White v. United States

• Decision Date: 22 May 1962
• Docket Number: Civ. A. No. 3559.
• Citation: 205 F. Supp. 662
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Luther W. WHITE, III, Administrator, c.t.a. of the Estate of Donald E. Meeks v. UNITED STATES of America.

205 F. Supp. 662

Luther W. WHITE, III, Administrator, c.t.a. of the Estate of Donald E. Meeks v. UNITED STATES of America.

Civ. A. No. 3559.

United States District Court E. D. Virginia, Norfolk Division.

May 22, 1962.

George H. Gray of Outland & Gray, Norfolk, Va., for plaintiff.

G. R. Patrick, Asst. U. S. Atty., Richmond, Va., for defendant.

MICHIE, District Judge.

This is an action brought by the Administrator of the estate of Donald E. Meeks to recover for the death of Donald E. Meeks which is alleged to have occurred by reason of the negligence of agents of the defendant at the Veterans Hospital in Salem, Virginia.

The defendant filed an answer denying negligence and advancing two "affirmative defenses", namely, first that the complaint failed to state a claim against the defendant upon which relief can be granted and, second, that the claim arises out of action taken in the exercise or performance or failure to exercise or perform a discretionary function or duty on the part of a federal agency or employee.

At a pre-trial conference held on January 12, 1962, on motion of the plaintiff, the matter was set down for "argument" on the defendant's affirmative defenses on January 30, 1962 and at that time the defendant produced witnesses to prove its affirmative defenses who were heard by the court and after argument the matter was taken under advisement by the court and subsequently briefs were filed by the parties.

The court having considered the matter is of the opinion that both affirmative defenses constitute valid defenses to this action and, further, that the evidence adduced clearly shows that there was no actionable negligence on the part of the defendant unless the plaintiff can adduce evidence contradicting that produced by the defendant at the preliminary hearing.

However no motion for a summary judgment has been made and in the absence of further action by the defendant it would seem that the case should be set down for trial. If a motion for summary judgment were made it would appear to the court that the motion would have to be sustained and summary judgment entered unless the plaintiff can produce affidavits to the effect that the evidence heretofore produced by the defendant can be contradicted at the trial.

The defendant's first affirmative defense was that the complaint failed to state a claim upon which relief can be granted. It was stated at the hearing on the defendant's affirmative defenses that this position was predicated on the doctrine of nonliability of charitable hospitals which prevails in Virginia but this defense was not argued at that time or in the defendant's brief. The argument has been entirely directed to the second defense, the exemption of the discretionary function or duty from the effect of the Federal Tort Claims Act, 28 U.S.C.A. § 2680(a), which provides that the waiver of the immunity of the United States for tort claims is not to apply to "any claim * * * based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of * * * an employee of the Government, whether or not the discretion involved be abused."

However I am of the opinion that the first affirmative defense stated in the answer, namely, that the complaint fails to state a claim against the defendant upon which relief can be granted, is sound on the ground suggested and I will consider this defense before passing to the defense arising out of the discretionary exception.

I.

The Liability of Charitable Hospitals in Virginia.

Recovery under the Federal Tort Claims Act may be had against the United States only "in the same manner and to the same extent as a private individual under like circumstances" would be liable with certain exceptions not here material. 28 U.S.C.A. § 2674. And the liability of the private individual under like circumstances in Virginia would of course be governed by the laws of Virginia so that it is thoroughly settled that under the Federal Tort Claims Act liability of the United States is governed by the law of the state in which the injury occurred.

In Virginia it is well settled that a hospital which is a charitable institution is not liable for the negligent acts of its employees resulting in injury to patients unless it was negligent in the selection of such employees. Weston's Adm'rx v. Hospital of St. Vincent of Paul, 131 Va. 587, 107 S.E. 785, 23 A.L.R. 907; Walker v. Memorial Hospital, 187 Va. 5, 45 S.E.2d 898; and Memorial Hospital v. Oakes, Adm'rx., 200 Va. 878, 108 S.E.2d 388 (decided in 1959).

In the latter case the court was urged to overrule the earlier cases on the ground that "the reasons for a valid public policy granting some immunity to charitable institutions no longer exist; that now the weight of authority is against any charitable immunity from tort liability, and that notable text book writers have condemned the doctrine." And it was "pointed out that Ohio, Washington, Kansas, Colorado, Delaware, New York and New Jersey are among those states which have in the past few years joined the ranks of others denying immunity to charitable institutions for their torts and those of their servants."

But the court declined to do so, saying at p. 889, 108 S.E.2d at p. 396:

"We concede that the wisdom of the rule of immunity as applied to charitable institutions is debatable. But the doctrine which was established in Weston's Adm'x v. Hospital of St. Vincent, etc., supra, is firmly embedded in the law of this Commonwealth and has become a part of the general public policy of the State. The General Assembly, though composed of many lawyers of outstanding ability throughout the years, has not seen fit to enact legislation abrogating the doctrine. By its silence, approval might well be inferred. If it be considered desirable to abolish such immunity, it would be more appropriate for the General Assembly to act, for the effect would be to operate prospectively. Abandonment of the rule by judicial decision would be retroactive and give life to tort claims not barred by the statute of limitations at the time of rendition of this opinion. It is probable that many charitable institutions, relying upon the existing doctrine, have not availed themselves of protective insurance or otherwise prepared themselves for such an event. Our reexamination of the subject convinces us that the doctrine laid down in Weston's Adm'x v. Hospital of St. Vincent, etc., supra, should not be abolished by this court, and we adhere to it."

It seems clear therefore that a charitable hospital would not be liable in Virginia under the circumstances alleged in this case and therefore, if the United States was in the Veterans Hospital operating a charitable hospital, it would not be liable for the negligence of the employees of the hospital since a private person operating such a hospital would not be so liable.

I think there is no doubt that the Veterans Hospital, though operated by the government, is a charitable institution.

"A hospital may be a public charity or a charitable institution, as may a corporation organized for the purpose of founding and maintaining a hospital. Briefly, the test which determines whether a hospital is charitable or otherwise is its purpose, that is, whether or not it is maintained for gain, profit, or advantage." 14 C.J.S. Charities § 2, p. 422.

In In re Wilson's Estate, 111 Wash. 491, 191 P. 615, a testator bequeathed "five thousand dollars to each of the following named charitable institutions * * Tuberculosis Sanitarium." There was no institution of that name but there was a city owned and operated tuberculosis hospital which had formerly been called the "Tuberculosis Sanitarium" and which extrinsic circumstances indicated the testator had in mind. There was also in the area a charitable institution known as the "Riverton Tuberculosis Sanitarium." The latter contended that it must have been intended as the recipient of the bequest since the bequests in the will were to "charitable institutions" and it claimed that the city-owned hospital was not a charitable institution. But the court held otherwise, saying:

"Appellant advances the argument that the city's hospital does not come within the description of the testator of a `charitable institution,' but in this he errs, for, as already adverted to, the services performed are gratuitous, though the source of the maintaining revenue is derived from taxation. The question of whether an institution is a charitable one is determined more by its deeds than by its sustaining methods or motives. A municipality by tax-raised funds may operate a charitable institution. People ex rel. State Board of Charities v. New York Society for the Prevention of Cruelty to Children, 162 N.Y. 429, 56 N.E. 1004; Russell v. Allen, 107 U.S. 163, 2 Sup.Ct. 327, 27 L.Ed. 397; State ex rel. Olsen v. Board of Control of State Institutions, 85 Minn. 165, 88 N.W. 533."

In Maia's Adm'r v. Eastern State Hospital, 97 Va. 507, 34 S.E. 617, 47 L.R.A. 577, the Eastern State Hospital, which is maintained by the state for purposes quite similar to those for which the United States maintains the Veterans Hospital at Salem, was held not to be liable for the negligence of its agents and employees. But non-liability in that case was based upon the conclusion that the hospital was exercising a governmental function rather than upon its status as a charitable institution and hence it is not conclusive in the case at bar.

In Washington v. U. S., 100 Ct.Cl. 491, decided prior to the passage of the Federal Tort Claims Act, the Freedman's Hospital, operated by the United States government in Washington, D. C., was held to be a charitable hospital. In denying liability the court said:

"* * * but plaintiff says in her brief that there was implied an agreement to render her and her baby proper care, maintenance and attendance, and to deliver to her the body of her child upon her release.

"If we

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