The opinion
Mr. Justice Fraser,
dissenting.
This is an action for damages for personal injury. The plaintiff was suffering from appendicitis and under the advice of her physician, she went to the defendant hospital where the operation was to be
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performed by her own physician, under whose advice she went to the hospital. After the operation, and while the plaintiff was still unconscious from the- effects of the anaesthetic, she was turned over to a hospital nurse and put to bed in the hospital. As the plaintiff began to regain consciousness, she complained of burning up1. The plaintiff’s mother was with her and asked the nurse the cause of her daughter’s complaint. The nurse replied that the plaintiff was suffering from the effects of the anaesthetic only, and nothing was wrong. The complaints continued and the mother investigated the matter and found that the hot water bottles had not been removed from the bed, where they had been put to warm the bed to prevent shock from a cold bed. The plaintiff was seriously burned. She was kept at the hospital for several weeks on account of the injury and claims to' have suffered for a considerable time thereafter.
While there was a conflict of testimony as to- the extent of the injur}', there is no- dispute as to- the fact of injury or that it was negligence to leave the hot water bottles in the bed and put the plaintiff upon them.
The defense is that the defendant is an eleemo-synary or charitable corporation, and, as such, is not liable in damages for the negligence of its employees.
It seems that some worthy and charitable ladies in Co-lmnbia some years ago- established this hospital. That donations- were received from- several sources. Later the medical association took charge of the hospital under an agreement with the ladies. .The ladies retain certain free beds. The city sends its charity patients there. There are three classes of patients received: a. Charity -patients- who-, themselves, pay nothing, b. Ward patients, who pay a cheap rate.
2.
Patients who- have separate rooms; these pay more.
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There is serious question as to- whether there are, so far as the hospital is concerned, any charity patients. The city pays for its patients, and there was valuable property turned
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over to the present management by the ladies for the beds assigned to them; but this question need not obscure the issue. It is claimed that no- patients are turned away because they cannot pay. The plaintiff chose a ward .bed and agreed to- pay all that was demanded for a ward bed. After she left the hospital, she demanded her bill, but it was not furnished. It is claimed that the payments made by those in the ward beds did not fully meet the expenses of the ward beds, and they are in part, at least, charity patients. This opinion will consider the broad cjuestion presented here: Is a hospital with a charitable foundation liable to- patients for injuries caused by the negligence of the employees?
There is no case in this State on the subject, and for authority we must go- to- other jurisdictions. We are bound by our own decisions. We are not bound by the decisions of other State's. They are useful'as evidence o-f what the law is, and the testimony of these expert witnesses is to> be estimated, not by their number, but by their weight. The weight is to' be determined by'their conformity
to
well kno-wn principles o-f law. We have no- right to follow these witnesses when their testimony conflicts with well known principles of law, established in o-ur o-wn State.
Here is an association whose servant, it is alleged, has done- an injury and do-ne it negligently. To- the question; is the person, association, or corporation whose servant, acting within the sco-pe o-f his employment, has, in violation of a duty, produced injury to- another, liable? The answer, as a general rule, is-: It is liable. The doctrine
respondeat superior
is familiar and its application wide. There are exceptions, but that is the rule. When the question is asked, does this apply to- an institution- that has a charitable foundation, the answer is not uniform. The greater number of cases hold that the rule does- not apply. In so-me of the jurisdictions it is- held that the rule does apply and it will take legislative power to exempt them.
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It sometimes happens that there are conflicting principles of law that apply, and then it is the province of the Court to say which principle governs the case. Those who hold that a charitable hospital is immune from suits for damages to a patient, caused by the negligence of its employees, do not agree among themselves as to the conflicting principle. I will not discuss the cases separately. Their name is legion.
(a) Some hold that to allow recoveries for damages would be to assist in the destruction of a trust fund, and no Court can permit a destruction of a trust fund. Those who hold this ground of immunity do> not agree among themselves, for many of them qualify the statement of immunity with the statement “provided the hospital has not been negligent in the selection of the employees.”
Bruce
v.
Central M. E.
Church, 147 Mich. 230 , 110 N. W. 951 , 10 L. R. A. (N. S.) 74, 11 Ann. Cas. 160. Others say that, while a hospital is not liable to- patients under its care, it is liable to third persons.
Thornton
v.
Franklin Square House,
200 Mass. 465 , 86 N. E. 909 , 22 L. R. A. (N. S.) 487. What seems to us to be the inconsistency of these positions prevents us from following them. In the cases of damages for negligence in selecting employees and cases of damages for negligence of the employees, the destruction of the trust fund is the same. How is it a destruction of the trust fund ? l(t is said, here is a trust fund intended for good, and it must be preserved at all hazards. It is a principle of law as well as morals, that men .must be just before they are generous.' There is no' higher or more just principle than that a trust fund shall remedj'' the evil itself has done, before it attempts to remedy the evils done by others. We cannot follow this.
(b) Some of the cases say that the action should be. brought against the trustee, and, when he has paid it, he. can be reimbursed out of the trust fund. This needs no> comment.
(c) Some cases hold that the exception is based on an implied contract of immunity and make this statement (147
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Mich. 230, 110 N. W. 951 , 10 L. R. A. (N. S.)
74,
11 Ann. Cas. 159) : “They rest upon the principle, correctly stated in
Powers
v.
Massachusetts Homeopathetic Hospital,
109 Fed. 294 , 47 C. C. A. 122 , 65 L. R. A. 372, viz., that the beneficiary of such charitable trust enters into a contract, whereby he assumes the risk of such torts. It is not surprising that years should have elapsed before .the correct legal principle governing, these cases was announced in
Powers
v.
Massachusetts Homeopathic IPospital.
The discovery of correct legal principles, like the discovery of scientific and social truths, requires time and patient investigation.” That case (the Powers case) held that the contract was implied. We are told, in effect, that a patient entirely unskilled in legal principles, his body racked with pain, his mind distorted with fever, is held to' know, by intuition, the principle of law that the Courts after years of travail have at last produced. We cannot accept a rule based upon after-discovered reasons. We confess that it is new doctrine to- us that a Court will assume an implied contract to relieve against liability for future negligence.
The notes to 23 L. R. A., page 200, tell us that the doctrine of immunity from damage suits originally arose in cases in which hospitals were operated by governmental agencies. Of course, as a rule, a government is not liable for the negligence of it's • employees. If the doctrine had been confined to' its original declaration, there would have been no trouble; but, when the exempting circumstance does not exist, the immunity ought not to exist. The result of these holdings is that, where a small charitable foundation is secured, a hospital may be opened; patients secured, who- go there under an invitation that promises skilled physicians, competent trained nursés; advantages promised that cannot be secured at home; then, when the patients are secured, they may be neglected, burned with fire or vitriol, put into beds from which - other patients afflicted with contagious, loathsome, and it. may be disgraceful diseases have been
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taken, an-cl we are told there is no- remedy except to- sue, it may be, a poor, overworked, broken down, friendless, helpless woman. We are not reflecting on the appellant hospital, we are ready to believe that the injury here was simply one of those acts of inadvertence that sometimes befall the most careful of men and women. The -thing- to- which we protest is the absolute immunity given to- all hospitals that can secure a charitable foundation from the most brutal and inhuman treatment of those unfortunate men and women who- may be carried (sometimes without their knowledge or consent) within its walls, under an implied contract. It is said the patient is not without remedy—sue the woman.
(d) The income from the pay patients might be set apart to pay a judgment (in this case about $40,000 ,p-er annum), but some o-f the cases hold that the pay patients, when they enter a hospital' with a charitable foundation, are really Charity patients, and the weekly sum they are required to- p-ay are no-t payments at all, but'contributions to the charity fund. This is brilliant, but is no-t convincing. We think the first duty of every man- and the first call upon every fund is to repair the evil of its own doing, and then the remaining fund or remaining strength may be devoted to- charity. It may be said the hospital rules forb-id the taking of patients with contagious diseases. The contagious nature o-f the disease may not be known until too- late. If these hospitals are held to be immune, they may break the rule with imp-unity.
(e) Another reason given is that it is no-t in accord with public policy to- allow these good people to- be annoyed by damage suits. They are good people, but the legislature fixes the public policy of a State. The reason for this supposed public policy is not altogether clear. Is the damage suit an evil spirit invented by men to- harass soulless corporations and from its evil influence the good are immune? If so, they ought to- be abolished altogether. That is not the theory. The theory is that, in a damage suit for simple negligence, the evil o-f the past is compensated for, and for wil
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fulness, evil for the future is prevented. 32 Cyc., p. 1251, Public Policy. “The term has been said to mean the law of the State whether found in the Constitution, statutes, or judicial records.” There is nothing in the Constitution, statutes, or judicial records to warrant immunity. Public policy is not the opinion of a Judge as to what ought osought not to be. See
Magee
v.
O'Neill,
19 S. C. 185, 45 Am. Rep. 765 . The legislature of this State has in recent years passed several acts that remove the immunity from governmental agencies, such as cities and counties, and require them to respond in damages for injuries caused by-the negligence of their employees. We cannot, therefore, say that it is against the public policy of this State to' require the wrongdoer to pay damages caused by the negligence of employees. The foundation of the original doctrine has been destroyed in the State, and this offspring ought to die with it. The rule is clear and certain that, if a physician undertakes to attend a patient through charity, he is bound to exercise due care and skill and is responsible for negligence. If, however, several combine and subscribe a fund and call it charity (more'convenient still, if, as here, some one else will furnish the money), it shall cover a multitude of sins, and it makes no difference what happens, there are only two remedies. One is tO' close up the place as a public nuisance, and the other is to sue the woman. Neither of these is a remedy.
(f) If the proviso' “that they shall not be negligent in the selection of the employees” be law, then the use of the undergraduate as a nurse, to whose skill the school is unwilling to certify in a diploma, may be conclusive evidence of negligence. The proviso' is mere dictum and binds no one. The conflict between the doctrine of immunity and proviso is patent. Both cannot stand.
(g) We are told that they have an arrangement with the city to care for its poor." The hospital is net under the control of the city. The city might make an arrangement with
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a purely private institution. Therfe is some dangerously broad language in the statute as to municipal responsibility for negligence in things under the control of the city, and little help' can be derived from this association.
One of the Courts that denied immunity said that, in the administration of the trust, acts of negligence are as sure as that its administration should be committed to human hands, and it is not too. much to suppose that a right-minded donor should be held to have had in contemplation the general rule as to responsibility for its results. Compare that statement with the doctrine of an implied contract of releases from liability for future negligence, and it seems to' us that the weight of authority is with those few who* assert liability, and not with those who' assert immunity.,
Courts ought to follow established rules and not destroy them with unwholesome exceptions. Courts ought not to legislate, but, if they must, then their legislation should be wise and safe. We do not think it wise or safe to allow an institution to exist, with unlimited power to do' evil and make that institution powerless to repair the evil, because some good man or woman has contributed a fund and intended thereby to do good. We ought to see clearly the result of what we do. If the Courts can take no part of the corpus or income to- repair the evil that may be done, neither can the trustees. It would be a breach of trust for them, if the Courts so1 hold. There has never been a time when the world was subject to such rapid and fundamental changes in the art of healing as today. Truly the wisdom of yesterday has become the foolishness of today. It has not been long since the sick were told to' stay out of the night air, because the night air was deadly. Today the sick are told to sleep in the night air, because the night air is life-giving. Neither the constitution of man nor the constituent elements of the night air have changed. Every new doctrine has its believers. There are those who' believe in the inerrancy of the wise men of today, and have blind faith in the latest
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nostrum. There are those who- have aggressive disbelief in all things human, and believe that in the prayer of faith alone is there healing power. May -the devotees of either extreme erect their hospitals, the one to1 remove from the human body every organ they do- not understand and choose to call the “mistakes of nature,” the other to throw their patients upon a bed and leave them to suffér and to die while they pray, ignoring the revelation that “faith without work is dead,” and the Courts are powerless to repair the evil done? There may be unbounded funds from which some reparation may be made. Is there no way to make it ? We think there is. We think the Courts ought to hold the fund, first to repair the evil done by itself, because the purpose of the trust is to do good and not evil. We know a trust fund cannot be diverted to a different purpose from that for which it was created. That is established law and we want to further the purpose of the trust. The purpose of .the trust is to relieve suffering, and not to1 increase it, when, in the administration of the trust, suffering is increased, the purpose fails. The Courts that declare immunity are destroying and not maintaining the trust.
Mr. Justice Watts and Circuit Judges Wirson, Bowman and Rice concur in the dissenting' opinion of Mr. Justice Fraser.