Opinion
November 30, 1961 —
January 9, 1962.
APPEAL from an order of the circuit court for Milwaukee county: RONOLD A. DRECHSLER, Circuit Judge. Reversed.
For the appellants there was a brief by A. M. Chudnow and S. Raymond Spitz, and oral argument by Mr. Chudnow and Mr. James L. Walt, all of Milwaukee.
For the respondents there was a brief by Paulsen, Wake Prosser, attorneys, and Jack R. Wiedabach of counsel, all of Milwaukee, and oral argument by Mr. Wiedabach.
A brief amicus curiae was filed by John W. Reynolds, attorney general, N. S. Heffernan, deputy attorney general, and Warren H. Resh, assistant attorney general.
Action by the plaintiffs to recover damages for the wrongful death of their minor son, Angel Rivera, because of the alleged negligence of the defendants. The pertinent paragraphs of the complaint are as follows:
"3. That the defendant Misericordia Hospital is a domestic corporation organized under and pursuant to the laws of the state of Wisconsin and is engaged in the business of furnishing medical care, attention, and hospitalization at 1255 North Twenty-Second Street, city and county of Milwaukee, state of Wisconsin.
"4. That on or about the 5th day of May, 1957, one David Ramirez and another brought the minor child of the parties, Angel Rivera, to the defendant corporation since the minor child of the parties had swallowed a balloon and was obviously in extreme physical distress. That the said David Ramirez and another brought the said minor child to the defendant Marie Campbell, who was at that time acting as a receptionist, an admitting agent, servant, and employee at the said defendant Misericordia Hospital's place business.
"5. That the said defendant Marie Campbell allowed David Ramirez and the minor child to remain in the lobby of said hospital for a period of more than twenty (20) minutes without furnishing or procuring for said child any care or medical attention, and finally directed the said David Ramirez and the minor child of the plaintiffs away from the hospital on the grounds that the defendant hospital could not take care of an emergency case at that time.
"6. That subsequently and immediately thereafter, the said David Ramirez took said child, Angel Rivera, from said defendant hospital to the Milwaukee County Hospital, but said child died soon thereafter.
"7. That the sole and proximate cause of the death of the minor child of the parties was the negligence of the defendants, Marie Campbell and the Misericordia Hospital, in refusing to secure medical care, aid, and attention for said Angel Rivera within a reasonable time when his life could have still been saved."
The defendants demurred to the complaint for the reason that the same does not state facts sufficient to constitute a cause of action against the defendants. The trial court sustained the demurrer and an order so holding was entered on June 23, 1961. The plaintiffs appealed.
The trial court took judicial notice of the incorporation records in the office of the secretary of state and of the copy of the articles of incorporation of the defendant hospital recorded in the office of the register of deeds for Milwaukee county, and concluded therefrom that the defendant hospital was a nonprofit corporation organized for charitable purposes.
Since the alleged negligence occurred prior to January 10, 1961, the date of the decision in Kojis v. Doctors Hospital, 12 Wis.2d 367, 107 N.W.2d 131, 107 N.W.2d 292, if in fact the defendant hospital is a true nonprofit charitable organization, the trial court would be correct. However, the fact that the articles and by-laws of a corporation declare the same to be a nonprofit charitable organization is not conclusive. Riverview Hospital v. Tomahawk (1943), 243 Wis. 581, 11 N.W.2d 188; Bethel Convalescent Home v. Richfield, ante, p. 1, 111 N.W.2d 913.
The allegations in the complaint with reference to the incorporation of the defendant hospital are in general terms, and, liberally construed, could refer to a hospital operated for profit. If the defendant hospital wishes to raise the affirmative defense that it is a charitable institution and is entitled to immunity in an action for negligence it should do so by answer to the complaint.
If the defendant hospital is entitled to immunity from suit because it is able to prove that it is a nonprofit charitable organization in fact, that does not grant the same immunity to an individual employee. Bachman v. Young Women's Christian Asso. (1922), 179 Wis. 178, 191 N.W. 751. The allegations of negligence as to the individual defendant are stated in very general terms and are somewhat ambiguous. However, upon demurrer those allegations must be given a liberal construction and interpretation, and they are sufficient as against the general demurrer.
Whether or not the individual defendant owed a duty to the patient brought to the hospital and whether or not she was negligent are questions that will have to be determined from facts that may be introduced upon a trial. Therefore, the demurrer should have been overruled and the defendants permitted to answer.
By the Court. — Order reversed.
GORDON, J., took no part.