Welch v. Frisbie Mem'l Hosp.

Decision Date07 November 1939
Citation9 A.2d 761
PartiesWELCH v. FRISBIE MEMORIAL HOSPITAL (two cases).
CourtNew Hampshire Supreme Court

[Copyrighted material omitted.]

Transferred from Superior Court, Carroll County; Lorimer, Judge.

Actions by Marion Welch and Robert Welch against Frisbie Memorial Hospital for injuries resulting from alleged failure of defendant to carry an order to make an X-ray study of right leg of Marion Welch. Transferred to the Supreme Court upon defendant's exceptions to certain rulings of trial judge.

New trials.

Two actions on the case for negligence, tried together by jury with verdicts for the plaintiffs. In the first action Marion Welch seeks to recover damages for personal injuries alleged to have been sustained as the result of the negligence of the defendant's servant in failing to carry out an order to make an X-ray study of the plaintiff's right leg. In the second action her husband, Robert Welch, seeks to recover damages for loss of his wife's services and the expense of medical treatment.

There was evidence tending to prove the following facts: On December 5, 1936, Mrs. Welch was injured in an automobile accident at Milton, New Hampshire, and first employed Dr. Kimball of Union to treat her injuries. She was sent to the defendant's hospital by Dr. Kimball, who called Dr. Percy C. Grigg, one of the visiting staff of the hospital, and asked him to take care of the plaintiff upon her arrival. When Dr. Grigg examined Mrs. Welch at the hospital he found her complaining of pain in her right leg, which was painful to the touch, swollen and black and blue. Dr. Grigg was suspicious of fracture and ordered that an X-ray study be made of the injured leg. He testified that this order was given "to the night superintendent or some nurse in charge of the operating room." As a result of this order an X-ray plate of Mrs. Welch's right leg was taken by Eileen Toomey, a competent laboratory technician employed by the defendant. There was evidence that such an order as Dr. Grigg gave required an X-ray examination of the entire leg, including the ankle joint. The plate taken by Miss Toomey included the right knee and upper three-fifths of the leg but did not show the ankle joint. After this plate had been taken, an oral report was made to Dr Grigg that the X-ray was negative. Acting on this report, Dr. Grigg treated Mrs. Welch for a sprained ankle and told her that she had a sprained ankle with no fracture. She was discharged from the hospital on the following day.

Subsequent X-ray examination at another hospital three months later disclosed the fact that she had a fracture of both bones of the ankle, known as Potts fracture. The bones by that time had reunited in very bad position and subsequent treatment has resulted in only slight improvement of the ankle deformity and as a result the plaintiff at the time of the trial had "very little flexion and extension, with no side-wise motion of the joint." There was evidence that "the result would have been materially better" if she had received prompt treatment for a fracture instead of a sprain.

Transferred by Lorimer, J., upon the defendant's exceptions to the denial of its motions for nonsuits and directed verdicts; to certain rulings of the court upon questions of evidence; to the allowance of certain portions of the argument of plaintiffs' counsel to the jury; to the denial of its requests for instructions and to certain portions of the charge to the jury.

Arthur A. Greene, of North Conway, and William N. Rogers, of Concord, for plaintiffs.

Theo S. Jewett, of Laconia, Leonard C. Hardwick, of Rochester, and Wyman, Starr, Booth, Wadleigh & Langdell and L. E. Wyman, all of Manchester, for defendant.

BRANCH, Justice.

Insupport of its motions for a nonsuit and a directed verdict, the defendant contended that the technician who took the X-ray plates of plaintiff's leg was not the servant of the hospital. The basis of the court's order denying the motions was not stated at the time it was made, but it is clearly disclosed by the language of the charge. The jury was instructed that "the relation of master and servant existed between the hospital and Miss Toomey." It thus appears that the presiding justice himself determined the nature of the relationship between the technician and the hospital, and it is to be inferred that his denial of defendant's motions was predicated upon this finding. Since the facts in regard to Miss Toomey's employment were not in dispute, it was proper for the trial court thus to pass upon the nature of the relationship between her and the defendant (Restatement of Agency, § 220, com. b; 2 Mechem: Agency, § 1864), and we find in the record no reason to doubt that the court correctly evaluated the various factors which properly entered into a solution of the problem (Restatement of Agency, § 220) and arrived at a correct result. It follows that the defendant's motions, so far as they were based upon the ground above stated, were properly denied.

We, therefore, have squarely presented the question whether a hospital, organized and maintained as a charitable institution, can be held liable to a patient for injuries sustained as a result of the negligent conduct of its servants. With reference to a different factual situation the above question was considered in Hewett v. Hospital Aid Association, 73 N.H. 556, 64 A. 190, 7 L.R.A., N.S., 496, and it has received elaborate consideration in other jurisdictions. For collections of cases upon the subject see 48 Yale L. J. 81, and Appelman: Tort Liability of Charitable Institutions, 22 American Bar Association Journal, 48. Ina majority of American jurisdictions liability is denied, although, as stated by counsel for the defendant, "The basis of the decisions varies. Some deny liability upon the so-called trust fund theory that the money is devoted to charity and is not to be expended in the payment of tort liability; some on the waiver theory that a person who accepts the charity waives any right of action; and some on a broad question of public policy that the recipient of charity cannot maintain an action in the absence of showing fault with reference to the employment of persons charged with negligent conduct."

In Hewett v. Hospital Aid Association, supra, the trust fund theory was examined at length and discarded as unsound. Obviously, it cannot help the plaintiff in the present case.

As pointed out by an eminent authority on the law of trusts, the waiver theory has no substantial basis in fact (3 Scott: Trusts, § 402), and does not commend itself to us as a basis of decision.

We think it is equally clear that hospitals cannot properly be relieved of liability for the negligence of their servants upon any theory of public policy. In this jurisdiction the declaration of public policy with reference to a given subject is regarded as a matter primarily for legislative action (Heath v. Heath, 85 N.H. 419, 159 A. 418; Spead v. Tomlinson, 73 N.H. 46, 59 A. 376, 68 L.R.A. 432), and although judicial power undoubtedly exists "to declare public policy unsupported by legislative announcement of it * * * the policy must be based on a 'thoroughly developed, definite, persistent and united state of the public mind.' * * * There must be no substantial doubt about it." Heath v. Heath, supra, 85 N.H. 433, 159 A. page 425. With regard to the tort liability of charitable hospitals, we are aware of no such "state of the public mind" as is above described. On the contrary, so many competing considerations of policy have been suggested that it is extremely difficult to determine whether the public interest will best be served by a rule relieving hospitals from tort liability or by the application of the ordinary rules of agency. These competing considerations of policy are well summarized in Sheehan v. North Country Community Hospital, 273 N.Y. 163, 7 N.E. 2d 28, 29, 109 A.L.R. 1197.

If the trust fund theory tends to encourage philanthropically minded people to establish charitable institutions, and if it could be demonstrated that the imposition of tort liability tends to discourage such undertakings, a matter which now lies wholly in the realm of speculation, it may be answered "that to impose liability is to beget careful management; and that no conception of justice demands that an exception to the rule of respondeat superior be made in favor of the resources of a charity and against the person of a beneficiary injured by the tort of a mere servant or employee functioning in that character." Sheehan v. North Country Community Hospital, supra. In the absence of a legislative declaration of policy upon the subject, and in the presence of an indefinite and confused state of the public mind, we do not feel justified in announcing a rule of non-liability based upon the considerations of public policy.

We, therefore, conclude that this case is governed by the ordinary rules of agency, including the principle of respondeat superior, and that the action of the trial court in submitting it to the jury on this basis was correct.

The defendant sought to introduce evidence of the fact that Mr. Rogers, one of the plaintiffs' attorneys at the trial, was also counsel for Dr. Almond, the roentge nologist who examined the X-ray plate of the plaintiff's leg, and whose conduct was an issue in the case. This evidence was excluded and the defendant excepted. This ruling of the court presupposed a finding by him that the offered evidence would not have assisted the jury in ascertaining the truth of the present controversy. Such a discretionary ruling ordinarily raises no question of law for this court and the present case is not exceptional. The defendant's exception is, therefore, overruled.

In the course of his argument to the jury, counsel for the defendant made the following statements: "The hospital, the Frisbie Memorial Hospital, I submit to you is a place to which doctors may bring their patients, where...

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