Vanderbilt University v. Henderson

• Decision Date: 09 July 1938
• Parties: VANDERBILT UNIVERSITY v. HENDERSON.
• Court: Tennessee Court of Appeals

127 S.W.2d 284

23 Tenn.App. 135

VANDERBILT UNIVERSITY v. HENDERSON.

Court of Appeals of Tennessee, Middle Section.

July 9, 1938

Rehearing Denied Aug. 27, 1938.

Certiorari Denied by Supreme Court April 1, 1939.

Appeal in Error from Circuit Court, Davidson County; E. F. Langford Judge.

Action by John E. Henderson against Vanderbilt University to recover for injuries suffered by him while a patient in Vanderbilt Hospital. Judgment for plaintiff, and the defendant appeals in error.

Judgment modified, and, as so modified, affirmed.

Leftwich & Denny, of Nashville, for plaintiff in error.

Jordan Stokes, Jr., Whitworth Stokes, and Jordan Stokes, III, all of Nashville, for defendant in error.

FELTS Judge.

This is an action by John E. Henderson against Vanderbilt University and certain individuals to recover for personal injuries suffered by him while a patient in Vanderbilt Hospital. These individuals were trustees and other officers of the university and the surgeon and the physician treating plaintiff. He took a non-suit as to some of these individuals, a verdict was directed for the rest of them, and there is now no question before us in regard to them. He obtained a verdict and judgment against Vanderbilt University for $2,000, and it has appealed in error and assigned errors.

Vanderbilt University is an eleemosynary, non-profit corporation. Among its other undertakings, it runs a hospital, in which both charity patients and paying patients are treated. The receipts from paying patients are used for operating expenses of the hospital, but are insufficient for this purpose, and the university supplies the balance of such expenses from the income on its endowment.

Plaintiff was taken by his daughter, Mrs. Leftwich, to the hospital on February 17, 1935, and received by the hospital as a paying patient. He was irrational and delirious. The agents and servants of the hospital were aware of his condition. They put him on a bed near a steam radiator, which was unguarded and to prevent his getting off the bed, they placed sideboards on each side, extending about ten or eleven inches above the mattress. At 8:30 A. M. February 19th, while plaintiff was still irrational and delirious, and after his night nurse had gone off duty, and while no one was in the room with him, he got out of bed and came in contact with the radiator. The head nurse on duty, who was just across the hall, heard a clatter of the boards and a cry of plaintiff rushed into his room, and found him partly out of bed, with his shoulder lying on the radiator. He received severe burns on his back, shoulder and side, which are the injuries complained of.

One of the defenses was that, on receiving plaintiff as a patient, the hospital had made an arrangement with Mrs. Leftwich for her and other members of the family to watch plaintiff in the daytime and to have a special nurse to watch him at night to protect him in his condition; and that the hospital was not to be responsible for watching or protecting him, but only for furnishing proper nursing care and other services. Mrs. Leftwich denied that there had been such an arrangement, and testified that the hospital's employees had agreed to take care of him in the daytime and a special nurse had been employed to take care of him at night. As to this defense, counsel, with commendable frankness, concede that "there was such a conflict in the proof as to constitute an issue for the jury."

Another defense is that plaintiff cannot maintain this action against Vanderbilt University because it is a charitable institution and he is a recipient or beneficiary of the charity.

This defense was presented by a special plea by defendant to plaintiff's declaration and amended declaration. To this plea plaintiff filed a replication and an amended replication that defendant had a liability, as distinguished from an indemnity, insurance policy issued by the Aetna Casualty Company, by which that company had agreed to pay any judgment rendered against defendant by reason of its negligence; and that any judgment recovered herein would be paid out of this insurance and not out of defendant's trust property. To this replication defendant filed a rejoinder that its non-liability was not changed by reason of the fact that it had such insurance; that the policy was not a liability, but an indemnity, policy; that plaintiff had no interest therein; that the income from paying patients was insufficient to pay the expenses of the institution and such expenses were paid by the trust property or the income therefrom; and that plaintiff, though a paying patient, was none the less a recipient of the charity and could not maintain this action. Plaintiff demurred to this rejoinder upon the grounds that the matters alleged in the rejoinder were immaterial; that it was not shown that the income received from paying patients was insufficient to pay the expenses of the services rendered such patients; that it was not shown that plaintiff was a beneficiary of the charity; and that the rejoinder was insufficient in law.

The trial court sustained plaintiff's demurrer to defendant's rejoinder, adjudged the rejoinder insufficient, overruled defendant's motion to strike plaintiff's replication for insufficiency, overruled and disallowed defendant's special plea of eleemosynary institution, ordered defendant to go to trial upon its plea of not guilty, and also sustained defendant's motion to strike "all that part of plaintiff's replication and the amendment thereto which refers to insurance carried by defendants."

The action of the court in striking the replication did not take this pleading out of the record. Code, § 8727; Tennessee Hoop Co. v. Templeton, 151 Tenn. 375, 270 S.W. 73; Transport Corp. v. Caldwell, 19 Tenn.App. 44, 82 S.W.2d 571. The only point made upon this action is that the court should have sustained defendant's defense that it was a charitable institution and plaintiff was a beneficiary of the charity and could not maintain this suit. The same defense was again presented by motion for a directed verdict, which was overruled; and this is now relied upon as the principal ground for reversal.

It is generally held that a charitable institution is not liable for the negligence of its agents and servants. Abston v. Waldon Academy, 118 Tenn. 24, 102 S.W. 351, 11 L.R.A., N.S., 1179; Scott v. Burton, 173 Tenn. 147, 114 S.W.2d 956; Notes; 14 A.L.R. 572; 86 A.L.R. 491; 109 A.L.R. 1199. It is likewise held that the rule of non-liability of a charitable institution is not changed by reason of the fact that it carries liability insurance to protect it against liability which the law imposes upon it. McLeod v. St. Thomas Hospital, 170 Tenn. 423, 427, 95 S.W.2d 917, 918, and cases there cited; Greatrex v. Evangelical Deaconess Hospital, 261 Mich. 327, 246 N.W. 137, 86 A.L.R. 487; McKay v. Morgan Memorial Co-op. Industries & Stores, 272 Mass. 121, 172 N.E. 68.

But we think that in this State this rule of non-liability extends no further than the protection of the trust property of the charitable institution from being diverted from the purposes of the charity to the satisfaction of a tort liability.

This, we think, was the extent of the rule applied in Abston v. Waldon Academy, supra. There a pupil of the institution, who had been injured by leaping from a third floor window to escape fire, sought to recover damages for her injuries. The court said [118 Tenn. 24, 102 S.W. 352]: "Can such an action be maintained where, if so, the property placed by benevolent parties under the control of this corporation for what is well settled in this state to be a charitable use ( Franklin v. Armfield, 2 Sneed 305) must be appropriated to its satisfaction?" And the court held that such action could not be maintained because it would result in taking property devoted to a charitable use for the satisfaction of the judgment.

But where the institution has other property than that devoted directly to the charitable use, it may be held liable for the negligence of its agents and servants and such other property taken to satisfy such liability. Gamble v. Vanderbilt University, 138 Tenn. 616, 200 S.W. 510, L.R.A.1918C, 875; Lincoln Memorial University v. Sutton, 163 Tenn. 298, 43 S.W.2d 195. Where a charitable institution has committed a nuisance it is liable therefor, and its trust property may be taken to satisfy such liability. Love v. Nashville Agr. & Normal Institute, 146 Tenn. 550, 243 S.W. 304, 23 A.L.R. 887.

That the exemption or immunity afforded a charitable institution in this State goes no further than the protection of its trust funds from being taken to satisfy its liability for a tort of its agents or servants, we think, is established by the recent case of McLeod v. St. Thomas Hospital, 170 Tenn. 423, 95 S.W.2d 917, 919. In that case Mrs. McLeod visited her husband who was a patient in the hospital. In leaving the building she fell and injured herself by reason of the negligent condition of a tile floor. She sued to recover for her injury. It was developed in the pleading that the hospital carried liability insurance. The trial judge however, taking the view that the fact of such insurance did not enlarge the institution's liability or render it liable where it could not otherwise be held, dismissed the suit upon a consideration of the pleadings. The Supreme Court reversed this action of the lower court, remanded the case for a trial on the merits, holding that the defendant's plea of exemption because it was a charitable institution was not a sufficient defense. In this case the court said: "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...