UNION PAC. RY. CO. "'. ARTIST
365
jorityofthe court does not accord with the understanding and practice of the business community, and puts it in the power of insurance companies to adopt a standard of business integrity much below that which ought to characterize the dealings of reputable business men. The question as to whether such a contract waf!t made is one for the jury to decide upon the evidence, and there was abundant evidence to entitle the plaintiff to go to the jury upon it. It has never been submitted to a jury. It . . was not passed upon by the circuit court, and has not been argued by counsel. For these reasons the judgment of the circuit court ought to be reversed, and a new trial directed. Not to do so is to deprive the plaintiff, wrongfully, of its constitutional right to have the facts of its case tried by a jury. UNION PAO. RY. 00. v. ARTIST. (Oircult Oourt of Appeals, Eigbtb Oircuit. No.
February 12, 1894.)
342.
1.
RELEASE AND DISCHARGE-CONSTRUCTION.
t.
A release for settlement of claim for certain personal injuries specUled in the release, and also "of and from all manner of actions, of action, claims and demands, wbatsoever, from tbe beginning of the world to this day," does not cover personal injuries not therein specified, and not known to exist at the time the release is executed, since the general terms in the release are limited by the preceding specifications. A master who sends his servant for treatmenf to a hospital maintained by the master for charitable purposes is not .responsible for injuries caused to the servant by the negligence of the hospital attendants, where tbe master bas exercised ordinary care in selecting such attendants. A hospital maintained by a railroad company for the free treatment of its employes, supported partly by the monthly contributions of all its employes and partly by the company, and not maintained for profit, is a. charitable institution. OF MASTER-CHARITY.
MASTER AND
:8.
CHARITIES-HoSPITAI,-RAILROAD COMPANIES-N EGLTGENCE.
In Error to the Circuit Court of the United States for the District of Wyoming. Action by Andrew So Artist against the Union Pacific Railway Company. Plaintiff obtained judgment. Defendant brings error. This writ of error is brought to reverse a jUdgment against the Union Pacific Railway Company for the malpractice of physicians and the negligence of attendants in a hospital maintained by it, for the benefit of its employes, at Denver, in the state of Colorado. The evidence tended to show these facts: The Union Pacific Railway Company requires eacb of its employes to con· iribute from his wages 25 cents a month towards the support of a medical department. The railway company contributes the amount reqUired in addition to the sum thus raised from the contributions of the employes to pay the expenses of this department. At the time the defendant in error was ireated at the hospital, the company was contributing from $2,000 to $4,000 per month for this purpose. With this fund the railway company maintained several hospitals for the treatment of its employes when they were .gick or Injured, and employed physicians and attendants to care for them at the hospitals, and physicians and surgeons to attend them outside the hospitals, at important points on its lines of railroad. All the employes of the
·.86.6
FEDERAL
yot
60·.
railroad. company, except' those injured in fig:hts, those injured when. drunk. 'ebronic"dlSea.ses, .'ltnd I tihol!le J 'trt)h1' 'certainspecifie <teceivedand" treated · ·ltbesehospillals, :tree: :ot. :'expense or ilt charge, ,they or ipJwe4, regardles$, p( .manner in whiep., ·. l?t tl\e. .Il.t the injU!'f wQB received r or . contracted\ "I\Jl(t' wnetlJer thertlliway company.liad· or had. not any' connection attenatng the hollpitals hIld theprivilege of privatep!ltients in them, and these patients were the only Oll,eil ,!h9 reqUired .to pay fOf $eir boorcl a.n4 treJ1tment; but the moneys this ,sonrce were. more than $BOO per annum..' :A'.hdt:e'W S.' Artist, the defen,dant ineit0r,had his ahd leg injured on the 4tl:lidayofOct()ber; 1889; 'whIle he was in the empl&yment of the company, and, :*M: ,treated atQDBof the hospital!J. mainta,1ned ,hy, it in the way we from 7, 1890, when he was IUl In tlie d:lourse of hi!J,tretJ;tmentthe physicians at the hospital pto'perly' inserted 11 . rl1bber drainage tube,. but, ·through. the carelessness of the physicians or of the attendants, a portion of, it was left in the leg as the wound healed, and when..he was discharged. It caused SUffering and' partial disabUlty until it was rem.oved by a surgical operation in April, 1892, January 13, 1890, w:J1lle I:>oth that this tube remained in the leg, Artist receiVed tr'oni the company $150, and'signed a receipt or release, ·'The Union Pacific Railway "To Andrew S. Artist of CheyetJue, Wyoming. "1890 .', . ".' " "J . ' ""I'i : I·. " . " . ! ,upp:n· ,in settlement' (>f,· clahll. ,of Andrew S. Artist against. accouut of injuries received at on October 4,1889, while assisting in switchiIlS;!l bagglJ,l{e, car l,1rommaiu traek to side track, said Artist being an engineer: lnthe eP1-pJoyofsa,id company, but returning from leave of of ll,ccidlljfl1said injUfY consisting of dElBP, punctured, and lace.l"at.eq·.,·I.W.'Q ii$fOllQ.W On, inn.er.SUXface of rJ.'ght , thigh. On inner . .. !Iii/i'phfQl>t, ComPi fractuxeof fourth toe of rlg.1ltfoot. Contusion in reglou,q,) COIltwlil>n :()n left foot and face. is in full of all claims * * * , Id.ahQ,:J"ll;D,tIary 13, .1890,. of the. PaCific Railway , uqdred dollars,)o"full .. the above account. ;lA,<» payment ot,slUd sum Qf money, I, Andrew S. Artist, of' cli e; in the county of Laramie, in the state of Wyomin.g, hereby remise, release, and forever discharge the said company, its operated, lea,sed,coMVG\\w. and &U;U1al.7 ,Jines and companies" of and from all manner of actions, causes of action, suits. debts and sums of money, dues, claims and demands, Whatsoever, in law or equity, which I have had or. now havEt against said'compimy by reason of any matter, cause, or thing whatever. whethertb'e., ilaw.a arose upOIl ,contract or upon tort, from the beginning of the world t() this day. .' . '. ' , . "In testiIIlony. Whel.'OOf, I' have hereunto set my hand this thirteenth day 1890." .. .
,rm, .
Counsel fbrthecompany requested the court to chllrgethe jury that this release wJU\.,11'somplete the action,and the refusalto give that request is thE! '.:ftrlilt. e:rror aSSIg'lled, . The same counsel requested the court 1;<) charge belleve from the evidence that the hospItal was"ililfflitaiI\.ed by the defendant, not for the purpose of. deriving profit therefrom, }Jut ll-.cliarlta1;l)e enterprise, so far as employes , were only obllg&Ji-qn of the defelldant, in receiving its to care .itl' physicians therein; .and, since nQnegllgence in theel)1ployment of 'you will, you find the .to have been for . TUeco'qrt}:6fused to give the "tliat the not a
UNlbNPAC. RY. CO. V. ARTIST.
367
ciulntable. institution, In· any sEnlSe 'thllttho$e words are .uSed hl the .law, , llilld that company wae botlnd, to uee realilOnablecare to eee. that the treat.. · ment glv'ellto patlente,ri thle hospital was euch as was in hospitals of thie kind to such patients; and this ruling Is the second error complained of.
John W. Lacey (John M. Thurston and Willis Van Devanter, on the brief), for plaintiff in error., Frank H. Clark, for defendant in error. . Before SANBORN, Circuit Judge, and THAYER, District Judge. after stating the facts as above, deSANBORN, Circuit livered the opinion of the court. General words, alone, in a release, are taken most strongly against the releasor. But when there is a pamiculrur recital' followed by general words the latter are qualified by the particular recital. ·Jackson v. Stackhouse, 1 Cow. 122,' 126, and cases cited; 2 Pars. Cont. 633, note. The court below properly applied this rule to the release in this case. The general wprds in the last half of it are limited by the very specific recital of the injuries that the $150, was to be in settlement of, which is contained in the first half of tlte release. It was the' claims for these injuries, and for these only, that this release discharged the company from. Theinjury now complained of was then .unknown to both parties, and their $ettlement was without reference to it. A disregard of the rule would' work manifest injustice, and impose upon the defendant in error a release he. did not intend to make. There was no error in this ruling; Was' the company liable fOT the malpractice of the physioians, or the carelessness of the attendants, at the hospital, if that hospital was maintained as a charitable enterprise, and not for the purpose of deriving profit from it? If one contracts to treat a patient in a hospital-or out of it, for that matter-for any disease or injury, he undoubtedly becomes liable for any injury suffered by the patient through the carelessness of the physicoians or attendants he employs to carry out his contract. If one undertakes to treat such a patient for the purpose of making profit thereby, the law implies the contract to treat him carefully and skillfully, and holds him liable for the carelessness of the physicians and attendants he furnishes. But this doctrine of respondeat superior has no just application where one voluntarily aids in establishing or maintaining a hospital without expectation of pecuniary profit. If one, out of charity, with no purpose of making profit, sends a physician to a sick neighbor or to an injured servant, or furnishes him with hospital accommodations and medical attendance, he is not liable for the carelessness of the physicians or of the attendants. The doctrine of respondeat superior no longer applies, be-cause, by fair implication, he simply undertakes to exercise or<linarycare in the selection of physicians and attendants who are reasonably competent and skillful, and does not agree to become personally responsible for their negligence or mistakes. The same ruleappl'i'es,to corporations and to individuals, whether they are
368
FEDEIt+L REPORTER,
vol. 60.
in dispensing ,theHLown 'charities, or in' di$peludilg' ,the oharitabte giftlJ, of other8·4ntrusted them' toadnimister.," ppe reason why tOr:(Jbrations',@.d,'individulllS conducting hospitals I>rted by chaiitable endowments and contributions, and operated to heal the sick and injured, but not for profit" are not liable for the negligehce of their employes, is, that the motleys in their hands constitute a trust fund dev()tedtoa charitable purpose, and the courts refuse to permit'it to be diverted to the very different ,of paying for Plalpractice of their' physicians or the negligence of their attendants. Moreover, the corporations or indiyid1,1als, that ,administer, such trusts, must, all, leave the treatinent of the patients to the superior and skill of ,P9ysicians.They ca.Anot direct the latter,as the master may ,direct serya,nt,wh.atto do, and, how to do it. If tIley dld: do so, ,physicians would be bound, to ,exercise their judgment, and PIO",Y.e. ·. '.l.';'.l,n t.he,.;J.f .,O.PIDlO,Jh.. ,1!he welfaNiOf the. ,IX1t 1e,ntsreQu.lred It. And, the ,PlJ.tient is not required to accept. the proffered accom.l.lLQdations,8,J;ld .. They are bp.t, ,offered 'to :may to< apcept them, and seek ,otijer physicianri would be a hard rwe, indeed,-a rule .·. cu.,.lated.',t.o,' repr.,ess ,.:the ch.a,rita;b.Ie instinc.ts, of,. men,-that woul<f,CPPlpel th.ose who. have freely cfurnished such accommoda· tioqs !l:\nq services to pay}or the negligence or mis1;akes ,of physi. ,.atten.dan.,.ts.,that., the.",ry b,ad with reasonable care·. No. '8"0"1;1 rule has ever pi;eyailed in this country. ,The nIle is that those"who furniSh 'hospital accommodations and medi.cal atten:ppt fOf the purpose o.f making: profit thereby, but Qut of chariit.""or ill 'tlwcOUl'se of . the ofa charitabla are not liable ,for the malpractice .of the pqysidans ()r the of the attendants thtty employ, but, are responsible only fQf their own want of ordinary in them. McDomi,:/d v. Hospital, 120 432;. Insurance Patrol v. lloyd, 12() Pa. 624,647,15 Atl. 553; Van Tassell v. Hospital 15 N. yo. Sup-p. '620, and note; Gla":in v. Hospital, 12 R. I. 411; Laubheim v. Ste ..Sh, poo.., 107 N.. y.'. .. J 13 N. E. 7Rl; Secord Y. Railwa.y . . . .. 221.; RiChards.on v. Coal. cO.'J (Wash.) 32 Pac. 1012. evidence in. this case, the medical and the,Union Railway ,Company fall fairly within this rtlte, and reaSOUEI, that support the rule apply to this case with all their force. The,test which determines whether such an enterpdlie is charitableor otherwise is its purpose. If its purpose is is ndta charitaqleenterprise. If it is to heal the and relieve the' suffering, without hope. or purpose of getthig'ga,in froIll its operation, it IS charitable. Tr.ied by this test, the and thiscOl;npany are a great They are Ii\Upported by the contributions of thIs great corporation a,'nd of i1;s ep1ployes, without the purpose tOPr9pt thereby. l;ly theirJ"voluntary contributions" not unadvisedly.. We have. ;not failed. to notice that the defendant in testified that the ,contribution of 25 cents a month made
:Ml
0'
j
'. .
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';
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UNION PAC. RY.
co.
V. ARTIST.
869
by each employe wall a compulsory assessment, and that the company took it out of the pay of such employe. But how it could be compulsory not appear. If it was a part of the pay of the employe, the company could not lawfully take. it out without his consent. If he did not consent, then he did not contribute, and the company still owes him the amount of this assessment. If he did consent, he voluntarily contributed the amount of his assessment. Whatever may be said of the contributions of the employe, there is no question whatever but that the gift of $2,000 to $4,000 per month made by the company was purely voluntary and charitable. These contributions of 25 cents per month from each employe, and of from $2,000 to $4,000 per month from the company, constituteda trust fund devoted to the purpose of furnishing hospital accommodations, physicians, and surgeons for the relief of the sick and injured employes without charge or expense to them. For this purpose this fund was intrusted to this company to administer. There is no evidence that there ever was any purpose or intention on the part of the company of making any profit through the operation of this hospital or the supplying of these physicians. The sole purpose that this record discloses was to relieve these employes from sickness and suffering. In Jackson v. Phillips, 14 Allen, 556, Mr. Justice Gray defined a "charity" as follows: "A charity, In the legal sense, may be more fully defined as a gift to be applied, consistently With existing laws. for the benefit of an indefinite number of persons, ·llither by bringing their minds or hearts under the influence of education or religion, by relieving their bodies from disease, suffering, or constraint, by assisting them to establish themselves in life, or by erecting or maintaining public buildings or works, or otherwise lessening the burdens of government." .
The gifts of this corporation and its employes are clearly within this definition. There is no doubt that anyone of these employes could compel the application of this fund to the purpose for which it was collected, in any court of equity having jurisdiction. There was no express contract made by this company to treat this defendant in error in the hospital, for his injuries. It is true that he made his contribution to the fund to maintain this charitable enterprise, but he paid nothing further for his hospital accommodations or his treatment. He neither contributed nor paid any more than he would have contributed if he had never been treated at all. The company, as the trustee and administrator of this charity, offered him the hospital accommodations and the physicians in its employment, and he accepted them. From these facts no contract to treat him with ordinary skill and care can be implied, because, in all that it did in this behalf, this company was conducting a charitable enterprise. The company was not organized for the purpose of furnishingand operating hospitals and supplying medical attendance for gain, and such a business would be clearly beyond its chartered powers. It was chartered to construct and operate a railroad and telegraph line. It was under no legal obligation to give thousands of dollars per annum to furnish hospitals and physicians for its em· ployes, and its appropriation of this money to this purpose was a v.60F.no.3-24
['If it,: befttl!gedi.'tkat,this prompted by an'ttlfurior and 'Mlfish:niotive,--.:..tbatfhe ,compllny may have: thOfight the 'OpetlttioIi; of its' medicaldepartIneilt:would llrote6t'it: from iexOOssive clli!ths 'for injuries' resulting to its serYau ts, -tb.e'ftBt!weriElithat theti'tietes1l ofa pUblic chanty is not the mo· tive!Of thedOli01";but to which the'moliey given is to be. ,.If iatgUillent,autM!i"ty, and ill!lstrri:tion in support of thIS 'proposition iU'e'wanted,they will be found in the learned and of Mr. lJUstice Paxson: in Insurance Patrol v. Boyd, too, St, 646, 15 Atl.553. If a dozen of the employes of, thiS' 'had eontributed a fund," out of cbarity; to furnish one lOf'ltJtijir who wilS'injured, with hospitalaccommodationsafid:medical r attendance! they certainly would not "have been liable to him: for ,the malpra:etice: ()f the phySicians,or the negligence of the 'etnptQyed. ,If they' had' intrusted such a fund to.'ri.tbil'd ',peraontor'ardmiIiister, who, out ofchaPitjr; contributed I to Ilt 'morellli'l'geIy; and:l1e rftn'nished the acoonlmodations and attendanbeby the! use of tliis,funtl, it' goes without saying that he would not beliablEHor the negligence of the physfciansorattendwhom this charitable gift is intrustet'f/tlie partylliat contl1bUtE!s most; liberal11t04t, and the party that cannot by any pdsldbfltty.derive:any directptoftt or bennot .bodily ·ailm,ents"a.nd is a corporation, cannot extend;thel:inlits oHegalliabilityhere. The' result is t4lit doctrine' (If 'respondeat supep.ior:haano application'to this The<My"contract the law.lhIpllel;l here is the on '9Qm,pany to (fare to select and obtain skillful physicians and careful atte:ndants, and if the no further. Xn other words, It was the 01 Its own personal dtity,.andnot for of theduqes of its employes. In. our :opinion on requested by thecounse1for'the eompanyshould have bee.n given, and the judgment is reversed,witb costs, and the case remanded. . with instructions to grant a newtl'ial. T. & s.· F. R. -co. v. REESMAN. (C1rcWt Court of .Appeals, Eighth CirCUit. February 12, 1894.) No. 240.
RAILROA.D COMPANtills-NEGyjGlI:NCEl-:FJl:NCEs-INJVIWTO
EMl'LOYE. Where, through the failure of Ii rallroad company to, erect and maintain sutllcientfences,asrequlred by Rev. St. Mo. 1889,f 2611, an animal gets on i Ule,' track, ca]ls$ng the of! a train, an employe on the. train, whoIS,lnj)1l"ed 1:>;y. t).le accident,is entitled to sue t4lLCorqpany therefor, since designed to protect the persons on ,trains as well as W6ii 'eattle owners. .,', .
a SAME.;;..NE(}tYGENOlllOF FEJ,LOWSERVANT.
, ,The that the Insutllclency of the fence was, by the negllgenCe,of! a fellow servant Is not a:Vf\Uable, since the of fencing, cast by Ule's1ptute upon the' company itself, cannot be delegated by it to its servants. .' . , , . .'