Weston's Adm'x v. Hosp. Of St. Vincent Of Paul

• Decision Date: 23 June 1921
• Citation: 107 S.E. 785
• Parties: WESTON'S ADM'X v. HOSPITAL OF ST. VINCENT OF PAUL.
• Court: Virginia Supreme Court

107 S.E. 785

WESTON'S ADM'X

v.HOSPITAL OF ST. VINCENT OF PAUL.

Supreme Court of Appeals of Virginia.

June 23, 1921.

Sims and Saunders, JJ., dissenting.

Error to Circuit Court of City of Norfolk.

Action by Mrs. Durant Weston as administratrix against the Hospital of St. Vincent of Paul. Judgment for defendant, and plaintiff brings error. Affirmed.

Jas. G. Martin, of Norfolk, for plaintiff in error.

R. B. Spindle, Jr., and Jas. E. Heath, both of Norfolk, for defendant in error.

BURKS, J. Durant Weston engaged of the defendant in error a room, board and the usual hospital service for his wife, who was expecting shortly thereafter to be confined. She was to be a pay patient, but the price was not agreed on. He did not know that the hospital was a charitable institution. He provided his own doctor. Mrs. Weston went to the hospital at the appointed time, and on August 31, 1919, about 5:30 a. m., gave birth to a child. The child, immediately upon birth, was delivered to the night nurse on that hall, and was given the treatment usually given in such cases—that is, was placed in a basket on a sterile towel, with a little blanket folded over It, with a hot water bottle next to these coverings. The towel and the blanket were between the baby and the hot water bottle. When the baby was taken up at the usual time thereafter to be bathed and dressed, it was found to be so badly burned by the hot water bottle that it died as the result of such burns in the course of a week. The nurse who attended the baby was one of the hospital nurses, who had been in training in the hospital for three years, had completed her training, had taken the state board examination as a practical nurse, and received her graduation papers a few days after the accident. She was the night nurse in that ward on the night of the accident, and had been on duty since 7 p. m.; her hours being from 7 p. m. to 7 a. m. The ward of which she had charge accommodated about 15 patients, but it does not appear how many were in the ward at that time. The nurse testifies that the hot water bottle used was taken from another patient, that it was tested as to temperature by putting it to the face, and that she did not think it was too hot. She further testifies that after putting the baby in the nursery with the hot water bottle, she went about her other duties. While it is said that the hospital had graduate nurses on the hall for obstetrical cases, the attending nurse had received the training above mentioned, and had served in the obstetrical ward for a few weeks during the month of November preceding the accident, and during the months of July and August immediately preceding the accident on August 31. Shortly after the death of the infant, Mrs. Weston qualified as the administratrix, and brought this action under the statute to recover damages for death by wrongful act or neglect. After all the evidence was In, the defendant demurred thereto, and the trial court sustained the demurrer and entered judgment for the defendant. To that judgment, the writ of error in this case was awarded.

The defendant is a charitable institution, conducting a hospital solely for philanthropic and benevolent purposes. It is not conducted for profit, has no stockholders, and pays nodividends. All of its income is used for the support of the hospital, which is not self-sustaining. It is a "charitable institution for the care of the sick and the poor, " and is operated by the Sisters of Charity of the Roman Catholic Church, who receive no compensation for their services. It receives its income chiefly from pay patients and from donations.

In Hospital of St. Vincent of Paul v. Thompson, 116 Va. 101, 81 S. E. 13, 51 E. R. A. (N. S.) 1025, it was determined, upon substantially the same evidence now before us, that the defendant was a charitable institution, and we do not attach serious importance to the objection that the father of the child was ignorant of the charitable nature of the institution when he engaged the room for his wife. Stewart v. California, etc., Ass'n, 178 Cal. 418, 176 Pac. 46, 48. Every person who deals with a corporation is bound to take notice of the provisions of its charter for the management and control of its affairs. Relfe v. Rundle, 103 U. S. 222, 226, 26 L. Ed. 337.

The evidence in the instant ease does not warrant the inference that there was any negligence in the selection of the nurse whose negligence caused the injury complained of, as contended by counsel for the plaintiff in error, and the case does not present any question of a violation of a corporate or nonassignable duty.

Counsel for the plaintiff in error earnestly insists that—

"Even if charities are ordinarily exempt from injuries to patients, the exemption is based on contract, and has no application to a new-born babe, who could not contract and who bad no voluntary thought in selecting a charity hospital to be born in, and our statute for death allows recovery wherever the deceased could recover if alive. Code, § 5787."

This court did not hold, nor did Judge Keith say, in the case of Hospital v. Thompson, 116 Va. 101, 81 S. E. 13, 51 L. R. A. (N. S.) 1025, that charities "are subject to the general laws of the land, and cannot, therefore, claim exemption from responsibility for the torts of their agents, unless that claim is based on a contract with the person injured." The language quoted is the language of the Supreme Court of Michigan in Bruce v. Central M. E. Church, 147 Mich. 230, 110 N. W. 951, 10 L. R. A. (N. S.) 74, 11 Ann. Cas. 150, in its effort to reconcile that case with Downes v. Harper Hospital, 101 Mich. 555, 60 N. W. 42, 25 L. R. A. 602, 45 Am. St. Rep. 427, and in explanation of the holding in Powers v. Mass. Hospital, 109 Fed. 294, 47 C. C. A. 122, 65 L. R. A. 372. No such question was involved in Hospital v. Thompson, supra. The question there involved was the liability of the hospital to a third person, not a beneficiary, and the quotation is made in connection with a discussion of cases showing that the "trust fund" doctrine does not apply to injuries to third persons. All that is said as to liability to beneficiaries of the charity was confessedly obiter, but if any deduction is to be made as to the position of this court on the subject of liability to beneficiaries, it is that it approved the holding in the Powers Case. Furthermore, it is hereinafter pointed out that the Michigan court misinterpreted the holding in the Powers Case.

The father of the child engaged the room, board, nursing, etc., for the prospective mother, and the latter voluntarily entered the hospital pursuant to such engagement, and submitted to its care and treatment, and they thereby assumed the risk as well for the child as the mother. Parents have and exercise such authority of necessity over their children of tender years. It is not only the right, but the duty, of parents to provide for the proper care and nursing of their very young children, and if need be to provide for surgical operations upon them, or hospital treatment, or both. In these matters the wishes of young children are not consulted, nor their consent asked when they are old enough to give expression thereto. The will of the parents is controlling. In the case at bar, if the action of the parents was an assumption of risk on the part of the mother, it was on behalf of the child also, and they had the power to make it. While assumption of risk is often a matter of implied contract, as in case of master and servant, it is not always and necessarily so. The mere doing of an act, in the absence of any contract, may be the assumption of risk, as is illustrated by engaging in athletic sports and the like. A man who crosses a railroad track in front of an approaching train assumes the risk of getting across in safety. We assume risks in many ways every day, without any relation to contract.

This brings us to the consideration of that difficult question, so much discussed and upon which so much has been written, the liability of charitable hospitals for negligent injuries inflicted by their servants. It may well be doubted whether the hospital is liable for the negligence of the nurse in a case of this kind. Although employed by the hospital, she was at the time of the injury complained of in attendance upon the plaintiff's doctor, whose orders and directions she was expected to obey, rather than those of the hospital authorities. It seems to be well settled that a charity hospital, in the absence of a special contract to the contrary, is not liable for the negligence of its physicians in the treatment of patients, and many of the cases apply the same rule to nurses. Glavin v. Rhode Island Hospital, 12 R. I. 411, 34 Am. Rep. 675; Hordern v. Salvation Army. 199 N. Y. 233, 92 N. E. 626, 32 L. R. A. (N. S.) 62, 139 Am. St. Rep. 889; Hearns v. Water-bury Hospital, 66 Conn. 98, 33 Atl. 595, 31 L. R. A. 224; Bruce v. Central M. E. Church, 147 Mich. 230, 110 N. W. 951, 10 L. B. A. (N. S.) 74, 11 Ann. Cas. 150; Powers v. Mass. Hospital, 109 Fed. 294, 47 C. C. A. 122, 65 L. R. A. 372; Union P. R. Co. v. Artist, 60 Fed. 365, 9 C. C. A. 14, 23 L. R. A. 581; Hillyer v. St. Bartholomew's Hospital, L. R. (2 K. B. 1900) 820.

In Schloendorff v. New York Hospital, 211 N. Y. 125, 105 N. E. 92, 52 L. R. A. (N. S.) 505. Ann. Cas. 1915C, 581, decided in 1914, it is said:

"It is true, I think, of nurses as of physicians, that in treating a patient they are not acting as the servants of the hospital. The superintendent is a servant of the hospital; the assistant superintendents, the orderlies, and the other members of the administrative staff are servants of the hospital. But nurses are employed to carry out the orders of the physicians, to whose authority they are subject. The hospital undertakes to procure for the patient the services of a nurse. It does not undertake through the agency of nurses to render those services itself. The reported eases make no...