#### Robert B. Duncan, Administrator, appellee, v. Nebraska Sanitarium & Benevolent Association, appellant.

Filed October 18, 1912.

No. 17,086.

1. Charities: Hospitals: Liability: Neligence of Nurses. A charitable institution conducting a hospital solely for philanthropic *and*benevolent purposes is *not*liable to inmates for the negligence of nurses.

2. -: -: -: -. A charitable institution conducting a hospital does not, by accepting compensation from a patient who is able to pay for room, board and care, incur liability to such patient for the negligence of nurses.

3. -: -: -: -. A charitable institution conducting a hospital for benevolent purposes alone does not necessarily incur liability in damages for the death of an insane patient who committed suicide when alone in a room, though pay for the patient’s room and care was accepted under an oral agreement to keep a nurse in constant attendance.

Appeal from the district court for Lancaster county: Lincoln Frost, Judge.

*Reversed,.*

*John M. Steivart*and *T. F. A. Williams,*for appellant.

*Charles O. Whedon*and *C. P. Peterson, contra.*

Rose, J.

When Sadie Duncan was occupying a room in defendant’s hospital, she committed suicide in absence of a nurse or other attendant, and this is an action by her husband as administrator of ber estate to recover from defendant damages for negligently causing her death. Plaintiff alleges that, in consideration of $45 a week, she was accepted as an inmate under a verbal agreement by defendant to give her necessary medical attention and to furnish a trained nurse to be in constant attendance upon her. In the petition it is also alleged that her death was *163due solely to the wrongful act, neglect, default and carelessness of defendant in leaving her alone and unattended. The right of plaintiff to a recovery was resisted on the ground that defendant is exempt from liability to its inmates for the negligence of nurses and other attendants, because it is a charitable institution, conducted solely for philanthropic and benevolent purposes. Prom a judgment in favor of plaintiff for $3,275, defendant has appealed.

After giving a number of instructions the trial court charged the jury as follows: “The undisputed evidence further shows that the defendant is a charitable institution maintained for philanthropic and charitable and benevolent purposes., and in no manner directly or indirectly for private profit or dividend-paying to any one.” This instruction was fully justified by the evidence, and was properly given. In stating the law applicable, however, the trial court said: “You are instructed that if you find from the evidence that said Sadie Duncan was in any sense a charitable patient, or, in other words, a beneficiary of any bounty at the hands of the defendant, and the amount paid does not make full pecuniary compensation for the services rendered, then the deceased’s representative, the plaintiff herein, cannot recover, and your verdict must be for the defendant. On the other hand, if you find from the evidence that the deceased was received as a patient on full pay, full pecuniary compensation, and without being the recipient of any charity or bounty at the hands of the defendant, then the defendant would be liable for any negligence of its agents or servants which proximately contributed to the deceased’s death.”

This instruction is assailed as erroneous. It contains two propositions of Iuav, and the first seems to be correct. It is a well-established doctrine that a charitable institution conducting a hospital solely foi philanthropic and benevolent purposes is not liable to inmates for the negligence of nurses. Some courts say that one accepting the *164benefits of sncli a charity exempts his benefactor from liability for the negligent acts of servants. Others assert that non-liability is based on the ground that trust funds created for benevolent purposes should not be diverted therefrom to pay damages arising from the torts of servants. Exemption from liability is frequently sanctioned on the ground that public policy encourages the support and maintenance of charitable institutions and protects their funds from the maAv of litigation. While there is a diversity of opinion as to the reasons for the rule, the doctrine itself is firmly established. *Thornton v. Franklin Square House,*200 Mass. 465, 22 L. R. A. n. s. 486; *Farrigan v. Pevear,*193 Mass. 147, 7 L. R. A. n. s. 481.; *Powers v. Massachusetts Homæopathic Hospital,*101 Fed. 896, 65 L. R. A. 372; *Downes v. Harper Hospital,*101 Mich. 555; *Parks v. Northwestern University,*121 Ill. App. 512, 218 Ill. 381; *Joel v. Woman’s Hospital,*89 Hun (N. Y.) 73; *Ward v. St. Vincent’s Hospital,*50 N. Y. Supp. 466; *Conner v. Sisters of Poor,*7 Ohio N. P. 514; *Abston v. Waldon Academy,*118 Tenn. 24, 102 S. W. 351; *Adams v. University Hospital,*122 Mo. App. 675; *Hearns v. Waterbury Hospital,*66 Conn. 98, 31 L. R. A. 224. In applying the law thus established the trial court Avas right.

The second proposition stated in the instruction last quoted, however, is erroneous. It permits the jury to find in favor of plaintiff, if full compensation was paid to defendant. The uncontradicted evidence is that the agreed rate as pleaded by plaintiff Avas not paid. On the contrary, a reduced rate was paid and accepted. Even if full compensation had been paid, it would not necessarily folloAV that the patient received no benefit from charity. She occupied a room in a building maintained in part at least by donated funds intended for benevolent purposes. Necessary care, skill and food came from the same source. On the record as made, the jury should not have been permuted to find that the inmate had received no benefit from charity. A charitable institution *165conducting a hospital does not, by accepting compensation from a patient who is able to pay for room, board and care, incur liability to such patient for the negligence of nurses. *Jensen v. Maine Eye & Ear Infirmary,*107 Me. 408, 33 L. R. A. n. s. 141; *Cunningham v. The Sheltering Arms,*135 App. Div. (N. Y.) 178; *Gable v. Sisters of St. Francis,*227 Pa. St. 254; *McDonald v. Massachusetts General Hospital,*120 Mass. 432; *Powers v. Massachusetts Homæopathic Hospital,*101 Fed. 896; 65 L. R. A. 372; *Downes v. Harper Hospital,*101 Mich. 555; *Parks v. Northwestern University,*121 Ill. App. 512, 218 Ill. 381; *Ward v. St. Vincent’s Hospital,*50 N. Y. Supp. 466; *Conner v. Sisters of Poor,*7 Ohio N. P. 514; *Taylor v. Protestant Hospital Ass’n,*85 Ohio St. 90. Money accepted from patients who are able to pay it does not go to persons who may be trustees, directors, founders, or incorporators of the institution, and is not a source of pecuniary gain to private individuals, but is devoted to the general purposes of the charity.

To justify the recovery, plaintiff ably argues that defendant is liable for damages because, for a valuable consideration, it entered into a verbal contract to keep a nurse in constant attendance upon the inmate, because that duty rested on defendant itself and could not be delegated to servants, because the agreement was violated and because the negligent breach of the contract resulted in the death of the inmate. The right to recover damages for the causing of death by a wrongful act is created by statute. Comp. St. 1911, ch. 21, secs. 1, 2. It is based on tort, and not on contract. It does not exist independently of statute. A charitable institution conducting a hospital for benevolent purposes alone does not necessarily incur liability in damages for the death of an insane patient who committed suicide when alone in a room, though pay for the patient’s room and care was accepted under an oral agreement to keep a nurse in constant attendance. *Downes v. Harper Hospital,*101 Mich. 555; *Taylor v. Protestant Hospital Ass’n,*85 Ohio *166St. 90; *Lewis’ Adm’r v. Taylor Coal Co.,*112 Ky. 845, 66 S. W. 1044; *Duncan v. St. Luke’s Hospital,*98 N. Y. Supp. 867. The report of the last case cited shows that an insane woman was kept in a hospital under contract to keep a guard in constant attendance for $7 a day, that the agreement was violated, and that, in absence of a guard, the inmate killed herself. The facts were fully pleaded. The existence and violation of contractual obligations were invoked to sustain a cause of action. In the opinion it was said: “The contract was to keep a constant watch and guard. It was not to prevent the unfortunate patient from committing suicide. Nor could it fairly be held to be within the reasonable intendment of this contract that the hospital agreed to pay to the husband the value of his wife’s life to him in case she did commit suicide. There has been no case cited to us, nor have Ave been able to find one, aaíiícIi allows a recovery upon such a complaint or such a state of facts. Nor can we see any reason why there should be any difference in the rule where the tortious act which caused death is alleged to be a breach of an express contract than where it is alleged to be a breach of an implied contract, or Avhere no contractual relation at all existed.”

This reasoning is applicable to the present case. In permitting the jury to find in favor of plaintiff, if defendant received full compensation, the trial court was in error. As the case stood when submitted to the jury, there should liaA'e been a peremptory instruction for defendant. The judgment is therefore reversed and the cause remanded.

Reversed.

Letton, J.

I concur in the result on the ground that full payment for service is not the test of liability, and the instruction to that effect is erroneous.