Quick v. High Point Memorial Hospital, Inc.

BRANCH, J.

The sole question presented for decision on this appeal is: Did the trial court err in striking from the defendant’s answer and amendment to its answer that it is an eleemosynary or charitable institution, being a non-stock, non-profit hospital corporation?

*452 Plaintiff’s motion to strike defendant’s entire Further Answer and Defense on the ground that facts alleged do not constitute a proper defense to plaintiff’s action is in substance a demurrer to defendant’s Further Answer and Defense. G.S. 1-141, in pertinent part, provides: “The plaintiff may in all cases demur to an answer containing new matter, where, upon its face, it does not constitute a . . . defense; and he may demur to one or more of such defenses . . ., and reply to the residue.”

Williams v. Hospital Asso., 234 N.C. 536 , 67 S.E. 2d 662 ;

Jenkins v. Fields, 240 N.C. 776 , 83 S.E. 2d 908 .

An order or judgment which sustains a demurrer affects a substantial right and a defendant may appeal therefrom. G.S. 1-277. Rule 4(a), Rules of Practice in the Supreme Court, 242 N.C. 766 , when otherwise applicable, limits the right of immediate appeal only in instances where the demurrer is overruled.

The defendant’s Further Answer and Defense pleaded charitable immunity.

Even before this Court held in Rabon v. Hospital, ante 1, that the doctrine of charitable immunity no longer applies to hospitals, the doctrine applied only to beneficiaries of the charity.

In the case of Cowans v. Hospitals, 197 N.C. 41 , 147 S.E. 672 , the Court held that a charitable institution was liable in damages for a negligent injury inflicted by it on an employee, as distinguished from a beneficiary of its charity, i. e., a patient. All the cases in this jurisdiction which have applied the doctrine of charitable immunity involve beneficiaries of the charity. Williams v. Hospital, 237 N.C. 387 , 75 S.E. 2d 303 ;

Barden v. R. R., 152 N.C. 318 , 67 S.E. 971 ;

Herndon v. Massey, 217 N.C. 610 , 8 S.E. 2d 914 ;

Hoke v. Glenn, 167 N.C. 594 , 83 S.E. 807 .

Williams v. Hospital, supra, and all other cases of similar import were overruled by Babón v. Hospital, supra.

In the instant case, however, plaintiff was not a beneficiary of defendant’s charity. The doctrine of charitable immunity therefore had no application at the time defendant’s answer was filed.

The order allowing plaintiff’s motion to strike is Affirmed.