Lewis v. Young Men's Christian Assn.

LANGDON, J.

This is an appeal by the defendant from

a judgment against it in an action brought by Walter P. Lewis and Claire Lewis, his wife, to recover damages suffered by them by reason of injuries to the wife, sustained while she was swimming in the swimming pool of the defendant. The answer of defendant denied negligence in the particulars alleged in the complaint, and alleged that defendant was organized and conducted as a religious, benevolent and charitable corporation. It did not allege, however, nor prove, that it used reasonable care in the selection of its agents and employees. Admitting that defendant has proven that it is a charitable organization, it failed in its defense on that ground in that it failed to plead and prove that it had used due care in selecting its servants, whose negligence caused the injury to plaintiff. That fact is an integral part of the defense, the rule being stated in

Thomas

v.

German Benevolent

Society, 168 Cal. 183 [141 Pac. 1186], as follows: “That where one accepts the benefit of a public or of a private charity, he exempts by implied contract the benefactor from liability for the negligence of the servants in administering the charity, if the benefactor has used due care in the selection of those servants.” In the case of

Roberts

v.

Ohio Valley Gen. Hospital,

98 W. Va. 476 [42 A. L. R. 968, 127 S. E. 318], it was said: “Because of its failure to allege that the defendant used reasonable care in selecting the nurse of whose negligence the plaintiff complains, we hold that the plea presented does not in terms state a defense to the action.”

[117]

Defendant relies upon the ease of

Burdell

v.

St. Luke’s Hospital,

37 Cal. App„ 310 [173 Pac. 1008], and contends that it is therein assumed that the burden of proving that the charitable organization did not use reasonable care in the selection of its servants is upon the plaintiff seeking to recover for their negligence; but an examination of the reporter’s transcript in that case discloses that the defendant' fully proved, as a part of its case, that it had exercised reasonable care in the selection of its agents and employees, which disposes of appellant’s assumption with reference to this case.