Williams v. Union County Hospital Ass'n

• Decision Date: 21 November 1951
• Docket Number: No. 525,525
• Citation: 67 S.E.2d 662,234 N.C. 536
• Court: North Carolina Supreme Court
• Parties: WILLIAMS, v. UNION COUNTY HOSPITAL ASS'N, Inc.

Page 662

67 S.E.2d 662

234 N.C. 536

WILLIAMS, v. UNION COUNTY HOSPITAL ASS'N, Inc.

No. 525

Supreme Court of North Carolina.

Nov. 21, 1951

Covington & Lobdell, Charlotte, for plaintiff appellant.

J. Laurence Jones and Jno. H. Small, Charlotte, for defendant appellee.

BARNHILL, Justice.

When new matter is alleged in an answer by way of an affirmative defense, the sufficiency of the plea as a defense to plaintiff's cause of action may be tested either by demurrer or by motion to strike. Both remedies are available to plaintiff. Each is an appropriate method of testing the sufficiency of the plea as a defense to plaintiff's cause of action.

'The plaintiff may in all cases demur to an answer containing new matter, where, upon its face, it does not constitute a * * * defense; and he may demur to one or more of such defenses * * * and reply to the residue.' G.S. § 1-141; Williams v Thompson, 227 N.C. 166, 41 S.E.2d 359; Commerce Insurance Co. v. McCraw, 215 N.C. 105, 1 S.E.2d 369.

As new matter which has no substantial relation to the controversy and presents no defense to the action is irrelevant and immaterial, the plaintiff may, instead, elect to move to strike as provided by statute. G.S. §§ 1-126, 1-153; Patterson v. Southern R. Co., 214 N.C. 38, 198 S.E. 364; Brown v. Hall, 226 N.C. 732, 40 S.E.2d 412.

Decisions in the various jurisdictions on the question of liability of an eleemosynary or charitable corporation for the results of its negligence and the negligence of its employees evidence much contrariety of opinion. 10 A.J. 687, § 140, et seq.; Herndon v. Massey, 217 N.C. 610, 8 S.E.2d 914. Even so, the doctrine of liability of such corporations as adopted and applied in this jurisdiction is settled by a uniform line of decisions. Barden v. Atlantic Coast Line R. Co., 152 N.C. 318, 67 S.E. 971, 49 L.R.A., N.S., 801; Hoke v. Glenn, 167 N.C. 594, 83 S.E. 807; Johnson v. City Hospital, 196 N.C. 610, 146 S.E. 573; Cowans v. North Carolina Baptist Hospitals, 197 N.C. 41, 147 S.E. 672; Herndon v. Massey, supra; Smith v. Duke University, 219 N.C. 628, 14 S.E.2d 643; Anno. 109 A.L.R. 1199.

After discsussing the conflicting viewpoints expressed by other courts, Allen, J., speaking for the Court in Hoke v. Glenn, supra, [167 N.C. 594, 83 S.E. 809.] says:

'We prefer to adopt the middle course, which exempts (charitable corporations) from liability for the negligence of employes and requires the exercise of ordinary care in selecting them, as more consonant with authority and with the purposes for which such institutions are established. * * *

'In the application of this principle, the distinction between the negligent act of the employe and the negligence of the corporate body in selecting employes must be kept steadily in view, as it is only the latter which creates liability.'

And in Johnson v. City Hospital, supra, [196 N.C. 610, 146 S.E. 574.] Brogden, J., speaking to the subject, says: 'The boundary line between the liability of hospitals operated upon the basis of charity and not for the purpose of profit or gain, and those operated for such latter purpose is clearly marked. ' The principle seems to be generally recognized that a private charitable institution, which has exercised due care in the selection of its...