Opinion
May 15, 1967
Appeal from a partial judgment of the Supreme Court, Sullivan County, entered upon a verdict, which dismissed the affirmative defense of workmen's compensation set forth in defendant's answer. The plaintiff, a student nurse, sustained injuries at the defendant's hospital on May 26, 1960. On that day, she was assigned to the defendant's out-patient-department and, in the course of her duties, under the direction of a hospital nurse, she was putting a cardboard box containing vials of acid back in place in a closet, when the box broke causing the vials to fall to the floor and break, with the result that the acids splashed upon her legs, causing severe burns. This action was brought to recover damages for those injuries, and the defendant's answer pleaded the provisions of the Workmen's Compensation Law (§§ 11, 29, subd. 6) as a complete defense to this action. A separate trial was held of the issues raised by the affirmative defense, resulting in a 10-2 jury verdict in favor of the plaintiff. The trial of the issues of negligence and damages awaits the determination of this appeal. On October 18, 1956, the plaintiff applied for admission to the St. Vincent's Hospital School of Nursing for the term commencing September, 1957. The School of Nursing was founded in 1892 by the Sisters of Charity of St. Vincent De Paul, who also have operated St. Vincent's Hospital since 1849. Plaintiff's tuition for the third year course was $50, with an additional charge of $60 for books, health service, and other fees. In addition, the plaintiff was required to purchase her own uniforms and shoes, and to reside at the school. At the time of the accident, the plaintiff was in her third year of study. As a part of the third year curriculum, the school assigned the student nurses to various clinics in the hospital for clinical instruction. The assignments to each clinic or department were made by the school. The head nurse in charge of the clinic had no control over the number of students assigned and had no choice as to which student would be assigned. The students, over a period of six weeks spent 210 hours in the clinics at the hospital and 30 hours in the classroom. Upon being assigned to a clinic, the students, under the supervision of a graduate nurse, prepared the clinic which included bringing out equipment, setting up equipment and getting the rooms ready. They would assist the doctors, perform what procedures they were capable of doing, and instruct the patients. In addition, they made beds, bathed the patients, took care of bed pans and assisted the graduate nurse in cleaning up the unit, putting away the equipment, and preparing the unit for the next clinic. Their duties were, in some respects, similar to the duties of nurse's aids who were employees of the hospital. The school reserved the right of retaining only those students who, in the judgment of the faculty, met the requirements of health, education and personality, and the necessary skills for a good nurse. The witnesses for the defendant testified that assignments given the students were planned between a faculty member and the head nurse of the department or clinic; that the students received instructions from the head nurse; that the work of students in the various departments under supervision of graduate nurses was part of their training in becoming a registered nurse. The plaintiff's testimony confirms that student nurses were expected to and did, in fact, take orders from regular nurses when assigned to the hospital, even though these nurses did no teaching in the nursing school. There is no testimony which indicates that on the day of the accident plaintiff was under the control or direction of anyone but a regular hospital nurse. The witnesses from the defendant's accounting department testified that the defendant carried a Workmen's Compensation policy of insurance; that the plaintiff was included in its coverage; that the estimated cost of room, board and laundry for each student was approximately $1,200; that, if it were not for the student nurses, it would be necessary for the hospital to hire about 100 additional employees at an annual cost of $342,900, and that the hospital contributed the sum of $1,160 to the school per student in 1959. Upon conclusion of the testimony, the court charged the jury, without exception, that it had but one question to decide and "that is the question of whether or not at the time Miss Galligan received her injuries she was acting as an employee or as a student." The defendant contends that, as a matter of law, it is entitled to a judgment dismissing the complaint based on its affirmative defense, or in the alternative, that the jury verdict was against the weight of the credible evidence; and that a reference by plaintiff's counsel to liability insurance required the granting of its motion for a mistrial. In support of its contention, the defendant cites several cases wherein awards under the Workmen's Compensation Law to student nurses were affirmed by the court. These cases hold that the relationship of employer and employee existed between a student nurse and the hospital during the course of training ( Matter of Commissioner of Taxation Finance v. Willard Parker Hosp., 256 App. Div. 101 8), and that where a student nurse is employed by a hospital her remuneration consisted of room, maintenance, education and training. ( Matter of Nelson v. St. Francis Hosp., 249 App. Div. 910. ) In order to determine that the plaintiff's sole remedy is under the Workmen's Compensation Law, it must appear that the arrangement between the parties was such as to create the relationship of employer and employee, and that the injuries sustained arose out of and in the course of her employment. ( Fellows v. Seymour, 259 App. Div. 966.) "There are four elements which are generally considered in determining whether the relationship of master and servant exists: (1) the selection and engagement of the servant; (2) the payment of salary or wages; (3) the power of dismissal; and, (4) the power of control of the servant's conduct. But while selection and engagement, payment of wages, and the power of dismissal are relevant to the existence of such relationship, they are not conclusive upon the question whether the relationship exists. The really essential element of the relationship is the right of control, that is, the right of one person, the master, to order and control another, the servant, in the performance of work by the latter, and the right to direct the manner in which the work shall be done." (36 N.Y. Jur., Master and Servant, § 2.) (Cf. Matter of Brown v. St. Vincent's Hosp., 222 App. Div. 402.) The record indicates that at the time of plaintiff's injury she was performing an act for the benefit of the defendant under the direction of a hospital nurse, one of the defendant's employees. At least two factors are present for a determination that the master and servant relationship exists; the factor of remuneration, and the factor of direction and control over plaintiff's activity. In addition, plaintiff's acquiescence in the performance of the clinical work can be regarded as implied consent to perform services for the defendant. The plaintiff was rendering a service to the hospital for its pecuniary gain at the time of the accident, under circumstances that made her status similar to that of an apprentice. An apprentice renders services to a master in a trade for the purpose of learning the trade, receiving no remuneration outside of his board and lodging, although the master receives payment for the services rendered by the apprentice. In Heget v. Christ Hosp. (26 N.J. Mis. Rep. 189), the court held that a student nurse was enough like an apprentice to be considered an employee. (See, also, Miller v. Garford Labs., 172 Misc. 567, affd. 262 App. Div. 838, app. dsmd. 288 N.Y. 733.) Upon the uncontradicted evidence in this record the only conclusion possible is that plaintiff was an employee of the defendant and, therefore, that her only remedy was under the Workmen's Compensation Law. Judgment reversed, on the law and the facts, and complaint dismissed, without costs. Reynolds, Aulisi and Staley, Jr., JJ., concur in memorandum by Staley, Jr.; Gibson, P.J., concurs in a separate memorandum, in which Reynolds, Aulisi and Staley, Jr., JJ., concur.
I concur in the result and in the expression of the majority's views generally and write only to emphasize my thought that the minority memorandum appears to depend in large part on a distinction far greater than seems to me warranted between the corporate defendant and its component school. The latter was not, so far as the record discloses, a separate legal entity; it was, in the words of respondent's brief, "operated * * * by the defendant-appellant"; and, having in mind the incalculable harm that any careless or otherwise incompetent worker in the hospital proper could wreak, I find incredible the suggestion or inference that the administrative officers of the corporate defendant did not have complete and undivided authority over and control of the student nurses, generally and as respected their selection and employment and their discharge, thus firmly establishing employment status. The other applicable tests demonstrate the same result. Herlihy, J., dissents and votes to affirm, in the following memorandum: The majority are reversing a verdict of the jury and dismissing the complaint as a matter of law. In this posture of the action the plaintiff is entitled to the most favorable version of the evidence and the reasonable inferences flowing therefrom. While the court would appear to be deciding the issue limited to the facts in the present case, the legal principles it proclaims are such as to deny a student nurse any common-law rights and, it might be argued, of sufficient vitality and broadness as to deny recovery in any similar student relationship. The majority bottoms its opinion upon two factors relating to the master and servant doctrine in reaching its conclusions. (1) It determines that the plaintiff was acting under the direction of a hospital nurse and, therefore, under the control of the hospital. Concededly there must be a close inter-relationship between a hospital and its nursing school, all within the same compound. In order to qualify for graduation the necessity of practical training in the intricacies of the profession is a major part of the training course. From the present record, the jury was entitled to find that the control of the student remained with those in charge of the school and that the hospital nurse was for all practical purposes a teacher, but whose only direction or control over the student was to report to the school authorities her aptitude for nursing, her abilities, her willingness to obey orders and such other information as would aid the authorities in giving the student a proper mark in the particular course then being pursued. (2) As to the finding of remuneration, it seems somewhat incongruous to rely upon the student benefits set forth in the record for the purpose of defeating this cause of action. The hospital made the rules, not the student. The amount paid by a student over a three-year period was something over $500, together with the cost of books and other necessary items and as part of the agreement, the nursing school agreed to furnish room and board in residences provided for that purpose. This arrangement, peculiar to the situation, was not a sufficient basis to constitute a finding as a matter of law that the student was barred from bringing the action because she was paid for her services within the contemplation of the Workmen's Compensation Law. The jury had a right to find otherwise. The majority cites Workmen's Compensation cases which made awards to student nurses. Admittedly, if the present plaintiff had elected to seek compensation, the board, no doubt, would have made a factual finding that she was an employee, but that is neither controlling nor binding in this present action. It seems to me that the situation here is analogous but in reverse of Sivertsen v. State of New York ( 24 A.D.2d 918, revd. 19 N.Y.2d 698). In that action involving injuries to the claimant as the result of the breaking of a stretcher, this court reversed a finding of common-law liability and found as a matter of law that the claimant was within the ambit of the Workmen's Compensation Law. The Court of Appeals reversed this legal finding and directed this court to make factual findings with reference to common-law negligence, which findings in favor of the claimant this court made in 28 A.D.2d 571. In other words, whether it be compensation or common law, the issue in the first instance is factual and the present record sustains the factual finding and leaves no ground for the legal finding made by the majority. Accordingly, I would affirm the partial judgment in favor of the plaintiff.