WALTER E. GRUENINGER vs. PRESIDENT AND FELLOWS OF HARVARD COLLEGE.

SPALDING, J. The relevant averments of the plaintiff's amended declaration are these. Prior to March 18, 1958, the defendant "acting in its . . . [proprietary] and private capacity" agreed for a fee to provide medical care and attention to the plaintiff, if needed, pursuant to an insurance plan to which the plaintiff had subscribed. The defendant owned and operated the insurance plan, which "was not a charitable endeavor," but "was an enterprise entered into by the defendant for profit . . . as a commercial venture." From March 18, 1958, to August 22, 1958, when the agreement was in force, the defendant's employees provided medical care to the plaintiff at its facilities maintained for the use of those subscribing to the

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insurance plan. The defendant, for consideration, "procured the services of the defendant, its agents, servants or employees, to examine, treat and cure the plaintiff's illness and/or disease." The defendant "undertook the examination, diagnosis, treatment, care and cure of the plaintiff's illness and/or disease, and thereby owed the plaintiff the duty of reasonable care, skill and attention in that respect." But the defendant's employees, neglecting to exercise reasonable care, failed to "ascertain the true nature and extent of the plaintiff's illness and/or disease and to treat it properly." As a result of such failure the plaintiff sustained severe injuries, "including total and permanent loss of the sight of both eyes."

The defendant demurred, and its demurrer was sustained. The plaintiff appealed. The grounds assigned in the demurrer were as follows: (1) The matters contained in the declaration are insufficient in law to enable the plaintiff to maintain his action. (2) The matters contained in the declaration are insufficient in law inasmuch as it appears from the act of incorporation of the defendant of the Massachusetts Bay Colony on May 31, 1650, and from the Constitution of the Commonwealth that the defendant is a domestic charitable corporation, and the declaration failed to allege facts which would render such a corporation liable. [Note 1] (3) The declaration does not state concisely and with substantial certainty the substantive facts necessary to constitute a cause of action as required by G. L. c. 231, Section 7, Second.

1. The first and second grounds will be considered together, for the only reason urged for the declaration being insufficient in law is that the defendant was a charitable corporation and hence not liable. Charitable immunity is an affirmative defence (Barrett v. Brooks Hosp. Inc. 338 Mass. 754, 756) and matters of defence are not open on demurrer. Boston Nutrition Soc. Inc. v. Stare, 342 Mass. 439, 443. We need not decide whether, where the declaration

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(unlike that in Reavey v. Guild of St. Agnes, 284 Mass. 300) contains no allegation that the defendant is a public charitable corporation, the question of charitable immunity is before us on a demurrer which refers to the act of incorporation and to a portion of the Constitution which mentions the defendant. Since the result would be the same, we assume that the question would be open. "A charitable corporation is not liable for negligence in the course of activities within its corporate powers carried on to accomplish directly its charitable purposes. This is true even though such activities incidentally yield revenue. On the other hand, there is liability for negligence in the course of activities incidental to the corporate powers but primarily commercial in character, though carried on to obtain revenue to be used for the charitable purposes of the corporation." Reavey v. Guild of St. Agnes, 284 Mass. 300, 301-302. We are of opinion that the allegations in the declaration, although somewhat general in nature, were sufficient averment that the defendant's activities which gave rise to this action were primarily commercial in nature. If the plaintiff can establish that at the trial, the defence of charitable immunity would fail. McKay v. Morgan Memorial Coop. Indus. & Stores, Inc. 272 Mass. 121, 124, and cases cited. The demurrer, therefore, could not be sustained on the first and second grounds.

2. The third ground of demurrer is based on G. L. c. 231, Section 7, Second, which provides that "The declaration shall state concisely and with substantial certainty the substantive facts necessary to constitute the cause of action." In essence the declaration is in tort for malpractice. Coburn v. Moore, 320 Mass. 116, 117-118. "Great detail in pleading well known torts or infringement of legal rights is not required." Caverno v. Fellows, 286 Mass. 440, 443. Details which would be necessary in evidence, such as the nature of the plaintiff's illness, the acts or omissions constituting negligence, the precise time and place of the alleged tortious conduct, and the persons who participated in it, if not included in the declaration, are not fatal. See

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Flye v. Hall, 224 Mass. 528, 529. The declaration under consideration leaves much to be desired. Indeed, it goes to the verge in vagueness. But it does state in skeleton form a cause of action. Such information as the defendant may lack to prepare its case for trial can be obtained by particulars and discovery. We are of opinion that the order sustaining the demurrer should be reversed.

So ordered.