due care was exercised by defendant in the selection and retention of the service of the nurse referred to in the complaint. (3) At the time when plaintiff alleges that she suffered the injuries described in her complaint, defendant was engaged in the business of conducting a charitable hospital; that the ministrations of said hospital were not confined exclusively to the indigent, but pay was required and received from such patients as were able to pay for the services, attentions and accommodations furnished them; that defendant corporation has issued no stock and has no stockholders; that it is not operated for profit, and never has been; that as moneys are earned by defendant they are and will be applied exclusively to the operations of its hospital, payment of its debts, and the extension of its work as charity institution; that defendant exercised due care in the selection and retention of the nurse referred to in said complaint, and, if said nurse was incompetent, such fact was not known to defendant and defendant had no notice thereof, although defendant exercised reasonable care with regard to the competency of said nurse.

Gregory L. & H.T. Smith and William G. Caffey, all of Mobile, for appellant.

C.J Torrey and Webb & McAlpine, all of Mobile, for appellee.

GARDNER J.

Plaintiff (appellant here) brought this suit against the Mobile Infirmary Association for the recovery of damages alleged to have been sustained by being scalded with boiling water both internally and externally as a result of the negligence of one of the nurses employed by defendant in care of the plaintiff, and while such nurse was engaged in the duties of said employment. There were two counts in the complaint. The reporter will set out counts 1 and 2 and pleas 2 and 3 in his report of the case. Demurrers to these pleas were overruled and replications were filed. Plaintiff took nonsuit on account of adverse rulings on the pleadings and brings the case here for review.

We think the pleas to the two counts ordered to be set out will be sufficient to present the question raised by the record.

Each of the counts alleged that for a reasonable compensation the defendant undertook and promised to properly nurse and care for plaintiff preparatory to and during a surgical operation and thereafter until she had sufficiently recovered to leave the institution.

In the first count the injuries are alleged to have been the result of negligence of one of the nurses employed by the defendant in care of the plaintiff, and in the second count as a result of defendant's negligently intrusting the care of the plaintiff, while under an anaesthetic, to an incompetent nurse.

It is insisted by counsel for appellant in brief that the complaint is one for damages for the breach of a contract, citing Western Union Telegraph Co. v. Littleton, 169 Ala. 99, 53 So. 97; McDaniel v. Johnson, 110 Ala. 526, 19 So. 35; Mott v. Jackson, 172 Ala. 448, 55 So. 528. In the case first cited, quoting from case of Wilkinson v. Moseley, 18 Ala. 288, it was said:

"If the cause of action, as stated in the declaration, arises from a breach of promise, the question is ex contractu; but if the cause of action arises from a

breach of duty, growing out of the contract, it is in form ex delicto and case."

The opinion in Western Union Telegraph Co. v. Littleton, supra, also makes note of the fact that it has frequently been said that it is often difficult to determine whether a count is on the contract or in tort, and regret is expressed that such is the case.

In each count of the complaint as above shown, the expressed promise and undertaking for a reasonable compensation to properly nurse and care for the plaintiff is alleged, and it is insisted therefore that the cause of action is shown to arise from the breach of this promise, and therefore that the action is ex contractu. However, this we need not determine, as we do not deem it material for the reasons which will hereafter be stated.

It is next insisted that, the action being ex contractu, the eases of Ward v. St. Vincent's Hospital, 39 A.D. 624, 57 N.Y.S. 784, and Armstrong v. Wesley Hospital, 170 Ill.App. 81, are authorities to support the cause of action as for the breach of an expressed contract resulting in injury to the patient. It must be conceded, if the counts are so construed, that such seems to be the effect of these decisions.

From the view we take of the case, it is also unnecessary that this be determined, as we are in accord with the following quotation from the case of Duncan v. St. Luke Hospital, 113 A.D. 68, 98 N.Y.Supp. 867, found recited in Duncan v. Nebraska Sanatarium Association, 92 Neb. 162, 137 N.W. 1120, 41 L.R.A. (N.S.) 973, Ann.Cas. 1913E, 1127:

"Nor can we see any reason why there should be any difference in the rule where the tortious act which caused death is alleged to be a breach of an expressed contract than where it is alleged to be a breach of an implied contract, or where no contractual relation at all existed."

We are therefore of the opinion that, in so far as this case is concerned, the rule of liability would be the same whether an expressed contract were alleged or merely one implied by law.

That the complaint upon its face, in ordinary cases, shows a right of action in the plaintiff against the defendant, is, as we view the pleadings, practically conceded. The defendant, as shown more fully by plea 3, seeks exemption from liability because of the fact that it was engaged in the business of conducting a charitable hospital, that the corporation issued no stock, has no stockholders, is not operated for profit, and that while its ministrations were not confined exclusively to the indigent, and pay was required and received from such patients as were able to pay for the service, yet the moneys earned by the corporation were applied exclusively in the operation of its hospital, payment of its debts, and the extension of its work as a charitable institution; and it is then averred that the defendant exercised due care in the selection and retention of the nurse referred to in the complaint. In short, the defense is that, having exercised due care in the selection and retention of the nurse, the defendant is exempt from all liability to the plaintiff, because of the fact that it is an institution organized, not for profit, but for charitable purposes.

The question presented is one of much interest, and a subject upon which much appears to have been written in recent years. It must be conceded at the outset that the great weight of authority in this country, certainly from a numerical standpoint, lies with the defendant in this case. It appears, however, to be conceded by counsel, and we have found nothing to the contrary, that the question is an open one in this state, leaving us free to act without any constraint of the rule of stare decisis, and in accordance with what we deem to be the law.

Among the early cases in this country deciding such charitable institution exempt from liability to the patient is that of McDonald v. Mass. General Hospital, 120 Mass. 432, 21 Am.Rep. 529; and it has been frequently cited and approved in subsequent cases in that jurisdiction. Farrigan v. Pevear, 193 Mass. 147, 78 N.E. 855, 7 L.R.A. (N.S.) 481, 118 Am.St.Rep. 484, 8 Ann.Cas. 1109; Thornton v. Franklin Square House, 200 Mass. 465, 86 N.E. 909, 22 L.R.A. (N.S.) 486.

The above case of McDonald v. Mass. General Hospital has been also frequently cited and followed in other jurisdictions, and we therefore think it important, at the outset, to call attention to what seems to be the only authority relied upon in that opinion upon the question here under consideration--that of the English court in the case of Halliday v. St. Leonard, 11 C.B. (N.S.) 192, decided by the Court of Common Bench in 1861.

It is clear, however, that...