Whitehurst v. American Nat. Red Cross

• Decision Date: 09 June 1965
• Docket Number: CA-CIV
• Parties: Charles R. WHITEHURST and Lucille Whitehurst, husband and wife, Appellants, v. The AMERICAN NATIONAL RED CROSS, a Federal corporation, Appellee. * 229.
• Court: Arizona Court of Appeals

Page 584

402 P.2d 584

1 Ariz.App. 326

Charles R. WHITEHURST and Lucille Whitehurst, husband and wife, Appellants, v. The AMERICAN NATIONAL RED CROSS, a Federal corporation, Appellee. ^*

2 CA-CIV 29.

Court of Appeals of Arizona.

June 9, 1965.

Rehearing Denied July 14, 1965.

Rees, Estes & Browning, Tucson, of counsel, Paul G. Rees, Jr., Tucson, for appellants.

May & Dees, Tucson, of counsel, Robert A. May, Tucson, for appellee.

MOLLOY, Judge.

This is an appeal from a summary judgment for the defendant, The American National Red Cross, in an action by which the plaintiffs, Charles R. Whitehurst and wife, Lucille Whitehurst, sought to recover damages for the injuries sustained by Lucille Whitehurst when she contracted the disease of homologous serum hepatitis allegedly resulting from the transfusion of impure whole blood supplied by the Southern Arizona Regional Blood Center, an agency of the defendant. The claim is predicated upon a breach of implied warranty upon the theory that the furnishing of blood constituted a sale within the Uniform Sales Act.

The facts pertinent to this appeal are as follows.

Mrs. Whitehurst entered Tucson Medical Center Hospital for major abdominal surgery in August 1958. On August 19, 1958, following the operations, she went into shock and it was determined by her physician that she bleeding internally. To save her life the physician ordered that a series of transfusions of whole blood be given her, of which she received a total of nine pints. It is from the transfusions of blood that the plaintiffs contend that Mrs. Whitehurst contracted homologous serum hepatitis.

Included in the itemized bill of the hospital, the plaintiff were charged by Tucson Medical Center $5.20 for each pint of blood received by Mrs. Whitehurst, $4.95 of which was reimbursed to the defendant Red Cross and 25 cents to the hospital. The agreement between Tucson Medical Center and Southern Arizona Regional Blood Center [Exhibit A] discloses that:

'A. The Red Cross Blood Program agrees to supply the total blood needs of Tucson Medical Center Hospital insofar as it is possible, * * *

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'D. Delivery will be on a routine basis upon receipt of orders * * *

'E. The hospital agrees to reimburse the Southern Arizona Regional Blood Center for part of the operating cost for the collection, processing and distribution of civilian blood, amounting to a total of $4.95 per unit for whole blood used, * * *

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'H. No charge will be made either by the hospital or by any member of the medical staff to the recipient for the blood and the blood products themselves which are furnished through the Red Cross Blood Program.

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'J. All blood remains under the jurisdiction of the Red Cross until actually used * * *'

It is undisputed that attached to each bottle of whole blood furnished by the Red Cross is the following statement printed on the label:

'Despite careful selection of donors, this blood may contain the virus of homologous serum hepatitis.'

It is noted that the action brought by the plaintiffs in the lower court was against the hospital for administerin the alleged unwholesome blood and The American National Red Cross as supplier. The complaint sounded in both negligence and warranty. Summary judgment was entered by the trial court in favor of both defendants. This appeal is directed solely against the judgment entered in favor of defendant, The American National Red Cross, and at time of oral arguments, plaintiffs abandoned their contention that there was any case in negligence against the appellee, admitting that under the present state of science that is no practicable way to determine whether whole blood taken for transfusion carries homologous serum hepatitis.

In determining whether the trial court was correct in granting summary judgment in favor of the defendant, we must answer the question of whether the furnishing of blood by the defendant was a 'sale.'

The plaintiffs predicate liability of the defendant upon the theory of breach of warranty of merchantable quality, which warranty was allegedly breached by the 'sale' of impure blood. The defendant asserts that the furnishing of this blood is the rendition of a service rather than a sale.

Relatively few appellate courts have had the occasion to review serum hepatitis transfusion cases. Courts have thus far uniformly held that in a blood transfusion case service predominates, and that extra charge for blood is not indicative of a sale but is merely an incidental feature of the services rendered. Perlmutter v. Beth David Hospital, 308 N.Y. 100, 123 N.E.2d 792 [N.Y.Ct. of Appeals 1954]; Hidy v. State, 207 Misc. 207, 137 N.Y.S.2d 334 [1955]; Gile v. Kennewick Public Hospital District, 48 Wash.2d 774, 296 P.2d 662, 59 A.L.R.2d 761 [1956]; Dibblee v. Dr. W. H. Groves Latter-Day Saints Hospital, 12 Utah 2d 241, 364 P.2d 1085 [1961]; Koenig v. Milwaukee Blood Center, Inc., 23 Wis. 324, 127 N.W.2d 50 [1964]; Sloneker v. St. Joseph's Hospital, 233 F.Supp. 105 [Dist.Ct.Colo.1964]; Annotation--159 A.L.R.2d 777. However, this view is not without strong dissent. See the dissent in Perlmutter v. Beth David Hospital, supra; 69 Harv.L.Rev. 391 [1955]; 29 St. John's L.Rev. 305 [1955]; 103 U.Pa.L.Rev. 833 [1955]; 42 Minn.L.Rev. 640 [1958]; and 37 Notre Dame Law. 565 [1962].

In their brief, plaintiffs attempt to distinguish these cases, in that a suit against the hospital rather than a suit against the supplier is the subject of most of such cases. Since briefs were filed herein, the case of Balkowitsch v. minneapolis War Memorial Blood Bank, 132 N.W.2d 805 [Minn.1965], has been decided. That case involved an action against a regional blood bank of The American Red Cross to recover damages for personal injuries sustained when she contracted serum hepatitis from a transfusion of impure blood supplied by the defendant. The plaintiff's complaint alleged breach of warranty against the defendant for the 'sale' of blood. In...