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District Court of Appeal, Third District, California.

ARMSTRONG et ux. v. WALLACE et al.a1

Civ. 5170.

Decided: November 08, 1934

Neison & Ricks, of Eureka, for appellant Carl T. Wallace. Horace W. B. Smith and George A. Work, both of San Francisco, and Irwin T. Quinn, of Eureka, for appellant Sisters of St. Joseph of Orange. John L. McNab, of San Francisco, M. H. Iversen, of Ukiah, and Frank Thompson, of Eureka, for respondents.

An action was brought by plaintiffs, husband and wife, against Carl T. Wallace, a physician and surgeon, and Sisters of St. Joseph of Orange, a corporation, operating a hospital, for injuries alleged to have been sustained by Maxine Armstrong, as the result of the alleged negligence of Dr. Wallace and the Sisters of St. Joseph, in the failure to remove a laparotomy sponge from Mrs. Armstrong upon the completion of an operation. After a trial before a jury, a verdict was returned in favor of both defendants and against plaintiffs. A motion for a new trial was presented and the motion granted as to both defendants, who then gave notice of appeal from the order granting a new trial, whereupon plaintiffs moved to dismiss the appeal or affirm the order granting a new trial.

In regard to the hospital, the record discloses that plaintiff Maxine Armstrong was under the care of Dr. Wallace and was sent by him to the hospital operated by the Sisters of St. Joseph, for an operation. Dr. Wallace gave instructions to the hospital to have the surgery prepared for the operation. The nurse in charge of the surgery was one of the sisters of the order, serving without pay. The surgical nurse, or the one who was immediately to assist in the operation, was not a member of the order. Both of the nurses were registered nurses. The hospital made a charge to Mrs. Armstrong for the use of the surgery.

As to the acts of negligence charged to the hospital, it is in substance alleged that the sponge furnished for the operation did not have attached a tape by which the sponges are more readily accounted for and located and also that the nurse in charge did not count the sponges used in the operation. The defense of the hospital was that it was a charitable institution and that it used due care in the selection of its nurses and particularly as to the nurse in question, and furthermore, it was not responsible for any alleged negligence of the nurses during the operation.

The order granting a new trial as to the hospital was on the ground of errors of law and insufficiency of the evidence to justify the verdict and was against the weight of the evidence. As to the status of the hospital the testimony discloses that the hospital is conducted by the Sisters of St. Joseph of Orange, a corporation, and the purposes for which the corporation is formed are, among others, “to acquire and maintain suitable and permanent convents * * * orphanages, hospitals and other charitable institutions * * *, to purchase, take, hold, lease, hire and own lands * * *, educational institutions, orphanages and hospitals, to issue diplomas at graduation * * *.”

No one in connection with the corporation receives any salary nor any individual profits, nor do the officers of the corporation receive any salary nor do they participate in any of the profits. The teachers receive a small compensation for their maintenance. The corporation also conducts schools throughout California and assigns sisters to these schools as teachers, who receive about $35 per month from the parish in the community where they are. This particular hospital was opened in Eureka in about 1920, having been previously operated as a hospital but had been closed for about four years prior to it being taken over by the Sisters of St. Joseph. The property was acquired through two members of the order, who had inherited certain timber lands, which they conveyed to Northern California Hospital Association, the owners of the property in question, who, in consideration of the timber land, conveyed it to the Sisters of St. Joseph of Eureka, the predecessor of the defendant herein. In order to renovate the property a public drive was made among the citizens of Eureka for the purpose of raising money to put the hospital in proper condition. The order has from time to time received other bequests used in meeting the hospital expenses and carrying on other educational work in Eureka.

In addition to the patients admitted on a pay basis to the hospital, it appears that it also received charity patients. There are from 23 to 25 sisters working at the hospital who receive no salary, but get their room and incidentals. They perform most of the work in the hospital and do most of the nursing. If there is anything left over after the operation of the hospital, it goes to the upkeep of the institution; young women are also accepted at the community of the Sisters of St. Joseph, where they are educated and then sent out to be teachers, or sent to other institutions for training in nursing.

To determine whether or not a private hospital conducted by a corporation or society is charitable, it is necessary to look not only to the articles of incorporation and by-laws, but also to the method of conducting the hospital. In re Estate of Dol, 182 Cal. 159, 187 P. 428; Stewart v. California Medical, etc., Ass'n, 178 Cal. 418, 176 P. 46. We are convinced after an examination of the record before us, both documentary and oral, that appellant hospital was a charitable agency, a conclusion supported by ample authority. Burdell v. St. Luke's Hospital, 37 Cal. App. 310, 173 P. 1008; Dingwell v. Seymour, 91 Cal. App. 483, 267 P. 327; Stonaker v. Big Sisters Hospital, 116 Cal. App. 375, 2 P.(2d) 520, 522; Ritchie v. Long Beach Community Hospital Association (Cal. App.) 34 P.(2d) 771.

As was said in the Stonaker Case, supra, where the action was brought against the surgeon, two nurses, and the hospital, for injuries alleged to have been sustained by the administration of an excessive amount of ether: “It appears without contradiction that the hospital paid no compensation to its constituents for services, and that it paid no dividends; that it was conducted for the good of the community, by a charitable organization known as the Big Sisters League, with the intent and purpose that if there was a surplus over and above the expense of carrying it, such surplus would go to the said league. There is no evidence of a relaxation of reasonable diligence in the selection of attendants. As we have observed, the respondent physician employed by appellant was not employed by the corporation, and was not charged with supervision of its mechanical apparatus. We think the case is governed by rules announced in Burdell v. St. Luke's Hospital, 37 Cal. App. 310, 173 P. 1008, that: ‘Upon this showing the lower court was clearly correct in directing a verdict for defendant under the rule laid down in Thomas v. German Gen. Soc., 168 Cal. 183, 141 P. 1186, where it is said that: “Where one accepts the benefit of a public or of a private charity he exempts by implied contract the benefactor from liability for the negligence of the servants in administering the charity, if the benefactor has used due care in the selection of those servants.” The fact that plaintiff paid the regular rates charged by the hospital for paying patients does not take the case out of the operation of this rule, for it is apparent that the rates were not charged with a view of making a profit from her, and the moneys received from paying patients were not in fact sufficient to meet even the ordinary operating expenses of the hospital, without considering any interest upon the amount invested in the buildings.”’

Even should it have been found that appellant hospital was not a charitable institution, the hospital could not have been held liable for the acts of the nurse furnished by the hospital to the doctor, as it is the rule that during the preparation and during the progress of an operation the nurses in the surgery are under the control of the doctor, and he and not the hospital is responsible for them.

The leading case upon this subject is Schloendorff v. Society of New York Hospital, 211 N. Y. 125, 105 N. E. 92, 94, 52 L. R. A. (N. S.) 505, Ann. Cas. 1915C, 581, holding the hospital was not liable for the conduct of a nurse furnished by it to the surgeon, to assist in the operation; the court, through Mr. Justice Cardozo, saying: “It is true, I think, of nurses, as of physicians, that, in treating a patient, they are not acting as the servants of the hospital. The superintendent is a servant of the hospital; the assistant superintendents, the orderlies, and the other members of the administrative staff are servants of the hospital. But nurses are employed to carry out the orders of the physicians, to whose authority they are subject. The hospital undertakes to procure for the patient the services of a nurse. It does not undertake, through the agency of nurses, to render those services itself. The recorded cases make no distinction in that respect between the position of a nurse and that of a physician (Powers v. Massachusetts Hospital [(C.C.A.) 109 F. 294, 65 L. R. A. 372], supra; Ward v. St. Vincent's Hospital, 78 App. Div. 317, 79 N. Y. S. 1004; Cunningham v. Sheltering Arms [135 App. Div. 178, 119 N. Y. S. 1033], supra; Hillyer v. St. Bartholomews Hospital, supra [(1909) 2 K. B. (Eng.)], at page 827); and none is justified in principle. If there are duties performed by nurses foreign to their duties in carrying out the physician's orders, and having relation to the administrative conduct of the hospital, the fact is not established by this record, nor was it in the discharge of such duties that the defendant's nurses were then serving. The acts of preparation immediately preceding the operation are necessary to its successful performance, and are really part of the operation itself. They are not different in that respect from the administration of the ether. Whatever the nurse does in those preliminary stages is done, not as the servant of the hospital, but in the course of the treatment of the patient, as the delegate of the surgeon to whose orders she is subject. The hospital is not chargeable with her knowledge that the operation is improper any more than with the surgeon's.”

For the foregoing reasons we think the court erred in granting a new trial as to appellant hospital, the evidence and the law establishing the fact that appellant corporation was not liable.

As to the motion to dismiss or affirm the appeal upon behalf of Dr. Wallace, we believe the issues presented are of sufficient importance without going into an analysis of the issues to warrant the matter being fully presented, and for that reason the motion to dismiss should be denied.

It is the order, therefore, that as to appellant Sisters of St. Joseph of Orange, a corporation, the order granting a new trial is reversed, and as to appellant Carl T. Wallace, the motion is denied.

Mr. Presiding Justice PULLEN delivered the opinion of the court.

We concur: PLUMMER, J.; R. L. THOMPSON, J.

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