Opinion
22341.
ARGUED JANUARY 15, 1964.
DECIDED FEBRUARY 18, 1964. REHEARING DENIED MARCH 5, 1964.
Questions certified by the Court of Appeals of Georgia.
Sam F. Lowe, Jr., for plaintiffs in error.
Houston White, Beryl H. Weiner, John E. Hogg, contra.
1. The policy of liability insurance described in the first certified question propounded by the Court of Appeals is such a noncharitable asset as would support a cause of action for recovery under the doctrine of respondent superior where the petition seeks to subject to the judgment only noncharitable assets of a charitable institution.
2. Such a policy may be pleaded in the petition or attached thereto where recovery as to any negligence alleged is sought only against the noncharitable assets of a charitable institution.
ARGUED JANUARY 15, 1964 — DECIDED FEBRUARY 18, 1964 — REHEARING DENIED MARCH 5, 1964.
The Court of Appeals certified to this court the following questions:
"1. In view of the rule authorizing a recovery against a charitable institution under the doctrine of respondent superior, insofar as the petition seeks to recover and to subject to the judgment only assets which are noncharitable assets, is a policy of liability insurance owned by the institution such a noncharitable asset, within the meaning of the rule, as would support a cause of action under the rule, where the policy names the charitable institution and its trustees as the insured and agrees `to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death resulting therefrom, sustained by any person and caused by accident,' and provides that it does not apply `to liability assumed by the insured under any contract or agreement,' and that no action will lie against the company `until the amount of the insured's obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company'?
"If the first question is answered in the affirmative, we desire an answer to the following questions:
"2. May such policy be pleaded in the petition or attached thereto over the objections of the defendant when it is the only `noncharitable asset' alleged?
"3. May such policy be pleaded in the petition or attached thereto over the objections of the defendant where there are other `noncharitable assets' alleged?
"4. If either of the previous questions are answered in the affirmative, could such a policy be pleaded where administrative negligence is also set out in the same count in the petition, where no objection as to multifariousness was made by defendant.
"See, in connection with these questions, Cox v. DeJarnette, 104 Ga. App. 664 ( 123 S.E.2d 16); Morton v. Savannah Hospital, 148 Ga. 438 ( 96 S.E. 887); Arnold v. Walton, 205 Ga. 606."
1. In Morton v. Savannah Hospital, 148 Ga. 438, 441 ( 96 S.E. 887), in answer to certified questions from the Court of Appeals, this court held in part: "... if one is received as a patient at a charitable hospital, is able to pay, and does pay for board, medical attention, and other services, and there is an injury on account of the carelessness, negligence, or incompetence of a nurse or servant of the institution, a petition alleging damages on account of injuries so arising is not subject to demurrer in so far as it seeks to recover from the institution and to subject to the judgment its funds derived strictly from such non-charitable pay patients, as stated above, although it be not alleged in the petition that in the selection of its employees the defendant failed to exercise ordinary care in ascertaining their competency. In so far as the petition seeks to recover and make subject to the judgment the funds in trust for charitable purposes, the petition is demurrable, unless it is alleged therein that in the selection of its employees the defendant failed to exercise ordinary care in ascertaining their competency." It thus appears that it is the rule in Georgia that the funds in trust for charitable purposes are subject to a judgment against a charitable institution for what the Court of Appeals terms "administrative negligence", while only non-charitable assets are subject to a judgment for the negligence of a servant of the charitable institution under the doctrine of respondent superior.
The first question of the Court of Appeals concerns that part of a petition which seeks to subject to the judgment only noncharitable assets of a charitable institution under the doctrine of respondent superior, and inquires whether a described liability insurance policy owned by the institution is such a noncharitable asset as would support such a cause of action. This question has not been previously decided by this court. The Court of Appeals in Cox v. DeJarnette, 104 Ga. App. 664 ( 123 S.E.2d 16), decided the question in the affirmative. That case is not in conflict with Arnold v. Walton, 205 Ga. 606 ( 54 S.E.2d 424), referred to by the Court of Appeals in connection with its certified questions. In the Arnold case, supra, this court held that: "1. A county is not liable to suit for any cause of action unless made so by statute. 2. In the absence of a statutory provision to the contrary, a joint action against a tortfeasor and the tortfeasor's insurance carrier, for the purpose of `fixing the liability' of the insurance carrier, is not maintainable." In the Arnold case it was held that the suit was in effect one against Crisp County as tortfeasor, and that it was not subject to suit in the action brought against it. That case is clearly distinguishable from one involving a charitable institution, which may be liable in a proper case for the negligence of its servants. The questions propounded by the Court of Appeals do not relate to a joint action against a tortfeasor and its insurance carrier.
There is little accord in the courts of different States on legal questions pertaining to the liability of charitable institutions in tort actions. It is our judgment that the opinion of the Court of Appeals in Cox v. DeJarnette, 104 Ga. App. 664, supra, presents the rule that should be applied in this State. Compare O'Connor v. Boulder Sanitarium Assn., 105 Colo. 259 ( 96 P.2d 835, 133 ALR 819); Baptist Memorial Hospital v. Couillens, 176 Tenn. 300 ( 140 S.W.2d 1088). We answer the first question by the Court of Appeals in the affirmative.
2. In Cox v. DeJarnette, 104 Ga. App. 664, supra, (at page 673), the Court of Appeals held: "This case presents an unusual situation in our law in that it permits that the noncharitable asset, the liability insurance policy, be specifically alleged in the petition. In any other petition, except where especially authorized by statute, a reference to a liability insurance policy would be subject to demurrer, and upon proper motion made would require a recasting of the petition by a purging of the language from the pleading which refers to or is descriptive of the policy. ... But where, as here, the existence of the cause of action is based upon, indeed is dependent upon, the liability policy as a noncharitable asset, it is essential that it be set forth in the petition. Under the exception to the charitable immunities doctrine which this case enunciates, namely, the existence of noncharitable assets without which the charity would be immune from tort liability, the then known noncharitable assets must be alleged in the petition in order to state a cause of action." We answer the second and third questions in the affirmative.
The fourth question pertains to an instance where a petition against a charitable institution alleges "administrative negligence" and negligence under the doctrine of respondent superior in the same count, with no objection made by the defendant as to multifariousness, and asks if the described liability policy could be set out in the pleadings. We answer this question in the affirmative.
The questions certified by the Court of Appeals are all answered in the affirmative.
Questions answered. All the Justices concur.