Clapp, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.
This action was occasioned by the occurrence of a most unfortunate mishap in which the infant plaintiff, at the age of five months, suffered a serious bodily injury attributable, it is alleged, to the negligence of a student nurse in the service of the defendant hospital.
Our decision reported in 30 N.J. Super. 82 (App. Div. 1954), is informative of previous proceedings in the action, in which we were constrained to reverse the judgment of involuntary dismissal in favor of the defendant and afford the plaintiff a new trial in both his representative and individual capacities.
The defendant hospital averred in its answer that it is conducted as a charitable institution and is 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. Our examination of the transcript of the proceedings at the
former trial induced us to conclude that the attorney of the plaintiff had been erroneously deprived of his right to indulge in a liberal inquiry at the trial to ascertain whether the defendant was in fact a charitable organization within the import and meaning of our applicable decisional law.
"We conjecture that the trial judge reasonably apprehended that the endeavors of the attorney of the plaintiffs to elicit evidence that the Fitkin Memorial Hospital was not a charitable institution would be an extravagant expenditure of time and as futile as lowering a bucket into an empty well. Perhaps such would have been the eventuality and one possibly to be anticipated at a new trial, but we observe that the infant plaintiff sustained an exceedingly severe and grievous bodily injury in the mishap. The error in law is plain. R.R. 1:5-3(c); 2:5. In this situation we feel it to be our duty to reverse the judgment."
The opportunity completely to pursue the desired inquiry concerning the charitable character of the service rendered by the defendant was made available to the plaintiff's attorney at the new trial and our conjectural forecast became the eventuality. A judgment of involuntary dismissal of the action was granted. However, the administration of justice rests more comfortably. The plaintiff again appeals and this time we believe without sufficient legal or factual grounds.
The undisputed facts elicited relating to the maintenance costs of the hospital, the necessary charitable donations to sustain it, and the gratuitous care and services indiscriminately dispensed by the institution without profit so conclusively established its charitable classification that the duty devolved upon the court to declare the judgment in conformity with the existing state of the law. Gentile v. Public Service Coordinated Transport , 12 N.J. Super. 45, 50 (App. Div. 1951); Jones v. St. Mary's Roman Catholic Church , 7 N.J. 533 (1951), certiorari denied 342 U.S. 886, 72 S. Ct. 175, 96 L. Ed. 664 (1951).
In our jurisdiction we consult 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); Fair v. Atlantic City Hospital , 25 N.J. Misc. 65 (Cir. Ct. 1946); 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, supra. Cf. ...