PRESIDENT AND DIR. OF GEORGETOWN COLLEGE v. HUGHES No. 7761.
130 F.2d 810 (1942)
PRESIDENT AND DIRECTORS OF GEORGETOWN COLLEGE v. HUGHES.
United States Court of Appeals for the District of Columbia.
Decided June 30, 1942.
Mr. Henry I. Quinn, with whom Mr. Richard W. Galiher, both of Washington, D. C., was on the brief, for appellant.
Mr. Emmett Leo Sheehan, of Washington, D. C., for appellee.
Before GRONER, Chief Justice, STEPHENS, MILLER, VINSON, EDGERTON, and RUTLEDGE, Associate Justices.
RUTLEDGE, Associate Justice.
The appeal brings here for the first time the question whether a charitable corporation is liable for injury negligently caused by an employee acting in the course of duty. Issues of negligence and contributory negligence also are raised.
The plaintiff had judgment on a verdict, with special interrogatories. Defendant's motions for a directed verdict and to set aside the verdict were denied. The trial court's opinion, filed at the time of judgment, is reported in 1940, 33 F.Supp. 867. We affirm the judgment.
The court is in agreement concerning the issues of negligence and contributory negligence. The only question is whether there was substantial evidence to sustain the jury's findings. We think there was. Concerning the other and principal question, all agree that the judgment should be affirmed. But we differ as to the grounds upon which the decision should be placed. The trial court found that plaintiff was a stranger to the charity. Reserving the question of liability to a beneficiary, it held plaintiff entitled to recover. Chief Justice Groner, Justice Stephens and Justice Vinson concur in the result of the affirmance on that basis. They think that by the great weight of authority in the United States charitable corporations are responsible for the negligence of their servants in suits by strangers; and hence that the trial judge correctly ruled that the plaintiff (appellee) in the instant case was a stranger and therefore properly submitted the case to the jury on the questions of negligence and contributory negligence. They likewise think that the case on its facts presents no question as to the liability of charitable corporations for the negligence of their servants in suits by persons other than strangers and that no ruling should be made on that subject and therefore do not express themselves thereon. Justice Miller, Justice Edgerton and myself think the judgment should be affirmed on the broader grounds stated in this opinion.
I. Negligence and Contributory Negligence
On both issues the evidence was sufficient to go to the jury. Hence its findings for the plaintiff must be sustained.
The evidence to show negligence is, in part, that the student nurse and several others, in company with the head instructor, Miss Sandmaier, entered the ward just prior to the injury for an hour's work. Miss Sandmaier found some needed article was lacking and sent the student nurse for it. The latter turned and went hurriedly, not running, but walking very fast. Her own and other testimony describes her as rushing, not stopping at the door "because it was a swinging door," not looking through the wire mesh at the bottom to see if anyone were outside, not slowing or slackening her speed as she approached the door, pushing it, meeting an obstacle which fell, pushing it open again after it had swung back toward her, and finding the plaintiff lying on the floor. The testimony also showed that the morning was unusually busy, the article was needed quickly — "the work had to be done in an hour" — and the student nurse habitually rushed and hurried about her work. More need not be related.
At times things happen fast, and have to, in hospitals. When they do accidents may occur which the law must classify as negligence. The student nurse made things move. Ordinarily this would be commendable. Unfortunately that cannot relieve her act here of negligent quality. It was careless, because thoughtless and hasty. We cannot say that the jury could not find it was unreasonably dangerous to others.
The claim of contributory negligence is that plaintiff walked too closely to the door and failed to take due care regarding it, with full knowledge of the danger. The evidence, however, was not so one-sided as to require the case to be kept from the jury. The corridor was not a one-way street. It was only a few inches over six feet wide. Nurses were instructed to walk to the right of the center line. Plaintiff followed the instructions. She was told also to be cautious about the door. The distance from the center to the right side was only about three feet. Nothing shows that plaintiff was not keeping proper lookout for the door as she approached and passed it. She passed in safety. Only after she had gone by was she struck. Whatever might be true if this had taken place before she passed the door, we cannot say as a matter of law that she was bound to anticipate it would be pushed open with such violence as to strike her from behind after she had passed and throw her more than eight feet across the hall. Busy as the period was, it cannot be ruled she was required at her peril to keep her head turned or turning toward the door over her shoulder and backward to guard against so sudden, violent and wide an opening. Nor can it be said certainly that the danger to herself or others would have been greater or less, had she followed a path nearer the center or nearer the wall. There was not much leeway either way, and clearly she was not required to step beyond the center each time in passing the door. Her instructions required the contrary.
Written statements taken from various witnesses shortly after the accident were used to contradict their statements at the trial in some respects. So far as they did so, they merely created conflict in the facts or questions of credibility which also were for the jury. Taking account of all the circumstances, we cannot say plaintiff was contributorily negligent as a matter of law.
II. Liability of Charitable Corporations
We turn to the main question. It is an open one for the District of Columbia. At various times similar complaints have been dismissed on demurrer in the District Court. In only one case was there an appeal. White v. Central Dispensary and Emergency Hospital, 1938, 69 App.D.C. 122, 99 F.2d 355, 362, 119 A.L.R. 1002. The decision dealt with matters of pleading and expressly reserved for the future the determination of "the law of this jurisdiction in respect of the liability of charitable corporations in suits for negligence." The common law of Maryland was not established until 1885. Perry v. House of Refuge, 1885, 63 Md. 20,
A few further facts pertinent to this issue should be stated, in view of the trial court's finding that plaintiff was a stranger to the charity, and the importance the finding has assumed on appeal. She was a special nurse. She was called to duty and assigned to the case by the hospital's superintendent of nurses. The patient was a paying one, who also paid plaintiff and paid the hospital for her meals. The hospital furnished her working facilities. The arrangement was the usual one for special nurses.
Paradoxes of principle, fictional assumptions of fact and consequence, and confused results characterize judicial disposition of these claims.
On the other hand, scholarly treatment outside the courts is almost uniform. There is general agreement of such opinion in support of liability and against immunity.
A. Underlying Principles
We start with general principles. For negligent or tortious conduct liability is the rule. Immunity is the exception. Human beings ordinarily are responsible for their own legally careless action. They respond also for negligent harms inflicted by their agents and employees. So do business corporations. Likewise trustees and other fiduciaries generally are liable for their own negligence in administration and operation of the business or property committed to their control.
Generally also charity is no defense to tort.
Apart from charity, immunity does not turn on the technical form in which the legal interest is organized. Corporations, trustees, executors, administrators, receivers, as well as individual human beings and partnerships or their members, are responsible for negligence. Respondeat superior makes each liable for the tortious conduct of representatives acting in the course of the enterprise and not too far out of the proper sphere of duty. It is true that shareholders have limited liability and trust beneficiaries generally may not be held personally responsible. Normally, too, the trust fund cannot be reached directly, though breaches appear progressively in its classical immunity.
When an individual human being undertakes not simply an isolated act, but a habit or business of charity, without incorporating or casting it in the form of a trust, he does not acquire immunity. Possibly half the medical service rendered today is charity practice. So is a large share of legal service.
It is a strange distinction, between a charitable institution and a charitable individual, relieving the one, holding the other, for like service and like lapse in like circumstances. The hospital may maim or kill the charity patient by negligence, yet the member of its medical staff, operating or attending without pay or thought of it, dare not lapse in a tired or hurried moment. Cf. Bonner v. Moran, 1941, 75 U.S. App.D.C. 156, 126 F.2d 121; Christie v. Callahan, 1941, 75 U.S. App.D.C. 133, 124 F.2d 825. The institution goes free. The physician pays. Yet they render a common service, which the hospital could not furnish without him. The physician cannot incorporate. He cannot shield himself behind a trust. He cannot escape respondeat superior. His partner answers if he does. Cf. Christie v. Callahan, supra. So it is with the lawyer.
The basis of the distinction cannot be charity. It cannot be habit or continuity in charity. If it were either, individuals would be free upon proof of the fact, or institutions would be liable upon proof of the contrary in the particular instance. The distinction reverses the general trend of responsibility in a risk-sharing and distributing age. Institutions have a survival value no individual possesses. They withstand vicissitudes individuals cannot meet. It is probable that charitable ones resist demise more stoutly than business ones. Certainly they incur no greater risks. If charity should exempt either institutions or individuals, it should be the latter. But there should be no distinction. Unless motive is to replace duty, both should be liable and liable alike.
Nor should the legal form in which the charitable institution is cast create immunity. It is not altogether clear that it does, except possibly when the corporate form is used. Unless the normal law of trusts is modified, the trustee must go down in his pocket as other trustees do, though he cannot dip into the fund. But when the charity is incorporated, somehow charity plus incorporation creates a certainty of immunity neither can attain apart from the other. Because the directors do not hold the legal title to the corporate property and therefore are not "principals" as trustees are, though they have all the latters' control and more, there is no personal liability of the ultimately responsible management except when its members participate personally in the negligent action. When charity is incorporated, therefore, it takes on a cloak of immunity not granted it in other guises, and not granted in that guise to other activities.
B. Historical Background
Such an anomaly generally arises only through accident. It did so in this instance, though the accidental character of the origin has been lost in the fog of later decision. The doctrine of immunity of charitable corporations found its way into the law, like the so-called "trust fund" doctrine in the law of private business corporations,
The foundation of immunity in this country is the dictum of Lord Cottenham in The Feoffees of Heriot's Hospital v. Ross, 1846, 12 Clark & Fin. 507, 513, 8 Eng. Reprint 1508: "To give damages out of a trust fund would not be to apply it to those objects whom the author of the fund had in view, but would be to divert it to a completely different purpose." The action was for damages for wrongful exclusion from the benefits of the charity, not for personal injury inflicted in its operation. Previously, in Duncan v. Findlater, 1839, 6 Clark & Fin.
In this state of the English decisions, Massachusetts adopted the repudiated rule of Holliday v. St. Leonard in McDonald v. Massachusetts General Hospital, 1876, 120 Mass. 432, 21 Am.Rep. 529, and Maryland followed Heriot's case in Perry v. House of Refuge, 1885, 63 Md. 20, 52 Am.Rep. 495. Apparently both courts acted in ignorance of the English reversal. In any event, they resurrected in America a rule already dead in England, and thereby gave Lord Cottenham's dictum a new lease on life in the New World.
These facts have been the subject of comment.
But when it takes the form of a corporation, having no other business or assets, the trustees' liability disappears. There is no trustee to be liable. The different position of directors shuts off recourse to their assets and strips the victim of all claim except against the negligent actor. If the corporation itself is regarded as trustee, the result is the same, since ordinarily such a
C. The Confused State of Decision
It is doubtful that the so-called "rule" of full immunity ever represented the prevailing state of decision in this country. Conflict has existed from the beginning. Rhode Island repudiated the immunity just when Massachusetts and Maryland were adopting it. Glavin v. Rhode Island Hospital, 1879, 12 R.I. 411, 34 Am.Rep. 675. Nevertheless judicial discussion has set in the pattern that immunity is the rule, much of it without explicit recognition that the "rule" itself is an exception to general principles of liability.
Notwithstanding the pattern, the "rule" has not held in the tests of time and decision. Judged by results, it has been devoured in "exceptions." Debate has gone on constantly, not so much as to whether, but concerning how far it should be "modified," with ever widening modification.
It is perhaps impossible, if it were worth while, to make an exact summary of the present state of American decision or to determine with accuracy what is the "prevailing rule." An effort to do this made later discloses a tangled skein from which it is difficult to draw a thread of dominant strength, even on a numerical basis.
Notwithstanding this, the habit of statement remains long after results have contradicted it. Opinions continue to speak in the set pattern, often when holding only to the last remnant of irresponsibility and occasionally, as is noted later, when repudiating all grounds for retaining that. The judicial debate continues around the "modifications" which should be made. Nearly everywhere the question is, not whether the immunity is total, but whether (1) the plaintiff is one entitled to hold the corporation to payment; or (2) whether it should be charged for the act of a particular agent, servant, employee or other representative. Liability also turns here and there, apparently, on where the act occurs or its nature, such as driving an ambulance or a truck on the streets
From this welter of conflict, the following general, but none too sure conclusions may be made. Five states appear to have no decisions on the subject.
In thirteen of the remaining states, apparently, strangers are allowed to recover, but beneficiaries are denied relief.
The mere survey of the modifications in result raises question concerning their consistency and validity. A survey of reasons given to sustain them and reject others replaces doubt with conviction. The task has been done frequently, both judicially and extrajudicially.
Because others have done it so well and so often, we shall not make an extensive review of the reasons and policies supporting and working against general immunity. A few may be noted.
D. Policies Supporting and Negating Immunity
For it are various commonly advanced arguments: Liability would violate the donor's intention; misappropriate the funds to unauthorized purposes and to persons not within the intended class of beneficiaries; and in effect indemnify the trustees, if the charity is organized as a trust, against the consequences of their own or their subordinate's misconduct. More persuasive apparently, but hardly more substantial, are the frequently expressed fears that imposing liability would dissipate the fund in damages and deprive the favored class or the public of the charity's benefit. A variant is the assumed danger that donors would be deterred from creating the charity and from adding to its funds by subsequent donations. Other considerations are mentioned, but these are the principal ones.
The confusion comes to climax when attempt is made to modify the rule in some of the ways previously mentioned and to reconcile
These reasons therefore are not consistent with any of the modifications ordinarily made. They support general exemption and they negative one form or instance of immunity as much as another. The only sound arguments from them would be, first, for total immunity; second, for selection of the smallest class of claimants and the smallest or least-likely-to-be negligent group of agents or representatives, to whom and by whom liability would be incurred. The latter would reduce to the minimum the volume of dissipation and the deterrent effect, but would not escape, in a logical sense, violation of the donor's intention or the ultra vires effect of so applying the fund.
Taking the reasons for their logical consequence — total immunity — we find them not convincing in the light of modern conditions, both in the law and in philanthropy. Whatever its form, the doctrine of ultra vires, so strong in the nineteenth century, has shrunk constantly both in the law of private corporations
There are also reasons which take force away from the fears of dissipation and deterrence of donations. No statistical evidence has been presented to show that the mortality or crippling of charities has been greater in states which impose full or partial liability than where complete or substantially full immunity is given. Nor is there evidence that deterrence of donation has been greater in the former. Charities seem to survive and increase in both, with little apparent heed to whether they are liable for torts or difference in survival capacity.
Further, if there is danger of dissipation, insurance is now available to guard against it and prudent management will provide the protection. It is highly doubtful that any substantial charity would be destroyed or
Against this, we weigh the cost to the victim of bearing the full burden of his injury. In line with this view may be mentioned the general extension of workmen's compensation acts
Finally, in recent years the real deterrents to donation have been taxation, despite contrary inducements in deductions, and the fears of persons well placed for the future of large individual accumulations of property, arising from economic trends much more fundamental than making charitable institutions liable for their torts.
The chief arguments, therefore, for sustaining the immunity, namely, ultra vires action marked out by authority or intent of the donor and danger of destroying or preventing the creation of charitable institutions, no longer have, if they ever had, compelling effect. Changes in the law and in the organization and mores of community life have taken away their major force. That is true, whether for full or for modified immunity.
As against the factors favoring it, may be mentioned the tendency of immunity to foster neglect and of liability to induce care and caution; the departure from the general rule of liability; the anomaly of exempting charitable corporations and trust funds, when charity is not a defense to others; the injustice of giving benefit to some at the cost of injury to others and of the injured individual's having to bear the loss wrongfully inflicted upon him, at a time when the direction of the law is toward social distribution of losses through liability for fault, liability without fault, and legislation which gives the person disabled to work what is commonly but inaccurately called "social" security. There are others we do not stop to mention.
It is hardly necessary to discuss the various theories of exemption or their application in various modifications. Whether immunity be founded on the "trust fund" theory,
E. The So-Called "Stranger-Beneficiary" Distinction
We think it does not matter whether the plaintiff is stranger or beneficiary. Whether the one or the other is denied recovery, the distinction is without justice or legal justification. To give it to a stranger but not to a beneficiary makes the latter accept succor at the risk of greater harm. When it occurs he bears a burden which should fall on all alike, not on him alone. On the other hand, no one has the right to have cure or care at the cost of harm inflicted upon another. To allow recovery to the beneficiary, but deny it to the stranger, would unload on the latter in some part not only the cost of care and cure, but the cost of injury to the former.
Furthermore, it is not easy to hew to the line and the chips do not fall consistently where they should lie. The distinction is not tenable upon any of the foundations asserted to support the immunity. Because the court's division is on this line, we spell out the matter, though others have done it beyond need of repetition.
If immunity is founded on some form of ultra vires premise, there is no room for treating strangers and beneficiaries differently. Paying damages "violates the donors [assumed] intention" and "misappropriates the fund to unauthorized purposes" as much in one case as in the other. If the matter is regarded as "diverting the fund to persons not within the class intended for aid," it is impossible to assume that the donor intends everyone except the special object of his
No more tenable foundation exists in considerations of preserving the fund, preventing its dissipation, depriving the intended class or the public of its succor, cutting off creative or sustaining donations, and the like. The reasons already stated to show that these do not support unqualified immunity apply with equal force to a limited one, whatever its form or extent. If damages dissipate the fund or deter donations, they do so equally whether paid to a stranger or to a beneficiary. When account is taken of the numbers in both classes and the probable burden of risk toward each, the heavier risk perhaps is incurred in favor of strangers.
In hospitals, for instance, the stranger group generally includes all except patients, in some states all except nonpaying patients. Physicians, nurses, including special ones, those regularly employed and others in training, orderlies, laboratory technicians and assistants, business officers and office employees, maids, janitors, kitchen and cleaning help, all who render aid to the patient directly or indirectly, make their livelihoods doing so, and carry on the work of the institution, are within the "stranger" class. So is the minister or priest who comes to give comfort or administer the last sacrament. Likewise the relative, friend or stranger who visits the sick. Delivery men and others who have business to do on the premises may recover if they are injured. The ambulance driver or operator of the hospital's truck is protected, as is the person he negligently runs down on the street.
If preservation of the fund or encouragement of donation required immunity, neither could justify the distinction. If the charity can assume the risk as to all the rest of the world and survive, it can do so for those it is designed to help. Neither the number of claims nor their amount will be greater in their behalf than for others. It is probable both would be smaller, because the class is so and because it is present in circumstances ordinarily conducive to precaution and care.
The remaining foundations also crumble under the distinction. Inappropriate to the charitable corporation, as has been shown, is the idea that recovery in effect indemnifies the trustees against the consequences of their own or their subordinates' wrongs. It is equally so whether stranger or beneficiary is reimbursed.
Finally, the idea of waiver is advanced, namely, that the beneficiary by accepting the tendered aid impliedly agrees that is all he may accept and waives any right of recourse for wrong done, while strangers do not do so. The notion that there is any such agreement or waiver is entirely fictional. In some instances the fiction is based upon impossibility, as when a patient is unconscious from whatever cause when he enters. So, also, when he is received not by arrangement of his own but of others and has no voice or choice in the terms. Infants of tender years, if not those more mature, and insane persons have no legal capacity so to will away their rights.
It remains only to point out more fully the effects of the conflict in deciding who is
Abolition of the immunity as to the paying patient is justified as the last short step but one to extinction. Retention for the nonpaying patient is the least defensible and most unfortunate of the distinction's refinements. He, least of all, is able to bear the burden. More than all others, he has no choice. He is the last person the donor would wish to go without indemnity. With everyone else protected, the additional burden of protecting him cannot break the trust. He should be the first to have reparation, not last and least among those who receive it. So stripped of foundation, the distinction falls. It should fall in line with, not away from, the trend which has brought it about. The immunity should go and the object of the charity should be placed on a par with all others.
We think, therefore, the trial court was right in allowing plaintiff to recover. But this is not, as it held, because she was a stranger to the charity. We do not undertake to say whether she was stranger or beneficiary. She was trained in the hospital. She worked there many years. When she did, it was at the hospital's summons and she was, partially at least, under its control. In a sense she was beneficiary more than most patients. We think she should recover because she was injured by the negligence of the hospital's employee while the latter was discharging its business in the course of her employment.
We return therefore to the starting point. The law's emphasis ordinarily is on liability, not immunity, for wrongdoing. Respondeat superior has widened it in an institutionally, and to a large extent corporately, organized community. Charity is generally no defense. When it has been organized as a trust or corporation, emphasis has shifted from liability to immunity. The conditions of law and of fact which created the shift have changed. The rule of immunity is out of step with the general trend of legislative and judicial policy in distributing losses incurred by individuals through the operation of an enterprise among all who benefit by it rather than in leaving them wholly to be borne by those who sustain them. The rule of immunity itself has given way gradually but steadily through widening, though not too well or consistently reasoned, modifications. It is disintegrating. Each modification has the justification that it is a step in result, if not in reason, from the original error toward eventual correction. As more and more steps are taken, correction becomes more complete. The process is nearing the end. This leaves the steps untaken standing out as the more anomalous.
In taking this view we are not unmindful that charitable institutions perform a high service in the community. In days when the state was less mindful of individual need, they gave a helping hand not otherwise held out to large numbers of people. They still do so. They recently have faced, and still face grave problems. Purse strings no longer are loose, as they were before world wars and world-wide depressions. But individuals and business institutions face similar uncertainties. It does not recompense injured persons that the loss is inflicted by charitable institutions, nor should they alone bear it because all together face a hard future. For reasons already stated we do not believe the survival of charities will turn on whether or not they must answer for their wrongs to persons they are formed to help. There may be some added expense of operation. It may be no more than the cost of litigating these
The judgment is affirmed.
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