
    JOHN JORDAN,Appellant VS TOURO INFIRMARY AND HEBREW BENEVOLENT ASSN.
    No.8840
    CHARLES F.CLAIBORNE,Judge.
    November 13th 1922.
    
      
    
    
      
    
   JOHN JORDAN,Appellant Vs TOURO INFIRMARY AND HEBREW BENEVOLENT ASSN.

No.8840

Charles F.Claiborne,Judge.

This is a damage suit for injury suffered by the plaintiff at the hands of one of the nurses while he was undergoing an operation at the defendant Infirmary.

The petition alleges that in August 1920 he entered the Touro Infirmary for the purpose of undergoing an operation k to be performed ubn him by Dr Rudolph Matas,a surgeon of said Infirmary^employad by him;that he was a pay_patient and had engaged a room for which he stipulated to pay a fixed price, and In addition thereto agreed to pay for the use of the operating room,and for the services of an employee of the infirmary to administer the anesthetis;that during the operation one of the muiaea employed by the Infirmary in attendance upon him negligently inflicted upon him painful and permanent injuries by placing at his feet certain heating appliances which burned and blistered his feet as as to partially disable him for llfe^ the whole while he was undsr the influence of aneathetie^and helpless.For all of which he claims $28,000.00

The defendant first filed an exception of no cause of action which was overruled.

For answer the defendant admitted that the plaintiff had entered the lnflmary as a pay-patient paying a fixed price per day for the use of his room and for the use of the operating room,but denied all the other allegations of the petition.. Further answering defendant averred :

^ And for further answer defendant avers that it- is a charitable association,organised for charitable purposes under1 and as authorised by tie laws of this State by act before Felix J.Dreyfoua,Notary Public^on March 6th 1893 as per certified It •epy oí oaarter annexed hereto}that aald defendant 1b a benevolent or charitable association or corporation,and is not incorporated for profit,nor does it operate any bunlness for profit, but that all its revenues,including the dues of its members and .patrons,donations and legacies,contributions by the City of Hew Orleans, and all receipts from pay-r-patients,and from all other sources whatever,are devoted'exclusively to charitable and benevolent purposes and to the care and treatment of Charity patients and inmates,and that no part of its revenues is paid out to its members or patrons for profit or otherwise} that the finds reoeived from said donors and all other Bourses,constitute trust funds devoted to charitable purposes,and which cannot be diverted from the uses and purposes to which the same have been dedicated}that defendant used all due diligence and reasonable care in the seleotion ofa its employees}and that this defendant is not liable for the'alleged injuries described in plaintiff’s petition,even if they were suffered by him,which is denied,"

There was judgment for defendant and plaintiff has appealed.

The above answer contains three propositions of legal defence}

First: That the nurse was not the servant of the defendant within the meaning of Article C.0.2320

Seoond: That even if she was.the defendant was not liable for ' O-her negligence, inasmuch as it had exercised due ^fars in the selection azffet of this nurse,and that she was oonpetent to fulfill the duties of her employment}

Third: That there was no negligence on the part of -cue nurse.

He shall consider the third point in discussing the first and seoond,inasmuch as under the jurisprudence adopted by us,as we shall see below,the defendant is.-not liable even if the nurse was negligent in the discharge of her duties.

The defendant baa established tha character of the infirmar» bv its charter and by testimony.By Artiale IX * The object of thia Association and the purposes for which it has beam crea/ted are deolared to be the giving of relief and protection and the affording of needful surgical and medical aid and comfort to destitute and deser»ing persons "

Article III of the By Laws .provides that " all funds derived from the payment of duos by members and patron's,aswell as by life members.and all donations,bequests or legacies to the association-and all fonda derived from any of the privileges •heretofore provided for or from any other source,shall^ except as hereing otherwise provided.be paid over to the Treasurer of the Association,for such disposition and use as the Board of Managers shall direct."

There is no other, provision either in the Charter or in the By-Laws relative to the receipt or disposition of. the money of the Association.

Fmanual 7.Benjamin testified that he had been President of the Touro infirmary,tne defendant herein for the last twelve yearsj.that it depended for its receipts on the money collected c/i-i . from the pay-patients $a the hospital,from contributions, bequests,and money it got from the Oity^and gifts jthat it liad no stockholders, and deolared no dividends 5 that it paid nothing to its patrons or members or supporters,and that the officers drew ad Salary nor any other oompo^sation;the receipts derived from patients are spent for the hospital and upon charity patients,the Oity of lew Orleans contributes $13,000 to- their, work;that all colors axui creeds are received and treated in the hospital),not only/» the Oity by from the surrounding country

The Infirmary was started about the year 1868 by JOdah Tour® for the purpose of treating the sick and indigent and was made a part of hie will; in IS'/c the Infirmary amalgamated with.the * Gentlemen’s Society * organised to take care of Yellow fever sufferers;it had then a membership of 600 which It has preserved for the last 36 or 40 years;from the By-Laws •" it appears that the annual dues of members are $12 and of natrons^ $26 and that donors of suma of money varying from $100 'asm are distinguished by having thefefc names Inscribed upon tablets of honor.Continuing hr Benjamin testifies that the institution treats within^ the hospital proper,about 7000 patients a year and in the ollnlos about 18,000 and in the outdoor ollnie about 90,000/all of whom only about two per cent Jewish, the number of Oharity patients is greater than the number of pay-patients/ the doors are open night and day in thm clinics and in the free wards .they have a staff of doctors , Jewish and non-Jewish who give their services free;the reoeipts of the institution are' about $300,000 a year from all souroes;the defioit between what the institution reoeives fpom pay-patients and from the Olty and what it costs to carry on the work of the institution varies from $26,000 to $40,000 a year;that is made up by contributions and bequests from their frimnds;the institution has never owned a dollar in the fifty years of its ezlstenoe,and has .never been without debt,and this day owes $200,000 and has no ainring fund nor securities whatsoever;the property of the institution is exempt from taxation because of its charitable character;there are ladies connected with the institution who are called welfare workers who visit the poor sections of the Olty and take care of the siek and maternity oases,and the lnterst ,of a' Certain trust fund of $10,000ythe revenues of the pay department are used to help carry on the Oharity department.

Consenting the nurses Hr Benjamin says; They have a training school with a eapioity of about(so) eldhtv women; a . i^young woman to besóme a nurse must first fill out a blank qualifying as to education and reputation,mental capacity and health^wnder the. signature of'a doctor.clergyman^or rep:t.able .person^in order to be .eligible this, must be approved not only by the superintendent of the institution and by its directo;:?, but also by the Louisiana State Board of Examiners for Kurses} the applicant ÍEen enters the school as a probatlonal student} for the first six or eight months she does only certain woriy suoh as cleaning up^ carrying buckets and vessels}and helping to make up beds,and she takes no part in the medicinal serrices of the institutions she gradually develops^as her training continues,into the first year period,and into the second year period,and in the third year she graduates,if she accomplishes what is expected of her,and receiTes her diploma}she is paid $10 or $12 a month to meet her ordinary expenses,and she is furnished with meals and lodging and training and teaching} they get hospital and bedside instructions.and attend lectures^ demonstrations^ and everything that is necessary to qualify them for what their purpose is.}Dr Matas is one of the staff of teachers¡among the duties performed by the nurses are waiting on patients and attending on surgeons during operations¡she is finally aocepted into the- school of nurses^'she is assigned to duty the same way in the operating room.

Dr John Spelman superintendent of the Infirmary says that there are three classes admitted to the Touro}

1st Pay-patients who pay an amount ^qual or greater then their cost to the institution.
2nd Part-pay patients who payan' amount inferior to their cost,and
3rd Charity patients who pay nothing}

Mr Jordan paid $4 a day¡the entire personnel of the operating room is under the direction of the surgeon operating^* no one but him oan gire orders to any person,neither the President nor the superintendent has any authority there}he repeats the testimony of Mr Benjamin as to the education and qualifications necasary to be á nurse}the course is three years and three months it is only after they have had instruction in bedside nursing that they pase on to the operating room where they are in charge of a graduate in nursing;the plaintiff paid $10, for the use of the operating room,including the oeryase of the nursesjail patients in the operating room recive the same attentions, wnether they pay or not;the average cost per day of a patient to the institution is §4.25^' the operating expenses Tor the year 1920 were 5326,969.60 and the income derived from hospital services rendered was $303,064.14 leaving a loss of $23,906.36 not including payment of interest on money due amounting to $8,344.91 making a total loss of $32,260.27/this loss was covered by $13,000 from the Oity and by private contributions;the aim of the hospital is to make the pay patients support the entire institution^Oharity and pay as far as possiblejfrequently patients contract for services and do not pay for them.

Miss Bose,Directress or HurseB at the Touro for the last five years^and a graduate of that institution for eight years^ corroborates tne testimony of Mr. Benjamin and of Mr Spelmanj nurses are never admitted into the operating room-during the first yearjsometimes the latter part of the second year,add generally during the third yearjaxi tne nurses admitted in the operation room in the Jordon case were third year nurses,except ' three graduate nurses;there were 14 school nurses and 3 graduate nurses;the operating rooms are on the third floor;they are four in numuarja nailway separates them from the instrument and supply rooms,and all nurses go in and out of the operating room as instruments sm and supplies are sailed for by the. surgeon;the Burgeon gives orders to the nurses as to what he wants and every body in the room obeys himja tli^ough^ investigation was made to find out how the accident to the plaintiff happened;in ner own language she says;

" We knew that a thing like that could very easily happen where a patient wae^or they thought^dying.There was- so mfcch being done for the patient,it would be almost impossible to hold any one person responsible,where there were so many people doing for somebody that was that ill.In hospitals you always have some one responsible for what you are doing,but In a ease like that,you cannot hold any one person responsible where there are so many people doing it xxx but you can’t find out who is responsible for filling may be half a dozen bagsj and going and coming in the room,where there are so many people ! ^ busy xx we dont know who filled the hot water bags which burned Mr Jordan xxx we suppose it was a nurse,it may have been 7 w-one of the doctors that was in the ’■’oom.We dont know.They often fill hot water bags in the operating room or one of the intern^^ / -an. Is a graduate registered doctor who goes there for the experience that the hospital affordsxx ne gets no salary; there were two internes assisting Dr Ifatas and Dr Landry xxx in severe cases you have to have hot water bags very very hot.

Dr Matas testifies:

" TeSj as we were approaching the most critical part of the operation his condition changed and became very, grave and we had to halt the operation so as to restore him,because he was in such a, state of profound shock and for that reason we wanted to get all restoratives.We wanted to apply hot bags and we called for them at once.The change was, rather unexpected,A sudden, fall in blood pressure.The anesthetist called attention at once to the fact that his pulse was falling very fast,in fact practically destroyed entirely at the wrist.So we had to stop everything,and immediately we applied restoratives and among them heat.Other things were done .He was Infused injí the veins with a solutipn,and hyperdermih^ were imposed of digitalis and strychnine and heat was.applied.The call was immediate for heat in the shape of bags.It looked as though he might die on the spot unles we did someunmg promptly.We had to halt everything, it was a moment of great concern and great anxiety to every one.I think it ms only the fact that he had this pronpt attention right on the spot that really carried him through. There vas no tine to teat.We must have hot hags at onoe,imme-diately .A peremptory order like this must he obeyed.But we did not have time to find out whether the temperature was so much or so much or whether it would seald or not scald him.The nurses had to obey orders and act.Life was in danger,and we ha^l to disregard every other consideration because every other const-ar"' deration was a minn consideration.*
Q What is the nurses duty in a case of that kindt
A. To obey orders.The order was for hot water bags at once^ have it at once.
'^Whether they applied any of the regulation tests which, are recommended in training schools,and nursing schools under these ciroumstanoes I do not know.That part X do not know very well.I was not concerned with that.All X know was I saldt “Bring hot water bags at onoe : * There waB no time to he testing with thermometers,or anything of that kind.They brought hot water bags,and I suppose they brought them as quickly as they could In my opinion it was unavoidable absolutely.*

I -■ Plaintiffs action is based upon the theory that the nurse who applied the hot bags to plaintiff's feet was the defendant^ servant for whose negligence or tort it is liable He relies upon Article C,C.2330.It reads as follows s

* Masters and employers are ansuerable for the damage occasioned by their servants and overseers in the exercise of the runotions in which they are employed ".

Where the Supreme Court has spoken upon any question it is our duty to follow them in their reasoning, and in their conclusions,In the case of Congdon vs La Sawmill 143 La, SOW (314) the Court adopted the language in Quinn vs HRD.94 Tens 713 (30 S.W. 1036 ) which saldt

“Plaintiff in error insists that the defendant in errolf is liable for the mistakes or inalpraotloe of the surgeons in question;that their employment by the railroad created the relation of master and servant and that the ordinary rule which makes the master liable for the negligent acts of his servant within the scope of his employment is to be applied in this case.If he be correot in his contention that the relation between the railroad and these surgeons was that of master and servant,then his conclusión would properly follow. But was that the relationship?We do not think so.The tern" "Servant * as it is used in connection with the rule invoked has a well defined meaning.lt iB applicable^says Mr Thompson in his work on Negligence (Vol S P.89S )^ to any .relation in which with reference to the matter out of which an alleged wrong has sprung,the person sought to be charged had the right to control the action of the person doing the alleged wrong; and this right to control appears to be the conclusive test by which to determine whether the relation exists.For the relation to exist,so as to make the master responsible,he must not only have the power to select the servant,but to direct the mode of executing and to so control him in his aots in the oourse of his employment as to prevent injury to others"Autho-ritles")

The term " Master is equally well defined in the law. A"master in the sense of the rule is" one who has the superior? choice,oontrol,and direction; whose will is represented not merely in the ultimate result in hand,but in all its details; one who is the responsible head of a given industry;one who has the power to discharge;one who not only prescribed the duty,but directs,and may at any time direot the means and methods of doing the work"14 A and E.E. of law 746 -20 id ( 2 Ed. ) P.12

The definition is the same in Canada.

34 Ontario Lair Reporte P.704 Mersey Docks Trustees vs Gibbs;

il / 1 The plaintiff a paying patient in the defendants hospital was injured by reason of the carelessness of some one in attendance upon her after an operation.

Held ^that the contract was that the defendants should in good faith use due care and skill in selecting the medical staff and in employing and permitting nurses in trianing and other asssitants to work for and attend to patients in the institution and that was the extent of the defendants duty and responsibility; that the relationship of master and servant did not exist between the defendants and the physician,surgeons,nurses,and other attendants assisting at the operation,whether these were paid by the defendants or not;that the defendants were not guilty of any negligence in the selection of their staff and nurses and attendant)!;and therefore,the plaintiff's action to recover damages for the injuries failed".authorities,also Lavere vs Smith Hospital Ontario 216,Hillger vs Governors 2 K.B. (1909) 880 so-Also in France: in 15 Bandry- LaCantinerie ( Third Edition ) P,617 S 2912 we read:" But according to jurisprudence another condition is necessary.An individual has , / / , the oaraoter of employee ( prepose ) only when the person who has selected him for certain functions may give him,relatively to them,orders and instructions:"Considering,says the Supreme Court ( D.P.87-1-225)that the responsibility which Artiole 1384 O.H.imposes upon employers ( commettants ) does not suppose /asy^that,they have selected their employees,but also that the employers have the right to give to the employees orders and instructions concerning the manner of fulfilling the functions in which the latter are employed;that it is this right which is the foundation of the authority and subordination // without which there is no real employer-authorities.

^ Thus the owner of/a vsag*^l ( amateur ) who haw leased ypCL' to a navigation company ship with its crew,could not be held civilly responsible for damages caused by the fault of the captain of the ship,if during the time of the lease,the ©reír and the ship were placed under the authority of the leasing company and that the owner had neither orderjnor instructions to give the captain,She latter in fact at the moment he eomm&tted the damaging act was not the employee of the ownerrepother example borrowed from Jurisprudence:Physicianfend stargeghB in hospitals, being designated in the onatoBt ( ooncours ) and being submitted^ as far as the practioe of their art is concerned^neither to the authority nor to the control of the public asssitanee, ara not the employees of that administration.The latter consequently must be dismissed from Court when it has been sued as oirilly responsible for the oowsequenoes of an deration practioed in a hospital.Likewise,physicians which railroad companies employ to treat their servants^ wounded or sick ^re not the employees of said companies.They can in faet give them neither orders nor instructions fen that which concerns the practice of their art.It follows that they incur no responsibility by reason of the consequences of the treatments prescribed by them,treatments of which they have neither the direction nor the control ( surveillance ), flooording to Jurisprudence the condition of which we speak is essential.Thus a master is not responsible for the damages caused by the one who is habitually hie employee,when the latter,although still in the exeroise of htls functions and using the things belonging to his master,aots in the premises,under the orders of the third party".

In line with this, opinion is what was said by the Supreme Court in Toca vs Rojas 93 so.108: Birth gives rise to paternal control and.authority over a child^and paternal responsibility for torts is the consequences and offspring of the paternal authority." Jn other words without authority there is ho responsibllity.ünlesSthe relatione of master and servant,authority and subordination,exist there is no responsibility,and as this liability of the master for the negligence of his servant is matter of arbitrary law,it must be strictly construed,and should not be extended to cases which are not olearly within the purview of the law.Doubt is fatdS^fco liability » 16 Bandry-Lac.3rd ED.) S 2895 P.594.

Is we have seen from the testimony that the nurses are absolutely under the orders of the surgeons in the operation room^and in no manner controlled by the officers of the defendant jit has no responsibility for the aots of the nurses.

See also Schoendorf vs H.Y.Hospital 221 N.Y. 125-106 N.E.92-52 L.R.A.N.S.506— 160 H.W. ( Wisc) 175 -106 N.E.(WY)92.

The ease of Stanley vs Schumpert 117 La 266 quoted by the plaintiff is not in conflict with the above authorities. In that ease there was no evidence that the nurse was competent or graduatedjuor' that the defendant did not have the direction and control of the nurse at the time she inflioted the injury. This ease would, be in line with Nations vs Ludington 143 La.209 and 48 L.R.A.N.S. 551-71 W.Va. 708-77 S.E.324-48 L.R.A.N.S. 538-4 L.R.A.N.S. 66.In the case of Clero vs R.R.D. 107 La 370 entirely different issues wmre decided.

The eases relied on by the plaintiff 106 S.E. 355, 59 S.E,945,159,Pac 436,135 N.W.800 and 148 N.W.582 may be differentiated from the psesent onej and we prefer to follow the authorities adopted by our own court.

II In the' case of Nations vs Ludington 133 La 657 (664) the. Court saidThe Supreme Court of Missouri,in the ease of * TfcilipS' ye ’St.Louie RRD.Co.111 S.W.109 has held that the Company iX much a ease must go beyond employing a competent physician; tJS*t H must go further and competently treat the patient." SUt Sfei Weight of authority eeems to be that:

*lh»re eh employer derives no benefit from the retention of the Hospital fiund from its employees,it Is liable only for failure to exercise ordinary care to select,employ and retain a competent physician.Approved in Congdon vs La.Sawmill 143La.212 also 153 S.W.595,Ann Cas 1916 B.471-27 L.R.A.840.

In the oase of Congdon vs La.Samnill 143 La 209 the syllabus reads :

Where an employer engages a physioian or surgeon of ordinary skill and ability to attend to his employees,and pays the physioian from a fund collected from the employees,and from which fund the employer derives no profit,he is not responsible in damages to an employee for mistakes of^or malpractice by^such physician;particularly where it is not charged and proved that the employer was negligent in the seleotion of the physician.*
^ A petition for damages.in such case should contain allegations of neglect on the part of the employer in employing a competent physician,and that he derived some profit from the fund contributed by the employees to pay the physician, in the absence of suoh allegations,the petition disoloses no cause of action^quoting a long list of authorities.
* A master who employs a physician to treat'his employees and oolloots small monthly fees from the wages,all of which he turns over to the physician as his compensation,is not liable for the physicians malpraotiee,unless he is negligent in selecting or retaining him.48 L.R.A.N.S. 536 (538) W.Va.79 S.E.941-124 Pac 505 -143 La 210 -27 LR.A. 840 (842) -4 L.R.A. N.S.66-63 H.W.872.
"Those who furnish hospital accommodations and medical attendance not for the purpose of making profit thereby,but out of 0harity,or in the course of the administration of a charitable enterprise,are not liable for.the malpractice of the physician or the negligence of the attendants they employ,but are responsible only .for their oto want of ordinary care in selecting them" 4 L.R.A.N.S.68

"The test which determines whether suoh an enterprise is charitable or otherwise is its purpose.If its purpose is to hake profit,it is not a charitable enterprise..If it is to heal the sick and to relieve the suffering,without hope or purpose of getting gain from its operation^it is charitable." 4 L.R.A.N.S.68

The answer to the argument advanced by plaintiff that the hospital fees received by the Touro from pay-patients produce a profit and thereby destroy the character of the Topro as a charitable institution,at least,in so far as pay patients are concerned,is found in Pearson vs RRD.153 S.W.596-The Court saidt

tl The fact that there is a surplus on hand,which could be put out at interest,does not constitute such benefit as would change the character of the defendant^ delation to its employees in the operation of the hospital.In accumulating the fund-and also in oaring for the surplus,the RRD.Oo.is marely aoting as trustee for its employees,and it is» its duty to keep the fund unles it beoomes advisable to invest the surplus in saome way*Sea also 2 Cooley on Forts P.1011-1013-33 Atl. Conn) 596 -78 Atl. ( Me ) 898-16 All (Pa ) 558-236 S.W. (KY)577 173 Pac.1008-120 Mass 438-60 H.W.(Mich ) 42 - 90 N.W. ( Mich ) 278-137 N.W. (Neb) 1120-119 N.Y. 1034-99 S.W. ( Mo.) 463-96 N.E. ( Ohio ) 1989-76 Atl.(Pa.)1087-160 PaC & WYO ) 385-169 Pac. (Wash ) 828-109 Fed.294 Writ refused.183 U.S.695.

In opposition to these oases the plaintiff quotes the cases in 159 Pac (Cal)436-12 R.I. 411 -176 Pac(Cal ) 46-175 N.W. ( Minn)699 and especially the case of Sucker vs Mobile Infirmary 68 So.4 -But as said by our own Suprema Court;we find the great weight of autnorlty opposed to the Tiewe expressed In the Tucker ease.by the Alabama Court.

we perceive no diffirenoe in principle,in the responsibility of a hospital in the employment ©f a physician and of a nurse.

If it is.not liable for the malpractice committed by a licensed registered physician of good reputation employed by it,by a parity of reasoning it cannot be responsible for the errors or negligence of a graduated nurse,and the aut¡aorl'IÉi#B are to that effect.

It is therefore ordered that the. Judgment herein be affirmed.

November 13th 1928.  