Sessions v. Thomas D. Dee Memorial Hospital Ass'n.

It is again necessary to say this is an action for the wrongful death of Joseph Sessions, a minor son of plaintiff. The facts and principles of law relating thereto were discussed in the opinion when the case was before the court on a former appeal. It is reported in 89 Utah 222, 51 P.2d 229, 231.

The case comes before us upon a general demurrer as it did on the former appeal. It may be found necessary at times to refer to or quote parts of the opinion in the case when here on the former appeal. After stating, in general, the stated or admitted facts, this court said in relation to allegations of corporate capacity and purposes that:

"It would not appear to be necessary to plead the nature of a corporation in order to state a cause of action. A corporation is bound as to its [corporate] purposes by the statements in its articles of incorporation. Whether the articles of incorporation upon their face purport to create an organization for charity or [one] for pecuniary profit may be determined in so far as the corporation is concerned from the articles themselves, and may not be changed or modified by parol evidence; but whether a stranger may show the real character of the association by evidence aliunde the articles [of incorporation] is an open question in this state (Gitzhoffen v. Sisters of Holy CrossHospital Ass'n, 32 Utah 46, 88 P. 691, 695, 8 L.R.A. (N.S.) 1161), and one on which there may be diversity of opinion. Incidentally, this latter will be involved in the further discussion of the principal question. For a complaint to be good against a general demurrer, we think a plaintiff is not required to plead, in so far as corporate existence is concerned, the nature or purposes of the corporate defendant."

In the former opinion, it was also said:

"The fact that an association is organized with or without capital stock is a matter of proof, and as such may weigh for or against its claimed charitable character. So may the matter of whether the institution exacts payment for all patients, or only a part of them, or none of them. So may the manner and amount of profits or accumulations, if any, and the purposes and manner of distribution or use thereof, whether the institution may be privately owned and the nature of that ownership and use, the activity engaged in — all are matters of evidence. The use or service to which the institution devotes its property, and the ultimate ends to be attained, may be important for consideration."

The foregoing and other statements made in the opinion were directed to matters that may be considered in determining the type or character of the institution, as an institution.

After the remittitur was filed and the demurrer to the complaint was overruled in pursuance of the order of the court, the plaintiff, without waiting for the defendant to answer or set forth its character, asked and obtained permission to file an amended complaint. This was allowed. Because of the completeness with which all the facts are alleged, and the point to which the issue has been narrowed, although lengthy, it is deemed worth-while to set out much of the complaint and the exhibits as found in the transcript, condensed as much as possible consistent with retention of the historical or narrative part of the complaint, the facts alleged tending to construct a charitable institution, and the matters presenting the cause of action arising out of negligence upon which the claimed right to recover is based.

The Thomas D. Dee Memorial Hospital Association is alleged to be a corporation under the laws of Utah, and engaged in maintaining, operating, and conducting a general hospital; caring for sick, injured, diseased, and infirm persons or others for which compensation is charged and received. Other powers and purposes are indicated to be the power to acquire, own, hold, operate, and invest in and sell real and personal property. Originally the corporation was capitalized for $500,000 and became the owner of certain described real estate. The Thomas D. Dee Company erected the original hospital as a memorial to Thomas D. Dee.

On February 3, 1910, the heirs of Thomas D. Dee formed a corporation known as the Thomas D. Dee Memorial Hospital Association. At that time it is alleged the property was valued at approximately $75,000 and $10,000 was contributed by the citizens of Ogden for equipment. A home and a training school for nurses and student nurses has been acquired and maintained at a cost of approximately $35,000. In 1914 the trustees proposed to return the property to the Thomas D. Dee heirs because of want of sufficient income to continue the operation of the hospital. Learning of the proposed action of the hospital trustees, the presidency of the Weber, North Weber and Ogden Stakes of the Mormon Church offered to accept title to and assume responsibility for the continued operation and maintenance of the hospital, including assumption of the indebtedness. The offer was accepted and the property was conveyed and released from the reversion provisions of the trust and a new board of trustees was appointed by the "Trustee in Trust of the Church of Jesus Christ of Latter Day Saints," pursuant to authority so provided in the amended articles of incorporation.

It is pointed out that during the years 1932 to 1935, charitable services were rendered as follows: 1932 — $13,913.87; 1933 — $10,712.53; 1934 — $9,013.94; 1935 — $10,349.70; and that the gross income during the same period from all sources was: 1932 — $171,814.38; 1933 — $172,018.30; 1934 — $201,059.07; 1935 — $207,467.49; and that the hospital has expended large sums of money in erecting buildings and securing equipment from funds received from donations and income.

Patients who were able to pay were charged standard charges. Certain societies, by contract, have had patients cared for — especially children — at reduced rates. No dividends or profits have been paid. All resources, including donations, have been used exclusively for the payment of expenses and making improvements. There is no capital stock. No taxes have been assessed against the property or paid since 1914.

"That on or about the 29th day of March, 1934, plaintiff's minor son, to-wit, Joseph Sessions, age six years, was received at the defendant hospital as a patient, and that said defendant undertook for pay, to furnish said minor with board, lodging, operating room, medicines, competent nurses to care for him, and to perform a surgical operation upon said minor, and furnishings and care after said operation.

"That the plaintiff in this case paid the regular charges to the defendant hospital for the care of his son, Joseph Sessions, while his son was confined in said hospital, and that said patient was not a charity patient."

That immediately before the operation was commenced said minor was reduced to a state of unconsciousness by the administration of an anaesthetic and said minor's appendix was removed; that said operation was successful and said minor recovered therefrom.

"That said minor, to-wit, Joseph Sessions, at the time he was admitted to said hospital was of the age of six years, and was a strong, able-bodied boy in perfect health, both mentally and physically, except said appendix ailment, that he was capable and able to render aid, assistance, society and comfort to plaintiff. That he was capable and able to live and reach his majority and to live many years thereafter, with an expectancy to live to the age of approximately fifty-seven years, as shown by the American Mortality Table, and that during all of said time he would be capable and able to render aid, assistance, society and comfort to plaintiff."

That on or about the 30th day of March, 1934, the doctor ordered that said minor be given an injection consisting of one-fourth grain of codeine. That it is the duty of the employees of said hospital, to wit, the nurses, to administer said drug. That it is the duty of the supervisor of the nurses of said hospital to issue said drug for administering from the medicine room. That at said time and place, an employee of said hospital, who was the supervisor of nurses at the hospital, and another nurse who was an employee of said hospital, had the care of said minor, Joseph Sessions. That the supervisor of nurses, as an employee of the defendant, had full and complete charge and custody of the medicine room belonging to the defendant, which said room contains the medicines and drugs to be furnished for pay to patients of said hospital. That the supervisor of nurses at said hospital had the complete charge and custody of the keys to said medicine room.

That it was the duty of the supervisor of said nurses as an employee of defendant to issue the aforesaid codeine which was to be administered to said minor, but, notwithstanding said duty to issue said codeine, she carelessly and negligently permitted a student nurse, who was then and there training in said hospital to become a nurse, and who had only been in training seven months, to take the keys to said medicine room and to then and there obtain and prepare said codeine, which said codeine, together with other medicine and drugs, was in said medicine room.

That said student nurse carelessly and negligently put up and prepared, instead of the codeine, a drug known as morphine, and then and there administered said morphine by injection of the same into said minor, and that from the effects of said morphine so administered said minor died.

That it was the duty of said defendant hospital, its servants, agents, and employees, to exercise reasonable and ordinary care, skill, and prudence in their conduct and care of said minor. That said defendant hospital, its servants, agents, and employees, failed and neglected to exercise reasonable or ordinary care, skill, and prudence in caring for said minor, and that it negligently, carelessly, and with a lack of ordinary or reasonable care or skill administered a poisonous drug to said minor as aforesaid; that by reason of said neglect, carelessness, and negligence and lack of skill on the part of the servants, agents, and employees of the defendant hospital and while under said hospital's employment and within the scope of their employment, and as a proximate result thereof, said minor died. Damages are alleged.

There are attached to the complaint as exhibits an affidavit for the organization of the hospital association constituting its articles of association, by which it is provided that the association has power to receive gifts, donations, devises, and bequests, and charge and receive compensation for nursing and treating patients and to nurse and treat patients free of charge; to hold property, borrow money, execute mortgages, lease and convey real property, and general provisions relating to the operation and maintenance of a general hospital.

To the amended complaint a demurrer was filed, alleging for cause: "That said amended complaint does not state facts sufficient to constitute a cause of action." The demurrer was sustained. The plaintiff elected to stand upon his amended complaint and refused to further plead. The court thereupon entered judgment of dismissal of the action. As heretofore indicated, plaintiff has taken this second appeal.

Three assignments of error have been made to the decision of the trial court. They are:

"I. That the Trial Court erred in sustaining defendant's general demurrer to plaintiff's Amended Complaint, which said demurrer is in the following language:

"That said Amended Complaint does not state facts sufficient to constitute a cause of action against this demurring defendant:

"(1) For the reason that plaintiff in his Amended complaint endeavored to set forth the organization, incorporation, and general operation of the defendant hospital, to show how said defendant hospital came into existence, under what circumstances it was incorporated, and the general operation thereof, including the reception of patients for pay for treatment and for operation, and that the defendant hospital charged and received compensation for nursing and treating patients, and that its Articles of Incorporation authorized it to sue and be sued.

"(2) Also showing the gross annual income of said hospital during the years of 1932 to 1935 inclusive, as well as the amount of charity dispensed through hospitilization for said years.

"(3) Also the amounts of money spent for improvement to said hospital from the year 1915 to and including the year 1929.

"(4) That said defendant hospital expects every person admitted to said hospital to pay the regular rates but that it does not always receive said money but aims to collect it in all cases.

"(5) That defendant through its attorneys argued before the District court that an eleemosynary or charitable institution is not liable for the negligence of itself or its servants, agents, or employees, except negligence in the selection of its said servants, agents, or employees, to-wit, its nurses. The adjudicated cases in the State of Utah have definitely decided that where a hospital received a patient for pay or compensation, it is precluded from making the claim that the patient was received and treated by it through mere charity. The defendant having demurred generally to the plaintiff's Amended complaint, admits the truth of all of the allegations of the Amended complaint; that paragraph XIX alleges ``said defendant undertook for pay to furnish said minor with board, lodging, operating room, etc.,' and this admission of the defendant has the effect of precluding the defendant from making the claim that the patient was received and treated by it through mere charity, because the defendant cannot admit that it received the patient for treatment for pay and then claim that it received the patient gratuitously.

"II. The Trial court erred in sustaining said general demurrer and in giving plaintiff the right to file a second Amended Complaint:

"(1) On the grounds and for the reason that the general demurrer under the laws and decisions of this State admit the truth of the allegations of plaintiff's Amended Complaint, and we submit that said Amended Complaint, which sets forth facts sufficient to enable the Court to determine the organization, incorporation, and general operation of said hospital, does state a cause of action.

"(2) That under and by virtue of the allegations contained in Paragraphs XIV, XVI, and XIX and XX of plaintiff's Amended Complaint, to-wit: That patients are charged the standard charges for hospitalization and that the defendant hospital received the minor son of plaintiff as a patient for pay and that the plaintiff paid to said hospital the regular charges for the care of his son and that said patient was not a charity patient, stated a cause of action and showed that defendant hospital was not charitable or eleemosynary.

"(3) It is now definitely shown through those paragraphs as well as the other allegations in said Amended Complaint that by the operation of said defendant hospital, it is not a charity or eleemosynary institution, and we further submit that the District Court could not assume from said Amended Complaint that the defendant hospital was a charitable or eleemosynary institution but that said District Court should have found from the allegations of plaintiff's Amended Complaint that defendant hospital was not a charitable and not an eleemosynary institution.

"III. The Trial Court erred in signing, filing, and entering its order and judgment dismissing said action for the reason as stated in our support of assignments I. and II. herein and for the further reason that said demurrer should have been overruled and the defendant given time to answer plaintiff's Amended Complaint."

It may appear somewhat superfluous to state so fully the pleadings. It is apparent, however, that the purpose of the pleading was to allege facts from which it may be inferred or concluded that an institution is a charitable one in so far as its purposes and aims are revealed from what may be termed its internal organization aspects, or its institutional setup as an institution is concerned, and as revealed by the alleged powers, functions, aims, and operations of the defendant, are competent and material in characterizing an institution.

When an institution, association, person, or corporation undertakes by contract for pay to perform a specified service, such as set out in the plaintiff's complaint, may the defense of a "charitable" shield, as against a pleaded and admitted negligence, be invoked? Direct answer to this question was not necessary to the decision of the former appeal. Mr. Justice Folland was of the opinion that we had come too near to an answer without an answer; and Mr. Justice Wolfe was of the opinion that the question should have been fully answered on the former appeal. Be that as it may, the court was unanimous in the opinion that the former complaint stated a cause of action. The question again here is: Does the complaint, the allegations of which have been summarized, state a cause of action?

Reference to the former opinion may be had for a discussion of many of the cases cited in the instant case. No attempt will be made to classify the cases, at least more than in a general way. Harmonize them, we cannot. The most, in fact the only thing, that may be done, is to select the basic principle and then accept the conclusion, lead where it may.

In the law of tort — particularly that branch relating to unintentional harm, commonly referred to as negligence — when one invades the interest of another to his damage, a cause of action is said to arise in favor of the one injured and against the one or those responsible for the injury. The elements of a cause of action for negligence as stated in the 1 Restatement of the Law of Torts, § 281, vol. II, are:

"The actor is liable for the invasion of an interest of another if: (a) the interest invaded is protected against unintentional invasion, and, (b) the conduct of the actor is negligent with respect to such interest of the other which is protected against unintentional invasion, and, (c) the actor's conduct is a legal cause of the invasion, and, (d) the other has not so conducted himself as to disable himself from bringing an action for such invasion."

As a comment in explanation of the foregoing, it is stated:

"a. Clauses (a) and (b) state the conditions necessary to make the actor's conduct negligent. Clauses (c) and (d) state the conditions which are necessary to make negligent conduct actionable."

In many jurisdictions some rules, or probably better stated, some exceptions, to the resulting liability of such an invasion in the case of a charitable or eleemosynary institution, have been recognized. But why should a charitable institution be excepted? Perry on Trusts says:

"It is almost universally held that those who are receiving the benefits of the charity, for example, patients, at a charitable hospital or pupils at a school or college which is a public charity, cannot recover from the corporation or from the trustees for injuries due to the negligence of an employee, where it does not appear that there was negligence in selecting the employee." Vol. 2, 7th Ed., § 745.

The cases from some of the jurisdictions put this immunity from liability as stated on the basis of what is referred to as the trust fund theory. Some deny liability for negligence on the basis alone of the institution being charitable, yet permit certain exceptions. Others put the immunity upon the basis of the institution being charitable coupled with the idea that it is desirable to relieve such institutions from liability as a public policy.

Such public policy is declared as to the matter of exemption of property from taxation "used exclusively for either religious worship or charitable" purposes by the Constitution of Utah, art. 13, § 2. The probable weight of authority and the numerical preponderance of cases is to the effect that strangers and third persons not beneficiaries may recover against a charitable institution as against an ordinary corporation or individual for negligence; and it is not a defense that the charity had exercised due care in the selection of its servants. It is, however, generally held that, as to beneficiaries, if the charity had exercised due care in the selection of its servants, the recipient of the charity may not recover in an action against the charity.

We shall probably arrive at as consistent a conclusion as any if we accept the principles announced in the cases and then apply the law as thus announced to the facts submitted to us in the instant case, bearing in mind that we are determining not whether the plaintiff may not or may ultimately recover a judgment, or be able to satisfy such judgment when recovered, but only as to whether the complaint states facts sufficient to constitute a cause of action in negligence for a service undertaken on contract for pay, notwithstanding that, internally, it may be classed as a charity, nevertheless is authorized by its articles of association to sue and be sued and to receive, treat, and care for patients and collect a compensation therefor. Is it exercising a charitable function as a matter of law under the facts stated? Among the declared purposes of the defendant association are the following:

"* * * maintaining, operating, and conducting hospitals and other institutions for the care and treatment of sick, wounded, injured and infirm persons; * * * to receive gifts and bequests; * * * to charge and receive compensation for nursing and treatment of patients; to nurse and treat patients free of charge whenever, in the opinion of the Board of Trustees, they are worthy objects of charity; to have and exercise all the rights, powers and privileges given to such a corporation by common law; to sue and be sued; to borrow money and secure the payment thereof by notes, mortgages and deeds of trust upon the personal and real property of the corporation; * * * provided, however, that in no event shall any profit result from the management or operation of this Association, or any of its hospitals or properties, to the incorporator herein or to any other person except the general public, for whose benefit this Association has been organized and its initial gift accepted; and all monies received by this association from any source whatever, in excess of the actually necessary expenses and disbursements required for carrying out the objects of this Association, shall be used and held for the sole benefit and advantage of said Association, in furthering and extending of the charitable purposes for which it has been organized."

When this case was before us on the former appeal (89 Utah 222,51 P.2d 229) it was stated:

"The facts that may ultimately be determinative of the type of institution [referred to in the complaint], are not before us. The allegations of the complaint are the facts for the purpose of the demurrer."

The allegations of the complaint in the present appeal attempt to push the question one step further and apparently have attempted to allege that the defendant is a charitable institution in so far as its organization, aims, and purposes are concerned, and still, that it may "charge and receive compensation for nursing and treatment of patients." Granting that an institution's aims and purposes are purely charitable in so far as its articles of agreement may declare them and yet in its operations it undertakes services for a consideration, is it a question of law or one of fact to be determined by the court or jury from the evidence, when both the organization, aims, and purposes of the institution are alleged, and the evidence of contractual operations have been submitted to the court or the court and jury? We stated substantially the same problem in the former appeal when it was said:

"Once it is established, the institution, society, association, or corporation is charitable, and so, pursuing its purpose, the law of immunity seems to be settled. The question here submitted is: Does the contract for ``pay' take the institution out of the protection of the rule, or, in so far as the contract for pay is concerned, make the institution a business institution not subject to the charitable immunity?"

We then stated that the question as stated was too narrow for complete answer, and proceeded to say:

"Whether or not that character attaches, it seems to us, is a matter of proof under all the circumstances of the case."

In the case of Gitzhoffen v. Sisters of Holy Cross HospitalAssociation, 32 Utah 46, 88 P. 691, 695, 8 L.R.A., N.S., 1161, Mr. Justice Straup, speaking for the court, said:

"We are not concerned with the question whether a stranger to a corporation may show the real character of the association by evidence aliunde the articles. The only question in this respect before us and decided by us is that the corporation itself may not do so."

It would seem to follow that the character of an organization, in so far as a party other than the corporation itself may show it, is not only what the provisions of the articles are, but also what the corporation actually does in striving to arrive at its purposes, aims, and functions, as long as what it actually does is within its authorized powers. (Thus eliminating any question of ultra vires.) Aside from determining that the corporation was one organized for profit, as shown by its articles of incorporation, and that the defendant had been negligent, and while discussing at some length the cases relating to charitable institutions, much of what is said in the Gitzhoffen Case, supra, is dicta.

The case of William Budge Memorial Hospital v. Maughan,County Treas., 79 Utah 516, 3 P.2d 258, 261, on rehearing, 13 P.2d 1119, is a taxation case. It was there sought to obtain tax immunity upon the ground the corporation was a charitable institution and therefore exempt under the Constitution of Utah cited supra. In discussing the questions and elements that constitute a charity, the court said:

"The test which determines whether a hospital is charitable or otherwise is its purpose, that is, whether it is maintained for gain, profit, advantage, or not. 30 C.J. 462; Union Pac. R. Co. v. Artist (C.C.A.) 60 F. 365, 23 L.R.A. 581. The question whether a hospital is maintained for the purpose of charity or for profit is to be determined, in case the hospital is incorporated, not only from its powers as defined in itscharter, but also from the manner in which it is conducted. 30 C.J. 462, Stewart v. Cal. Med. M. B. Ass'n, 178 Cal. 418,176 P. 46; Bishop Chapter of Cathedral of St. John theEvangelist v. Treasurer, etc., 37 Colo. 378, 86 P. 1021. But the corporation itself is concluded by the declaration of its charter in respect to its purpose and object. Gitzhoffen v.Sisters of Holy Cross Hospital Ass'n, 32 Utah 46, 88 P. 691,695, 8 L.R.A. (N.S.) 1161; 11 C.J., 304; In re Loeb's Estate,167 A.D. 588, 152 N.Y.S. 879; In re Altman's Estate,87 Misc. 255, 149 N.Y.S. 601, page 604." (Italics added.)

And, further, at page 525 of 79 Utah, 3 P.2d 258, 262,13 P.2d 1119, it is said:

"The mere fact that the property is used for hospital purposes is not sufficient to exempt it from taxation, as all hospitals are not charitable institutions. They may be and often are maintained and conducted for pecuniary profit. The fact that the declared purpose for establishing this hospital was for the care and treatment of the sick and injured is not itself controlling, for this may be and frequently is done for profit."

The people of the state saw fit in adopting the Constitution to provide for exemption of property used exclusively for charitable purposes from taxation. Neither constitutional nor statutory provisions exempt a charity from liability for negligent conduct. To exempt a person or corporation from a tort liability is a different matter from exempting property or persons or certain corporations from taxation. Negligent conduct on the part of an actor, personal or corporate, is a type of unintentional tort.

Unless put upon the broad ground of public policy sufficiently and definitely characterized as such, as related to the things done, we fail to find ground upon which to excuse one from negligent conduct when falling within all of the elements constituting a cause of action as heretofore stated. Put otherwise, where a contract involves an agreement 2 to perform a service for compensation or pay, although the general purposes of the actor may be charitable, yet, in the particular instance the general character or purposes of the actor may not without more be invoked as a defense as a matter of law against actual negligence, whether pleaded in the complaint or by way of answer or defense. There are instances where a given agreement may partake so largely of compensatory or profit-taking elements as to remove the activity from the charitable field. Instances will readily occur, one of which may be where the services are critical but comparatively simple, and a compensation beyond a reasonable one for either service, technical skill, or responsibility, and the profits are considerable yet not a gift. There are combinations where the contract for service so preponderates as to justify the conclusion that the actor was performing a pure charity. In the case of the good Samaritan it was not the wounded man who "fell among the thieves," who sought care from the innkeeper; nor was it the keeper of the inn nor the wounded man who said, "Take care of him; and whatsoever thou spendest, more, when I come again, I will repay thee."

A recent Idaho case is strikingly analogous in its facts to the instant case. The facts there stated are: A patient entered a Twin Falls county hospital for an operation for appendicitis as a pay patient. Following the operation her physician prescribed an injection in excess of a quart of normal saline solution. Pursuant to the prescription and the directions, the special nurse went to the room in the hospital where medicines were kept and requested the employee in charge of dispensing medicines to supply her with the saline solution prescribed by the physician. The employee in charge of the medicines and room gave the nurse a container, unlabeled, containing a liquid similar in appearance to the normal saline solution, but which actually contained boric acid. The boric acid was injected into the patient, which caused a sloughing off of the flesh, with resulting sores, and leaving scars. Other effects were alleged as injurious results because of the error. An action by the patient was brought against the hospital for damages based upon negligence.

It is stated in the opinion dening a petition for a rehearing that the court was dealing with a purely nongovernmental business transaction, voluntarily assumed by the county, and that the maintenance of a hospital by the county was not a mandatory duty; yet the arguments and body of the main opinion involve propositions pertinent to the issues presented in the instant case in principle. Henderson v. Twin Falls County, 56 Idaho 124,50 P.2d 597, 600, 101 A.L.R. 1151, 1156:

"It is contended by respondent that it is a charitable institution, in that it cares for the indigent sick, and therefore that it is not liable for the negligence of its employees. In Geiger v. Simpson Methodist-Episcopal Church,174 Minn. 389, 219 N.W. 463, 464, 62 A.L.R. 716, the Supreme Court of Minnesota, discussing the question of the exemption of charitable institutions from liability for the negligence of their officers and servants, says that ``we find a great diversity of reasoning and adjudication in the numerous decisions in various states. One line of cases holds that these organizations are wholly exempt from liability for such negligence. Another line of cases, apparently the greater in number, holds that these organizations are exempt from such liability to persons who are recipients of their charity or service, who are beneficiaries of the work carried on by the organization. Many of these cases hold that the organization is liable to third persons, who are not beneficiaries, and to its own hired servants and employees on the same basis as private individuals and business corporations. Some cases hold that hospitals and colleges are liable to patients or students who pay full consideration for their treatment or tuition. Others hold that the fact that payment is so received does no make them liable. In many cases it is stated that such institutions may be held liable for failure to exercise proper care in the selection of officers and servants, and may be held liable for negligently employing incompetent officers and servants, when injury results therefrom. Different courts give different reasons for the exemption from liability. The following reasons have been given; That the funds of such institutions are held in trust for specific charitable purposes and should not be diverted to pay damages for negligence; that the better public policy is to hold them exempt; that they serve the same purpose as governmental agencies and should come under the same rule; that one who accepts benefits by becoming a patient, student, or beneficiary of the institution, impliedly consents to hold it exempt or to waive any claim for negligence of its servants; that the doctrine of respondeat superior does not apply to them; that their employees are not, in a legal sense, servants of the organization. Other grounds of exemption have been suggested. All of these reasons have been more or less criticized.'

"Numerous cases involving the question of the tort liability of charitable institutions are collected and analyzed in Roosen v. Peter Bent Brigham Hospital, 235 Mass. 66, 126 N.E. 392, 14 A.L.R. 563, 572; Love v. Nashville Agricultural and NormalInstitute, 146 Tenn. 550, 243 S.W. 304, 23 A.L.R. 887; Taylor v. Flower Deaconess Home and Hospital, 104 Ohio St. 61,135 N.E. 287, 23 A.L.R. 900; Weston's Adm'x v. Hospital of St.Vincent of Paul, 131 Va. 587, 107 S.E. 785, 23 A.L.R. 907, 923;Bachman v. Young Women's Christian Ass'n, 179 Wis. 178,191 N.W. 751, 30 A.L.R. 448, 455; St. Vincent's Hospital v.Stine, 195 Ind. 350, 144 N.E. 537, 33 A.L.R. 1361, 1369;Hamburger v. Cornell University, 240 N.Y. 328, 148 N.E. 539, 42 A.L.R. 955; St. Mary's Academy v. Solomon, 77 Colo. 463,238 P. 22, 42 A.L.R. 964; Roberts v. Ohio Valley GeneralHospital, 98 W. Va. 476, 127 S.E. 318, 42 A.L.R. 968; Williams'Adm'x v. Church Home, 223 Ky. 355, 3 S.W.2d 753, 62 A.L.R. 721, 724; Greatrex v. Evangelical Deaconess Hospital,261 Mich. 327, 246 N.W. 137, 86 A.L.R. 487, 491.

"It is further contended by respondent that, being a charitable institution, engaged in caring for the indigent sick, the fact that appellant was a pay patient does not subject it to liability for the negligence of its employees. In the well-considered case of Tucker v. Mobile InfirmaryAssociation, 191 Ala. 572, 68 So. 4, L.R.A. 1915D, 1167, where the authorities are fully and carefully reviewed and analyzed, it was held that a pay patient in a hospital conducted without profit, in which indigent patients were treated without cost, the fees exacted from patients able to pay being used to promote the work, could recover damages for an injury done him through the negligence of an attending nurse. And in Mulliner v. EvangelischerDiakonniessenverein of Minnesota Dist. of German EvangelicalSynod of North America, 144 Minn. 392, 175 N.W. 699, where the hospital operated by that institution was founded, and the buildings erected, partly by money donated, and partly by money borrowed, the hospital not being operated for profit, but most of its patients being pay patients, it was held that the institution was liable in damages for the death of a pneumonia patient who, while suffering from delirium, was left alone in a second story room, jumped out of an open window, and was killed. See, also,Cohen v. General Hospital Soc. of Connecticut, 113 Conn. 188,154 A. 435."

A county is an arm of the state. A hospital was established and maintained as authorized but not required to by the Idaho statute. Under the Idaho statute, counties were authorized, when further authorized by a vote of the people of the county, in addition to caring for indigent and charitable patients, to "accept other patients insofar as their facilities will permit and may charge and accept payment from such * * * patients." Code Idaho 1932, § 30-3303. The Idaho case, supra, held the county liable for negligence of its employees, denied the shield of immunity, because not performing a governmental function, and carries us into the field where public service so rendered by an institution for pay is taken out of the field of public protection policy. A charity is held not to be immune for negligence of its servants, even when that institution is conducted by an arm of the state under powers granted to do so.

The court was in error in sustaining the demurrer. The complaint states all the elements of a cause of action for negligence. The cause is remanded to the trial 3 court, with directions to overrule the demurrer. Costs to appellant.

LARSON, J., concurs.