Opinion
The plaintiff pleaded in reply to the defense of charitable immunity that the defendant carried insurance indemnifying it against all liability for negligence. Held that this fact is irrelevant to the question of liability and the demurrer to the reply should have been sustained. Plaintiff's intestate, a premature baby, was fatally burned by the heat of the lamps used to warm his bassinet. The plaintiff offered extensive evidence of defendant's negligence in selecting its personnel and the bassinet and, in general, in running the department, while the defendant offered evidence contra. Under these circumstances, a charge of res ipsa loquitur should not have been given. A circular issued by the manufacturer of the incubator, which the administrator of the hospital had at the time of its purchase, was admissible to show that steps had been taken by her to determine whether it was a good incubator. The remedy of non obstante veredicto was not available to the defendant under the circumstances.
Argued November 12, 1947
Decided January 15, 1948
ACTION to recover damages for the death of the plaintiff's intestate, brought to the Superior Court in New Haven County where a demurrer to the plaintiff's reply was overruled, Wynne, J., and the issues were tried to the jury before Daly, J.; verdict and judgment for the plaintiff and appeal by the defendant. Error and new trial ordered.
The appellee filed a plea in abatement which was dismissed.
PER CURIAM. The defendant appealed from the refusal of the trial court to set aside a verdict in favor of the plaintiff and from the judgment. It obtained an extension of time for filing its request for a finding and draft finding to a day certain and for filing a transcript of the evidence until it filed its assignments of error, and later it was granted a further extension of time to a day certain in which to file its request for a finding and draft finding. These were ultimately filed, the trial court made its finding and the defendant filed its assignments of error. The errors assigned included one seeking to strike out several paragraphs from the finding and others which might be presented to the court upon the record, without any correction of the finding. Some days after the assignments were filed, the defendant sent a transcript of the evidence to the clerk, who refused to file it because of objection made by the plaintiff. Subsequently, on February 15, 1947, the defendant made a motion to the trial court that it certify the evidence and order it printed, and on the same day the plaintiff filed a plea in abatement to the appeal. On February 19, 1947, the trial court granted the defendant's motion of February 15. The plea in abatement was based substantially on the ground that the evidence was not filed with the assignments of error or within any proper extension of time for filing it, as required by 346 of the Practice Book where corrections are sought in a finding; the defendant answered, alleging the granting of its motion of February 15; and the plaintiff demurred to that answer. Under the rules of appellate procedure as they now stand, a trial court may in general grant an extension of time for filing papers after the time fixed by the rules has expired, and action upon a motion filed after the time constitutes an extension by implication; Rossi v. Jackson Co., 120 Conn. 456, 464, 181 A. 539; and the certification of evidence filed after the permissible time in itself constitutes an extension. Gross Bros. Sales Corporation v. Liebmann, Liebmann Salant, 103 Conn. 750, 753, 131 A. 593. The provision in the amendments to Practice Book, 335, adopted in 1943 and 1945, that extensions of time to take an appeal can be granted only before the expiration of the time theretofore limited applies only to the taking of the appeal. State ex rel. Baskin v. Bartlett, 132 Conn. 623, 624, 46 A.2d 335. In this case, the granting of the defendant's motion that the trial court certify the evidence and order it made a part of the record was sufficient to make effective the filing and certification of the evidence. We have recently pointed out that even after an appeal is taken it is for the trial court to take the steps necessary to perfect it, and have held that the filing of a plea in abatement does not prevent it from performing that function. Walsh v. Laffen, 131 Conn. 358, 360, 40 A.2d 689. The answer to the plea in abatement was on sound ground. Moreover, if the plaintiff had been correct in his position, that would not have justified the abatement of the appeal because, even though the defendant could not then claim corrections of the finding, its appeal would properly present other issues for our determination. Distin v. Bradley, 53 Conn. 466, 471, 76 A. 991. The plaintiff might have made a motion to this court to strike out the assignment of error seeking such corrections and to strike the evidence from the record. State v. Kreske, 130 Conn. 555, 560, note, 36 A.2d 389. The demurrer to the answer is overruled and the plea in abatement is dismissed.
Cyril Coleman, for the appellant (defendant).
Alfonse C. Fasano, for the appellee (plaintiff).
The determinative issue on this appeal is the effect to be accorded to the existence of insurance on the immunity of a charitable hospital from tort liability. The question arose in this way: The plaintiff, as administrator, charged the hospital and its servants and agents with negligence causing the death of his infant son. The defendant filed a special defense alleging that it was a charitable corporation. The plaintiff pleaded in reply thereto that the defendant carried insurance indemnifying it and its property, funds and assets against all liability for negligence and agreed to limit his recovery to the indemnity procurable under the insurance policy. He also alleged that by carrying insurance and thus protecting its trust funds and other property from depletion the defendant was estopped from claiming charitable immunity. A demurrer to the reply was filed by the defendant and overruled. On the trial these pleadings were read to the jury. The court charged, over the defendant's objections and without mentioning charitable immunity, that the defendant was liable for negligence, and it duly excepted. The ruling and the charge were assigned as error. The plaintiff admitted in open court that the defendant was a charitable corporation and the defendant admitted that it was insured. The insurance question was recently raised in Edwards v. Grace Hospital Society, 130 Conn. 568, 570, 36 A.2d 273; A-191 Rec. Briefs, p. 245, back of p. 252; but it was not necessary to the decision and was not decided.
The plaintiff's claim has a certain meritorious basis, for, except as to premiums, the funds of the hospital are protected to the extent of the collectible insurance when it is insured. Nevertheless, it is not valid. If the charitable institution is not liable for the negligence alleged, it cannot be made liable because it took out insurance which would cover a judgment recovered against it. The fact is irrelevant to the question of liability. See Shaker v. Shaker, 129 Conn. 518, 523, 29 A.2d 765. "The basis on which the defendant's legal responsibility for torts rests would not be changed by its entering into a contract with an insurance company by which the latter for a consideration and within specified limits undertakes to assume responsibility for damages resulting from accidents for which the defendant might be found to be liable, even though thereby to a certain extent the diversion of the funds of the defendant to that purpose might be avoided." Enman v. Trustees of Boston University, 270 Mass. 299, 301, 170 N.E. 43; see McKay v. Morgan Memorialc. Stores, Inc., 272 Mass. 121, 126, 172 N.E. 68. This conclusion is supported by the overwhelming weight of authority. Many cases are collected in a note, 145 A.L.R. 1338. To them the defendant has added Piper v. Epstein, 326 Ill. App. 400, 405, 62 N.E.2d 139; Stedem v. Jewish Memorial Hospital Assn., (Mo) 187 S.W.2d 469, 471; Schau v. Morgan, 241 Wis. 334, 342, 6 N.W.2d 212. The Piper case, decided in 1945, cites and discusses the cases quite fully, and that discussion need not be repeated here. Cases decided under the strict "trust fund theory" are not pertinent, since this court has declined to adopt that theory. Cohen v. General Hospital Society, 113 Conn. 188, 197, 154 A. 435. Practically, if the plaintiff's contention should prevail, the result would be that a plaintiff negligently injured in an insured hospital would get judgment while a plaintiff injured in an uninsured hospital would not. The distinction has no logical basis. Furthermore, the question would arise, does the policy cover the particular risk involved? See Lambert v. New Haven, 129 Conn. 647, 649, 30 A.2d 923. There would be an increase in rates. The existence of insurance in this case was irrelevant on the question of liability and the charge and ruling on the demurrer were erroneous.
No extended discussion of the other assignments of error is necessary. Plaintiff's intestate, a premature baby, was fatally burned by the heat of the lamps used to warm his bassinet. The jury found in answer to an interrogatory that the baby fell to the bottom of the bassinet and received the burns because an agent of the hospital, acting within the scope of his or her authority, dropped him. The court charged in effect, and the plaintiff claimed, that this person was one of the three hospital nurses assigned to the ward. The doctrine of res ipsa loquitur, on which the jury was charged, is inapplicable. The conditions under which it operates are stated in Briganti v. Connecticut Co., 119 Conn. 316, 320, 175 A. 679. When they are met, the doctrine permits an inference of negligence. Livingstone v. New Haven, 125 Conn. 123, 126, 3 A.2d 836. The claims of proof show, however, that the plaintiff offered extensive evidence of the defendant's lack of due care in selecting its personnel and the bassinet and, in general, in running the department, while the defendant offered evidence contra. Under these circumstances, a charge in res ipsa loquitur should not be given. Ryan v. Lilley Co., 121 Conn. 26, 31, 183 A. 2.
The complaint alleged that the defendant was negligent in failing to provide a proper incubator. The administrator of the hospital testified as to the steps taken to provide the apparatus and, in that connection, offered in evidence a circular issued by the manufacturer which the witness had at the time of the purchase. The circular was not offered for the truth of the statements therein contained but to show that steps had been taken by the witness to determine whether it was a good incubator. It was excluded. The circular was admissible for that purpose.
Counsel for the defendant renewed his motion, made in similar cases, that judgment be directed for the defendant non obstante veredicto and assigned its denial as error. The question was examined with care in the preparation of the opinion in Evans v. Lawrence Memorial Associated Hospitals, 133 Conn. 311, 50 A.2d 443, and the conclusion was reached (p. 317) that the remedy was not available. The defendant did not assign error in the denial of its motion to set aside the verdict. It is therefore unnecessary to discuss the evidence.