
    NO. 7965
    .COURT ÓF‘APPEÍit PARISH OF ORLEANS
    
      
    
    HENRY DEMIEN versus YOUNG MEN'S CHRISTIAN ASSOCIATION.
   Dinkelsplel; J.

Plaintiff institutes this suit alleging that the defendant is a corporation created under the laws of this State, conducting a lodging house or inn, operated hy it«in its charge^ and under its management. Plaintiff rented a room from defendant and had been renting for several years prior to the present suit, and for whioh room he paid different prices at different times, and that on January 5th, 1919, plaintiff's room in defendant's building was entered during his absence, and naming artloleo of olothing belonging to him whioh were stolen, together with the sum of Thirty seven dollars in money, through a false key inserted in the door, he plaintiff was robbed of artioles and oash altogether amounting to the sum of $14?.00, for whioh he prayed judgment.

To this petition there was first filed an exception of no cause of action, and subsequently an answer, whioh sets up amongst other thingsjp that defendant was a corporation created and existing under the laws of the State of Louisiana, having its domioile in the olty of Hew Orleans, and alleging further that it does not oonduot a lodging house or inn, in the city of Hew Orleans, faxxpxaxitx but provides a home for oertain of its members who pay a small price for the privilege of residing therein, and any man with a membership oard ass from any Y. 11. 0. A. organization in any other part of the world is entitled to the seme privileges in defendant's association, as are residents of the city of Hew Orleans; and at times the association entertains guests temporarily, who may not be members. Defendant avers further that plaintiff hen has been a member of the association for fifteen years or more, during the past seven or eight years having paid a rental of aaxasxt #7.50 to #10.00 a month, and never paid as alleged by him, the sum of #3.00 per week. Alleging further that on the date stated by plaintiff he had the possession of the key of ■ Ilia room, and defendant denies that any artioles were taken therefrom, exoept by himself or to his knowledge, or by someone for whom defendant was not responsible, or further if they were taken they were not of the value claimed by plaintiff. In addition thereto plaintiff occupied a double room, that is a room with two beds, and had a roommate, and that both the roommate and plaintiff had keys to the room with the knowledge of plaintiff; also alleging that there were posted bulletins throughout the building that defendant would not be responsible for valuables left in the rooms. Wherefore it prayed for judgment in its favor.

On these issues the Bite parties went to trial.

Plaintiff in his testimony so far as the loos of the artioles are concerned and the value thereof, swore to them; he further stated that he had notified the Police Department of the Oity of Hew Orleane of the fact of the robbery, but nothing came of it, he testified further that there was a roommate with him in the same room, who.had a. separate key to the premises, coming and going as he chose; he further testified th-t he was fully aware of the character of the defendant's institution, its objects and everything in reference thereto, having been an inmate in the institution for possibly fifteen ye-^rs or thereabouts.

The other witnesses in his behalf knew little or nothing scfesni further than whet plaintiff himself testified to, so it would be idle to summarize, as we do not consider that their testimony would aid additional support to what plaintiff had already testified to himself.

For the defendant the only witness was Mr. W. 0. Hart, and ire quote from the record:

"I ds3ire to stave that the Y. íí. C. A. waioh is incorporated by the State legislature, under Act 89 of 1873, is a charitable and eieenosynnry institution. It h?s no capital stock, nor stockholders, no member of the organization as such receives any compensation, the only compensation is paid to the employees. Any profits, if there are any, that the aaboci-tion makes from renting rooms out, goes into charitable or eleemosyn-ry work and not for the benefit of any individual or the corporation. So far wee this done that during the world war thousands of soldiers were accommodated, without money, and without prioe, at times as many as five thousand in one day."

In a written opinion hsnded down by the Judge of the Court aquo, in this case, he found:

"This corporation is created by an act of the Legislature of 1873. It is commonly known as a charitable institution and not as a hotel or rooming house, it is so only incidentally, and during ths late military activities it served thousands of soliders, the rentals, if any were for malntainence and not for profit. This was or must have been known to plaintiff and he is now estopped from claiming the relation of innkeeper and guest. He was only entitled to the same protection as other guests in regard to his property, and he.s failed to show any sosive violation of his rights."

In the oa.se recently decided by this court, John Jordan versus Touro Infirmary and Hebrew Benevolent Association, being Ho. 8840 of the dooket of this Court, the syllabus readai

Institutions which furnish hospital accommodations snd medical attendance to different classes of paxsanspsg patients, some for pay and other free of charge, not however for making money or profit, but for benevolent and charitable purposes exclusively, and whose entire receipts ax* or revenue s,re derived for suoh purposes, are not liable even to pay patients for the errors or negligent acts of competent nurses furnished by them to their patient while such nurses are in the operating room assisting the surgeon and under his orders.

Cooley, 2nd Vol. p. 1011-1013.

"But this rule (that is the rule of respondent superior) does not apply to a purely charitable corporation, having no oap-it»l stock and whose members receive no dividends or profits from its operations, and such corporation is not liable for the torts or negleots of Its servants in the performance of their duties."

To this same effect are numerous arthors, amongst them, Parson, Horawetz, and others.

The charter of this defendant shows that it is a ohari-ta’ole institution created by act of the Legislature, Aot 89 of 1872,under the laws of this state relative to the organizations of corporations for religious, literary, and charitable purposes»

The testimony of Mr. Hart shows that the entire revenue from all souroes, paid to defendant, is used for the objects for whioh it v/as organized, all olasses of persons are reoeived and treated and the same services are rendered to inmates free of oharge as to those given to pay inmates.

It has been held that there is no distinction between the liability of a charitable institution towards a charity patient and a pay patient, upon the theory that the pay patient does not pay for any particular service, but rather that he contributes in proportion to his means toward the conduct of its charity and that he is to receive the same madisxxa measure of service as every other patient in the hospital.

Powers vs. Mass. Homeopathio Hospital, 109 Fed. 394; 64 L. R. A. 372.

Yihen an employer derives no benefit from the retention of a hospital fund from its employees, it is liable only for failure to exercise ordinary care to select employees and retain a competent physician.

Congdon vs. La. Saw Mill, 142 La. 212, and numerous authorities cited in the Jordan case, already referred to.

The Civil Code, Art. 3233, referred to by counsel for plaintiff, reading:

"Those aha are called innkeepere, who keep a tavern cr hotel, and make a business of lodging travelers."

Referring particularly to the case of Seward vs. Denechaud, 130 La. 739, in omr opinion has no application to this case, because the defendants are not innkeepers, do not keep a tavern or' hotel, or make a business of lodging travelers.

A oareful examination of the authorities quoted in the Jordan case, and the reasons given by this oourt, oiting numerous authorities from the Supi’eme Court of the united Stabes, end other courts of the highest dignities, in the different states of the Union, prove conclusively that an institution of the character suoh as the defendant la, cannot under circumstances such as given in this record, be held responsible as is claimed by plaintiff in this case.

For the reasons assigned it is ordered, adjudged and decreed, that the judgment of the Court aquo be and the same is hereby affirmed, costs of both courts to be paid by the jSb plaintiff.

-Judgment affiraed-  