Eastwood, Jayne, and Clapp. The opinion of the court was delivered by Jayne, J.A.D.
The question propounded to us for appellate determination in accordance with R.R. 1:7-1(c); 2:7-1, is a relatively narrow one. It reads:
"Did the trial court commit error in excluding evidence of the financial operation of the defendant hospital corporation when its charitable status was denied by the plaintiffs?"
The exclusion of evidence to which the inquiry relates is the action of the trial judge in sustaining the objections to certain specific questions addressed by the attorney of
the plaintiffs to the administrator who is in charge of the management of the institution generally known as the Fitkin Memorial Hospital situate in Monmouth County. The anticipation that the answers to the questions, if permitted to have been given, would have supplied evidence that the Fitkin Memorial Hospital is not a charitable institution seems fanciful, but that observation is not pertinent to the legal propriety of the interrogation of the witness.
A brief prefatory explanation will suffice. On February 17, 1951 the infant plaintiff, who was born on September 15, 1950, sustained a bodily injury while a patient at the defendant hospital which was alleged to have been proximately caused by the carelessness of the institution, the administrator, and certain designated nurses. The present action was instituted by the infant through the representation of a guardian ad litem and by the infant's father to recover from the hospital association and the individuals mentioned compensatory damages for the bodily injuries suffered by the infant in the mishap and the consequential losses incurred by the father.
The alleged causes of action against the individual defendants were voluntarily dismissed. The defendant hospital averred in its answer that it was being conducted as a charitable institution and accordingly entitled to the immunity accorded by the law to such institutions from liability to respond in damages for the negligence of its employees of the nature alleged in the complaint. For reasons of expedition this issue became a preliminary one in the order of the introduction of the evidence at the trial.
At the conclusion of the pertinent evidence the trial judge resolved that the hospital was a charitable organization within the import and meaning of our decisional law and that in the circumstances of the mishap it was entitled to be exonerated from liability. A conformable judgment for this defendant was entered from which the plaintiffs prosecute the present appeal.
The principle of law which confers upon charitable institutions such as hospitals and upon eleemosynary corporations
in certain circumstances an immunity from liability does not appear to be a subject of discord in the consideration of the present appeal. In our jurisdiction we turn to the decisions in D'Amato v. Orange Memorial Hospital , 101 N.J.L. 61 (E. & A. 1925); Boeckel v. Orange Memorial Hospital , 108 N.J.L. 453 (Sup. Ct. 1932), affirmed 110 N.J.L. 509 (E. & A. 1933); Simmons v. Wiley M.E. Church , 112 N.J.L. 129 (E. & A. 1934); Kolb v. Monmouth Memorial Hospital , 116 N.J.L. 118 (E. & A. 1936); Bianchi v. South Park Presbyterian Church , 123 N.J.L. 325 (E. & A. 1939); Rose v. Raleigh Fitkin-Paul Morgan, etc., Foundation , 136 N.J.L. 553 (E. & A. 1948); Woods v. Overlook Hospital Ass'n , 6 N.J. Super. 47 (App. Div. 1949); Jones v. St. Mary's Roman Catholic Church , 7 N.J. 533 (1951).
Assuredly the basis for the immunity is the actual devotion of the institution to a charitable pursuit. The claim of immunity is an affirmative defense and the burden of proving the right to such exoneration descends upon the party projecting such an averment. Equally positive, where the basis of the defense is in issue, is the opportunity of the plaintiff to submit competent and relevant evidence in the endeavor to prove that the defending institution is not in fact being conducted in furtherance and support of any charitable and beneficent object and purpose.
We therefore direct our attention to the evidence in the present case. The hospital derives its corporate existence from the act of the Legislature authorizing the incorporation of associations not for pecuniary profit. The certificate of incorporation was admitted in evidence which contains the following disclosure of the purposes of the association:
"SECOND: The purposes for which the Association is formed and merged are the maintenance of a public hospital, providing medical advice and medicines and medical and surgical aid for the injured, sick and disabled and such others as may need medical attention and medical treatment, and the establishing, maintaining and operating of a school for the training, education, instruction or ...