Opinion
Rehearing Denied April 13, 1939
Hearing Granted by Supreme Court May 15, 1939
Appeal from Superior Court, Los Angeles County; Lewis Howell Smith, Judge.
Personal injury action by A.E. England, special administrator of the estate of Charles E. England, deceased, against the Hospital of the Good Samaritan. From a judgment for plaintiff and from an order denying defendant’s motion to vacate and set aside the judgment, defendant appeals.
Affirmed.
COUNSEL
Gibson, Dunn & Crutcher, by Norman S. Sterry, and Phillip C. Sterry, all of Los Angeles (Ira C. Powers and Frederic Sturdy, both of Los Angeles, of counsel), for appellant.
William K. Young, of Los Angeles, for respondent.
OPINION
CRAIL, Presiding Justice.
This is an appeal from a judgment in favor of the plaintiff and from an order denying the motion of the defendant to vacate and set aside the judgment and enter one in its favor.
The action was for personal injuries which were sustained by the plaintiff in 1935 while he was a patient in the defendant hospital as the result of the negligence of one of defendant’s nurses.
The case has been before this court on two prior appeals. In the first appeal the court reversed a judgment in favor of the defendant. England v. Hospital of Good Samaritan, 16 Cal.App.2d 640, 61 P.2d 48. The case was retried, resulting again in a verdict and judgment for the defendant. The trial court granted a new trial on the ground of error in giving and refusing instructions. When the matter came before this court on appeal the court affirmed the order upon the ground, among others, that the superior court had erred in declining to give an instruction requested by the plaintiff to the effect that the defense of nonliability because of the charitable character of the defendant was unavailing if the jury should find that the plaintiff at the time of entering the hospital had no knowledge or belief that the defendant claimed to be a charitable institution, and further that he paid the regular rates from which the defendant derived a profit. England v. Hospital of Good Samaritan, 22 Cal.App.2d 226, 70 P.2d 692, 693. The law contained in this instruction became the law of the case. The instruction to which we refer reads as follows: "You are instructed that the defense of nonliability because of its charitable character is unavailable to defendant, if you find from the evidence that plaintiff had no knowledge or belief that defendant claimed to be or was a charitable institution, and further provided you find that plaintiff paid its regular rates to defendant from which it derived a profit." Thereafter the case was tried a third time— the last time before the court and without a jury, the court making findings of fact and conclusions of law upon which the judgment was based.
It is the contention of the defendant on appeal that the facts found do not sustain the judgment, but, on the contrary, require a judgment in favor of the defendant for the reason, it is claimed, that under the facts found the patient was received at a rate of 56.13 per cent of the actual cost of accommodations and services furnished.
The only findings of fact and conclusions of law which it is necessary to set out in order to obtain a fair understanding of the question are as follows:
"The court finds that the average cost per day per patient to the defendant in the operation of its said hospital from 1931 to 1935, inclusive, was as follows: 1931, $8.70; 1932, $8.80; 1933, $8.09; 1934, $7.06; and 1935, $6.49; that at the time the plaintiff entered the hospital he was offered a rate of $25 per week for room, board, hospitalization and nursing services, which rate he paid; the court finds that the cost to defendant in furnishing the plaintiff with said room, board, hospitalization and nursing services was the sum of $45.43 per week and that the difference between the rate paid by plaintiff and the average cost to the defendant in rendering the aforesaid services was the sum of $20.43 per week.
"The court finds that from 1931 to 1935, inclusive, within the limits of its facilities and within the limit of the revenue derived from the aforementioned endowment fund the defendant furnished free hospitalization to indigent patients applying therefor; during said period the rates established by defendant for the various classes of accommodations furnished to patients ranged from a minimum of $25.00 per week to a maximum of $175.00 per week, which rates were based upon the class of accommodations furnished the patient.
"The court finds that during the period from 1931 to 1935, inclusive, patients financially able to pay the same were charged rates for the services rendered and accommodations furnished to them from which the defendant derived a profit and a portion of the profit thus realized was used by the defendant to defray the cost of rendering hospital treatment to those patients financially unable to pay a rate sufficient to cover the cost of hospitalization furnished them, and to defray the cost of rendering hospital treatment to patients gratuitously; a portion of said profits so realized was used by defendant in reducing its mortgage indebtedness, which said indebtedness was created by defendant in the construction and acquisition of its hospital building and facilities, and in this connection the court finds that said mortgage indebtedness had been reduced from the sum of $1,450,000.00 in 1931 to the sum of $1,424,662.03 in 1935.
"It is true that for the year 1935 defendant earned a net profit of $62,767.00 from the operation of said hospital. It is true that the earned surplus of defendant at the end of 1935 was $65,470.00, and that the capital surplus was $282,578.10. *** It is true that at the time plaintiff applied for admission to said hospital that plaintiff had no knowledge and was not aware of the alleged charitable character of defendant hospital and it is further true that plaintiff had no knowledge at any time that defendant claimed to be free from liability from negligence on the part of its employees, by reason of its alleged charitable character or otherwise. It is true that plaintiff applied for admission to defendant hospital and was received as a patient, paying the minimum rate of $25 per week, which rate included the furnishing of nursing care and attendance by defendant to plaintiff, and that no charity was ever extended to plaintiff."
"Conclusions of Law
"The defendant is not entitled to exemption from liability because of its charitable character. That plaintiff had no knowledge, information or belief respecting the charitable character of the defendant hospital at the time he was received nor during the time he remained as a patient therein; that he paid the usual and customary rates required thereat, and no charity was requested by nor extended to him." The only part of the findings upon which defendant relies to sustain its contention is the phrase contained in the first paragraph of the above-quoted findings which reads: "the court finds that the cost to defendant in furnishing the plaintiff with said room, board, hospitalization and nursing services was the sum of $45.43 per week". It will be observed that in such paragraph the court inserted the word "average" before the word "cost" in two different places, and when the whole paragraph is read fairly no interpretation may be given to the clause upon which defendant relies other than that the court was speaking of the average cost to defendant. The court makes this clear by going right along with the same sentence and saying "that the difference between the rate paid by plaintiff and the average cost to the defendant in rendering the aforesaid services was the sum of $20.43 per week". In order to maintain the defendant’s contention the phrase upon which it relies must be picked up and carried entirely out of its context— which is in regard to average costs. The plaintiff was not only not paying average costs but was not getting average services, as stated in the findings the fee being "based upon the class of accommodations furnished the patient". Under the defendant’s contention in this appeal the cost of maintaining a patient paying the usual weekly rate of $25 in a two-bed ward, who is served by one nurse along with 30 other patients, is the same as the cost of a patient paying the $175 weekly rate, who is housed in a luxurious suite and attended continuously by day and night nurses. Furthermore, in fixing the average cost figure of $6.49 per day for 1935, there was taken into account the sum of $25,697.30, which represented the amount charged on the hospital books for free care. This free care was certainly no part of the plaintiff’s cost to the defendant.
It will thus be seen that in our view the defendant misconstrues the findings and that when the findings are properly interpreted they sustain the judgment.
It will be observed that the court did find that the defendant earned a net profit of $62,767 for the operation of its hospital during 1935; that the plaintiff applied for admission to the defendant hospital and was received as a patient paying the minimum rate of $25 per week; and that no charity was extended to plaintiff; and that at the time the plaintiff applied for admission to said hospital he had no knowledge of the alleged charitable character of defendant hospital, and that plaintiff had no knowledge at any time that defendant claimed to be free from liability for negligence on the part of its employees by reason of its alleged charitable character; and that the plaintiff paid the usual and customary rates required and no charity was requested by nor extended to him.
The defendant’s second contention on appeal is based upon the same misconstruction of the findings and needs no further discussion by us.
Finally, the defendant contends that if we will abandon the law of the case and take up the question on the general law, it will be necessary to enter a judgment in favor of the defendant. But the defendant does not urge us to abandon the law of the case and we see no reason for discussing it.
Judgment affirmed.
I concur: WOOD, J.
McCOMB, J., deeming himself disqualified, took no part in the decision.