Emery v. Jewish Hospital Ass'n , 193 Ky. 400 ( 1921 )

Dissenting Opinion by

Judge Thomas.

The writer, with some misgivings, consented to and wrote the opinion in the ease of Cook, Admr. v. John N. Norton Memorial Infirmary, 180 Ky. 331, which was an action to recover damages for the death of a patient alleged to have been produced by the negligence of the institution, which was a private charity. Ilis investigations since then, particularly in the instant case, have not served to remove the doubts then entertained concerning the soundness of the reasons given by the various courts, including this one, as a basis for immunity from liability of such institutions in actions against them, seeking the recovery of damages for personal injuries, though not resulting in death. If death follows it is difficult to see why the provisions of section 241 of the Constitution would not afford an action for damages against the corporation which neither the legislature nor the courts could withhold. In the Cook case the applicability of the section of the Constitution referred to was neither raised nor discussed iby either counsel in the case, and, as the writer remembers, it was not mentioned during its consideration by this count. Out of respect for, and adhering to, the doctrine of stare decisis, I am disposed to follow the rule of this court in granting' immunity in such cases in actions for damages by patients of the institutions where only personal injury and not death occurred, though the annotation to the case of Roosen v. Peter Bent Brigham Hospital, 14 A. L. R., beginning on page 572, conclusively shows that the disposition of the courts is to recede from any of the grounds upon which the immunity has heretofore been placed, because none of them find sufficient support in logic or reason. Many of the cases in that annotation attack the “trust fund” doctrine, even as applicable to patients, upon the ground that no one has a legal right to create a trust and invest the trustee with immunity from the consequences of his or its negligence. The reasoning is that the courts hold the contributor to the trust liable for failure to exercise ordinary care when ho assumes the role of a good Samaritan without pay, as is illustrated in the case of Gates v. C. & O. Ry. Co., 185 Ky. 24, and eases referred to therein. Equally fallacious is the rule which bottoms the non-liability upon the ground that the institution is performing a public function and to that extent relieves the state of some of its burdens. All the cases adopting that ground concede that if it was an individual operating the charity he could not claim the immunity on that or any other ground, although he would be performing and discharging with his own means a public function the same as a charitable institution does with its funds. Moreover if the immunity is allowed upon that ground, to institutions which care for the diseased and afflicted, it should also apply to any other institution performing an equally important public function, and immunity would be thus extended to all colleges, universities and institutions of learning which are engaged in carrying out the declared public policy of the state to educate and train its youth for better citizenship. Again, if the “trust fund” theory is sound, as enhancing and protecting a sound public policy, it is difficult to perceive why a municipality could through its negligence be made to appropriate any part of its trust fund created entirely by donations of its citizens in the form of taxes, and this too, though the corporation be indebted to the limit allowed by the Constitution, as is held in the cases of Hopkins County v. St. Bernard Coal Co., 114 Ky. 153, and Menar v. Sanders, 169 Ky. 285.

In my humble opinion the only feasible ground upon which the immunity extended to such institutions for negligence towards patients (not resulting in death), is that of “implied waiver” by the patient, individually, or by the one who acts for him, as his agent, when he enters the institution; but even this is doubtful, and it would seem from a thorough study of the question that the whole doctrine of such immunity is based upon sentimental grounds rather than reasonable and logical ones. But, as said at the beginning of this dissent, and for the reasons stated, I am willing to not disturb the rule heretofore adopted by this court in allowing the immunity in actions seeking recovery by only injured patients.

But this case, however, does not involve the right to a recovery for an injury to a patient hut to a servant, and that, too, for negligence growing out of the violation of .a penal statute enacted in furtherance of a wholesome public policy. The opinion not only extends the immunity, allowed in actions by patients of the corporation, to actions 'brought by its injured servant, but likewise extends it to actions by strangers as well, and even excuses the institution from prosecution raider, and from payment of the penalties provided by, the statute which it is charged to have violated, for it says that the persons who employ the.servant and “who set a youth to an unlawful occupation, may have imposed upon them the penal consequence's of the statute, in addition to the civil liabilities incurred,” which would seem to imply that in as -much as the institution was not liable civilly, though its individual agents or managers were, it would neither be liable criminally, because only the same managers and servants would incur such liability; and al'l such protection is extended, according to the opinion, because of the trust nature of the fund with which the institution is operated, 'and perhaps also because it is performing a public function, both of which I have heretofore briefly referred to and which I will next further elaborate.

The opinion, however, in excusing the corporation for liability for injuries inflicted upon a servant is not only sustained by unsatisfactory reasoning but it runs counter to the great majority of the cases of other jurisdictions wherein the question was presented. The supreme courts of Michigan, Minnesota, New Hampshire, New York and Texas have each denied non-liability to such institutions in actions against them by servants, though some of them, if not all, extend immunity to actions by patients..

In the annotation, supra, beginning on page 581 of the volume referred to, will be found a list of the cases from those states dealing with the rights of a servant to maintain ,an action, and only two states in the Union, Massachusetts and Missouri, sustain the doctrine of the majority opinion in denying liability for injuries inflicted upon servants through the negligence of the institution. In only one reported case, so far as the writer has been able to ascertain, has the question arisen of the liability of such institutions to servants where the injury was infiicted as a result of the non-observance of the requirement of a statute, and in it the court held the institution liable, the case being McInery v. St. Luke’s Hospital Association, 122 Minn. 10, 46 L. R. A. (N. S.) 548. So that the majority opinion is not only against the great majority of opinions wherein the rights of a servant were involved, but it is directly opposed to the only case wherein the concrete question here presented was involved.

It might be said that the Child Labor Law does not by its terms attach civil liability for its non-observance, but only fixes a penalty therefor, yet, as we have seen, the majority opinion would excuse the defendant in this case from liability for the penalty fixed by the statute for the non-observance of its provisions. Furthermore, this and other courts have uniformly held that an action for civil liability would arise upon the violation of the terms of such statutes resulting in injury to others. In other words, that .at least a presumption of negligence follows such violations, and it is not unreasonable to say that the interpretations of penal statutes thus given become a part of them quite as much so as if the interpretation had been written in them. Bishop on Non-Contract Law, sections 71, 279, 355 and 424; Bishop on Criminal Law, vol. 1, section 264, and 1 Corpus Juris, 954-957, inclusive.

An illustrative case from this court is Louisville Trust Co. v. Morgan, Admr., 180 Ky. 609, where the operators of the Seventh Avenue Hotel in Louisville had failed to comply with section 2095a of the Kentucky Statutes, which is an act passed by the legislature .at its 1914 session and requires under conditions therein stated that the character of buildings therein named shall be provided with certain described fire escapes on the outside of the building, and that other enumerated precautionary measures shall be taken to prevent damages and injury to the inmates by fire. A fire occurred and one of the guests of the hotel lost his life, and his administrator sued the hotel company to recover damages therefor, which action this court upheld. Other cases bearing upon the same point are, Casperson v. Michaels, 142 Ky. 314; Sanitary Laundry Co. v. Adams, 183 Ky. 29, and others therein referred to. In the last two cases the negligence consisted in violations of the child labor statute, the same one here involved. But, our statute (section 466) puts the matter at rest. It .says: “A person injured by the violation of any statute may recover from the offender such damages as he may sustain by reason of the violation, although a penalty of forfeiture for such violation be thereby imposed.” Cases in which the section was applied by this court are L. & N. Ry. Co. v. Haggard, 161 Ky. 317; L. & N. Ry. Co. v. Cooper 164 Ky. 489, and Simmons v. Vaughan and Blackwell, 165 Ky. 167. That section, therefore, became a part of the Child Labor Law upon its enactment as much so as if it had been incorporated therein and created the right to a civil action for damages resulting from its non-observance the same as fixing a penalty therefor.

But, I will not further elaborate this dissenting- opinion, having satisfied myself with briefly stating my position. I cannot refrain, however, from saying before closing that if the doctrine of the majority opinion is to be as sweepingly applied as its terms would allow, then this court has created an artificial individual who, like the King in ancient tyrannical days, can do no wrong. It has set that creature above and beyond the operation of the highest public policy of the state, i. e., an enactment of the legislature, which, to say the least of it, to my mind, can be 'sustained by no character or kind of reasoning. Of course, the statements in the opinion relating- to the non-liability of corporations engaged in private charity work in actions based on their negligence toward strangers, and their immunity from penalties for non-observance of a statute applicable to all alike, is obiter, but since the reasoning of the opinion is as applicable to the two cases included in the dictum as it is to cases disposed of, the dictum will most likely be adopted when the question is presented.

I deem it pertinent to incorporate an excerpt from the annotation, supra, found on page 585 of the volume referred to, saying: “One consideration seems to have been overlooked by the cases in this and the preceding subdivision (liability to strangers and to servants). The basis of charity is, above everything else, voluntary benevolence. When a stranger or an employe is maimed ox-killed by the operations of the charity, and compensation is denied him, or those dependent on him, in order to save the funds of the charity for charitable work, he and those dependent on him, are /compelled to 'Contribute his life and their support against their will to charitable purposes, which makes a farce of the whole charitable idea, and no decision founded upon suck a principle can be regarded as sound under modern conceptions of justice.” This embodies tlie final conclusion of the very able editorial staff of that most excellent publication.

For the reasons thus briefly stated, and others which might have been, I respectfully dissent from the opinion of the court.