RAY et ux.
TUCSON MEDICAL CENTER
Judgment reversed and remanded.
James Elliott Dunseath, of Tucson, and Mark Wilmer, of Phoenix, for appellants.
Darnell, Robertson & Holesapple, of Tuscon, for appellee.
Phelps, Justice. Udall, C. J., and Stanford, De Concini and La Prade, JJ., concur.
[72 Ariz. 24] This is an appeal from an order of the trial court directing a verdict in favor of defendant and the judgment entered thereon, and from an order denying plaintiff's motion for a new trial.
The parties will be hereinafter designated as plaintiffs and defendant.
The facts are that defendant is a corporate charitable institution engaged in the business of operating a general hospital in the city of Tucson. The plaintiff Essie Ray on January 24, 1948, entered the defendant's hospital for care and treatment of a torn sciatic nerve from which she was suffering. By February 29th she had almost completely recovered and on that date was being conveyed from her room for a physiotherapy treatment.
The physiotherapy department where these treatments were administered to plaintiff was located in a building forming a part of the defendant's hospital some distance from the building in which plaintiff's room was located. Plaintiff had been conveyed each day from her room to this building for such treatment by means of a regular hospital 4-wheel stretcher. The stretcher is described as a metal vehicle shaped like a narrow bed, approximately 4 feet high with 4 revolving wheels which we understand to mean that all 4 wheels operate on pivots. Arrangements had been made for plaintiff's discharge upon that date and she was on her way to the physiotherapy department to take her last treatment when the accident occurred resulting in the injury of which she complains.
There was employed at the hospital at that time a nurse's aide by the name of Ella Mae Leverette who was instructed on this particular day to convey plaintiff Essie Ray upon the stretcher to the physiotherapy department for her treatment. This was the first time she had been assigned to this task and consequently the first time plaintiff had seen her.
Leading from the door of the building in which plaintiff's room was located was a ramp down which the wheel stretcher had to pass on its way to the other building. The nurse's aide sought to procure aid to get the plaintiff down the ramp but being unable to get assistance, undertook the task alone. She lost control of the stretcher on the ramp. It rolled around several times
and finally turned over, throwing plaintiff [72 Ariz. 25] upon the ground causing severe fright and shock. Plaintiff claims that soon thereafter she began to suffer and ever since has continued to suffer great pain in her upper back, shoulders and neck. It is claimed that the accident and injury occurred as a result of the negligent handling of the stretcher by Ella Mae Leverette and that defendant had failed to exercise due care in employing her as a nurse's aide.
Plaintiffs have presented three questions for our consideration:
1. Did the trial court err in instructing a verdict for defendant? In other words was the evidence of such character as to justify the court in instructing a verdict for defendant?
2. Is defendant as a charitable institution liable for the negligence of its employees?
3. Upon whom did the burden of proof rest to establish due care on the part of defendant in hiring and retaining Ella Mae Leverette of whose negligence plaintiff complains?
We are definitely of the opinion that the question of whether or not defendant exercised due care in the employment of Ella Mae Leverette as a nurse's aide should have been submitted to the jury. While it is true there is no conflict in the evidence as to what investigation defendant made before employing Ella Mae Leverette as a nurse's aide, we are of the view that the evidence, taken as a whole, is of such a character as to cause reasonable men to reach entirely different conclusions as to whether defendant did or did not exercise due care in employing her. Under such circumstances the case should have gone to the jury. Bowers v. J. D. Halstead Lumber Co., 28 Ariz. 122, 236 P. 124. Negligence only becomes a question of law for the court's determination when rational minds may not draw different conclusions from the undisputed evidence. Tom Reed Gold Mines Co. v. Morrison, 26 Ariz. 281, 224 P. 822. Therefore in withdrawing the question of negligence from the jury the court committed reversible error. For this reason alone the judgment of the trial court must be reversed and remanded for a new trial.
Counsel for appellant however urges us to reconsider the question of the liability of charitable institutions for torts committed by their employees. This court declared it to be the law in this state in the two cases of Southern Methodist Hospital and Sanatorium v. Wilson reported in 45 Ariz. 507, 46 P.2d 118 and in Id., 51 Ariz. 424, 77 P.2d 458, that charitable institutions were not liable for the torts of a servant where due care had been exercised in her selection. These decisions were bottomed upon the ground of public policy.
Realizing that public policy is, in its very nature, always fluctuating, varying with customs growing out of changing social, political and economic conditions and recognizing the radical changes that have [72 Ariz. 26] taken place in each of these fields of activity during the past two decades, we believe it not only proper but necessary that we reconsider the rule laid down in those cases.
Except in those jurisdictions where the trust fund theory was originally adopted, and before so many exceptions were incorporated into it, a study of the decisions of the various courts of the United States upon the subject strongly suggest the conclusion that the wishes of the individual members of the courts, rather than logical reasoning, have fathered the concept that corporate charitable institutions occupy a legal status so different from that of other corporate entities that they should be immune from liability for the torts of their servants. In an effort to distinguish them from other corporations the courts have resorted to subtle refinements and sophistry. They have invoked legal fictions and engrafted restrictions upon principles of law so well established and so fundamentally just that their soundness can no longer be questioned. The confused results of these decisions reached by reasons more confusing, lead us to exclaim ...