contact with such hot water bag plaintiff's right leg was so severely burned as to result in an open wound requiring a surgical operation before it would heal, and even after the recovery of the wound proved to be considerably impaired, the court held that a public charitable hospital is not liable even to a pay patient therein through the negligence of a nurse employed in the hospital where there was no negligence in the orginal selection of the nurse. It was also held that the rule of public policy was too firmly established by judical decisions to admit of its disturbance, although no doubt it would be wise to hold even charitable institutions to a higher degree of care. That this immunity is founded on public policy upon which also the very doctrine of respondeat superior rests, and should be extended to pay patients on authority of the line of cases holding that the exaction of compensation does not devest the institution of its charitable character. The principle of non-liability in cases wherein it appears that due care was used in the selection of employees and servants, to select only such as were competent and trustworthy, was still further qualified in this decision by the observation that in such selection it is doubtful if the obligation or duty of the hospital extends beyond the employment of competent heads of departments. A corporation organized solely for the purpose of a charity hospital, having no capital stock and declaring no dividends and using its income derived from voluntary contributions, except in certain cases where reasonable amount is charged for board, room and nursing, to those who are able to pay, in the management of the hospital, is not liable for injuries to a pay patient through the negligence of a nurse, where it does not appear that the corporation was negligent in the selection of its servants. The rule is that the receipt of compensation from those who enjoy the comforts

of a hospital librery or institution of like ober

vate gain." But on the contrary such insti tution is still entitled to all the exemptions extended by the law whether such exemptions be from taxation,10 or from negligence of its agents or servants resulting in personal injuries." In Connecticut an institution for the deaf and dumb,12 in Maryland a college,13 and in Massachusetts an asylum for aged women,11 were each held not to be devested of their charitable natures by the mere receipt of fees from the beneficiaries, it appearing that there was no pecuniary profit accruing therefrom, and that their essential characteristic was benevolence. The defendant is not liable except for omission to use due care in the selection of its skilled employees, surgeons, and others, even though the injuries complained of occur in consequence of the breach of an express contract." 15

Privately Endowed Charity Hospitals.-It has been observed above that individual and collective private philanthropy and benevolence are encouraged by the extension to such institutions as are founded thereby, of like exemptions and immunities as are accorded to those founded by individual and collective piety, and upon the like ground that the funds of the institution are impressed with a trust for the purposes contemplated by the donors and cannot be lawfully diverted to any other. In the pioneer case in which liability was denied, the Massachusetts General Hospital was sued for negligent and unskillful treatment of a broken leg, resulting in permanent injuries to the plaintiff, one of the charity patients of the hospital. It appeared that defendant was incorporated by statute, its funds being derived from grants and donations made by the commonwealth from the profits which it was entitled to receive from the Massachusetts Hospital Life Insurance Co., and from other companies doing business in Massachusetts, paid over to it, although no mention is made of any participation in the

control thereof by the state authorities, and from the grants, donations, bequests and subscriptions of benevolent persons, and from the board of paying patients; its objects being the maintenance of a general hospital for the sick and insane. The plaintiff was cared for and nursed, as a charity extended to him occupying one of the free beds established in the hospital. It also appeared that the corporation had no capital stock and yielded no dividends or profits but held its funds and receipts in trust for the exclusive purpose mentioned in its charter. Liability was denied on the ground that the hospital was a public, charitable institution under the laws of the commonwealth, and that the fact that the trustees through their agents are authorized to determine who are to be the immediate objects of the charity and that no person individually had a right to its benefits did not alter its character. "It might well be questioned," said the court, "whether any contract between plaintiff and defendant could be inferred from plaintiff's admission into the hospital. It has offered him those ministrations which as the dispenser of a publie charity it has been able to provide for his comfort, and he has accepted them.16 The foregoing views acquire additional strength from their reiteration by the federal court in Powers v. Massachusetts Homecpathic Hospital, where it was said that the "person who enters a charitable hospital is not a contractor, neither is the hospital a contractor with that person. The person who enters is a mere licensee who must take the service as be finds it. Pollock on Torts (4th Ed.), p. 473, lays down the law that 'invitation is a word applied in common speech to the relation of host and guest. But a guest, that is, a visitor who does not pay for his entertainment, has not the benefit of the legal doctrine of invitation in the sense now before us. He is in point of law nothing but a licensee. The reason given is that he cannot have higher rights than a member of the household of which he has for the time being become a member or a part. All he is entitled to is

plies to a public charity and in this respect a private charity rests upon exactly the same grounds and there is no basis in either to hold that the person who receives bounty is a contractor -a person contracting for services, as one of us engages services when we ordinarly employ a physician."

If, however, there can be any contract inferred from the relation of the parties it can only be on the part of the corporation that it shall use due and reasonable care in the selection of its agents.18 And where a charitable incorporation created by the legislature for the purpose of treating indigent persons, suffering from diseases of the eye and ear, was sought to be subjected to liability for injuries resulting to a patient from the alleged unskillful performance of an operation, but it appeared that due care had been used in the selection of the agents and servants of the institution, including the surgeon in question, it was held that such liability must be denied.19 There can be no charge of negligence unless there is a breach of some duty imposed by law, and to ascertain whether there was negligence on the part of the hospital authorities in their care of one claiming to have sustained injuries from such alleged negligence, the duty which the law imposes on them must be considered.*** In Harris v. Woman's Hospital,20 the court said that the plaintiff's contention that the hospital should be liable for the actual negligence of its physicians and nurse without regard to the fact that it had exercised due care in their selection was questionable, for upon the authorities in regard to the liability of a corporation for the acts of its servants a distinction is made with reference to charity hospitals, it having been held with good reason that they are not liable for injuries to a patient caused by the injurious acts of their agents where it is shown that they have exercised due care in the selection of such agents. The corporation is not liable. for the malpractice of a surgeon or assistant

17 Powers v. Massachusetts Homeopathic Hospital, 101 Fed. Rep. 896, 51 Cent. L. J. 280.

in charge of the patient," or even for injuries resulting from unsafe and dangerous premises. Such is the practical result of a decision denying a cause of action predicated upon the insecure and insufficient construction of the rooms provided for the custody of plaintiff's intestate, an insane person, whereby he was killed while attempting to get out.

Payment of an agreed compensation to the institution for decedent's care and treatment, and the breach of the undertaking of the institution to safely keep him, were all held insufficient to create liability. The defendant institution is a type of many that have sprung up in recent years under private philanthropy, encouraged by enabling legislation, and we may therefore profitably study its description which is given in the opinion of the court, as follows: "The defendant was organized under a statute providing for the incorporation of hospitals or asylums in cases where valuable grants or emoluments have been made to trustees for such purposes, and at the time was maintain ing the institution known as Harper Hospital. The organization had its origin in two deeds conveying lands in trust for the founding and maintenance of an hospital in the city of Detroit, for the succor, care and relief of such aged, sick and poor persons who shall apply for the benefit of the same, and who shall seem to any trustee thereof to be proper subjects of such aid as their means will enable them to afford. The particulars of the scheme for founding the hospital and all the details were left to be devised and controlled by the trustees. The trust was accepted by the trustees, and under the laws above referred to the trustees conveyed the property to the defendant corporation, the deed providing that if the legislature should enact a law enabling a corporation to be formed for the purpose named in them, the trustees might convey all the lands and funds to the corporation formed therefor. The corporation receives no compensation and pays no dividens. It is purely an eleemosynary institu tion, organized and maintained, not for private gain, but for the purpose of giving proper care and medical treatment to the sick. The law under which the defendant is organized recognizes it as a charity, exempts its prop.

21 Eiblee v. Long Island College Hospital, an unreported case cited in 15 N. Y. Supp. 620.

erty from taxation, provides that its funds shall be used faithfully and exclusively for the purpose of its organization. If plaintiff's contention be true, it follows that the charity or trust fund must be used to compensate injured parties for the negligence of the trustees, or architects or builders upon whose judgment reliance was placed as to plans and strength of materials; and also of physicians employed to treat patients, and even for the negligence of nurses and attendants. In this way the trust fund might be entirely destroyed and diverted from the purpose for which the donor gave it. Charitable bequests cannot be thus thwarted for negligence for which the donor is in no manner responsible. If, in the proper execution of the trust, a trustee or an employe commits an act of negligence, he may be held responsible for the negligent act, but the law jealously guards the charitable fund and does not permit it to be frittered away by the negligent acts of those employed in its execution. The trustees of this fund could not by their own direct act divert it from the purpose for which it was given, or for which the act of the legislature authorized the title to be vested in the defendant. It certainly follows that the fund cannot be indirectly diverted by the tortious or negligent acts of the manager of the fund or their employee though such act result in damages to an innocent beneficiary. Those who voluntarily accept the benefit of the charity accept it on this condition. The fact that patients who are able to pay are required to do so, does not deprive the defendant of its eleemosynary character nor permit a recovery for damages on account of the existence of contractual relations. The amounts thus received are not for private gain but contribute to the more effectual accomplishment of the purpose for which the charity was founded. The wrongdoer in a case of injury—but not the trust fund-must. respond in damages. 2 The authorities are in fact in perfect accord that a corporation incurs no liability and parts with no exemption with respect to its character as a charity, by reason of requiring payment, and that the frequent reception of money from any particular patient does not change the nature of the service rendered that patient. What

22

Downs, Admr., v. Harper Hospital, 101 Mich. 555, 60 N. W. Rep. 42, 25 L. R. A. 602, 45 Am. St. Rep. 427.

sation.

23

ever is received is as a proper contribution to a charity on the part of the person who makes the payment. It is not received as compenIt is not compensation in the sense of the law. Again, a corporation conducting a home for the support of aged women, which devotes all its funds to the support of such women in its home, and is no source of profit to its members, is a charitable corporation, although it requires a payment of money as a requisite for admitting a woman to its home. The fact that its funds are supplemented by such amount as it may receive from those who are able to pay wholly or partially for the accommodation that they may receive, does not render it any the less A public charity. All sums thus received are held upon the same trust as are the gifts of pure benevolence.24

An Exception to the Rule of Respondeat Superior.-The drift of the foregoing cases clearly indicates a general conviction that an eleemosynary corporation should not be beld liable for an injury due only to the neglect of a servant and not caused by its own corporate negligence. or the failure to perform a duty impressed on it by law. This general conviction rests on sound legal principles, and is strengthened by an able and exhaustive review of all the American, English, and colonial decisions, in a recent Connecticut opinion in which, in support of what may DOW be appropriately designated, the "American" doctrine. The court said, in part, that "the law which makes one responsible for an act not his own because the sctual wrongdoer is his servant, is based on public policy. The liability of a charitable corporation for the defaults of its servants must depend on the reasons of that rule of policy and their application to such a corporation. This rule of public policy modified the development of the law of master and servant from the beginning, and in this way infused into the law of agency a sort of fictitious agency depending, not on the principle of justice that makes one responsiPowers v. Homeopathic Hospital, 101 Fed. Rep. 896, 51 Cent. L. J. 280.

* Gooch v. Association, 109 Mass. 558. Note on Keeley Institute: The receipt of a royalty on each patient who is treated by a branch establishment

ble for his own act, but on a rule of public policy which, under certain circumstances, estops one from showing that the act in question was not his own. The reasons for the rule have been differently stated by others. In Maximillian v. Mayor of New York,25 the rule is based on the right which the employer has to select his servants, to discharge them if not competent, and to control them while in his employ. Wharton on Negligence, p. 9157, gives the reason of the policy that he who puts in operation an agency which he controls while he receives its emoluments, is responsible for the injuries it incidentally inflicts, relying on Lord Brougham's statement in Duncan v. Findlater, "I am liable for what is done for me and under my orders by the man I employ, for I may turn him from that employment when I please; and the reason that I am liable is this, that by employing him I set the whole thing in motion, and what he does, being done for my benefit, and under my direction, I am responsible for the consequences of doing it." of doing it." Defendant does not come within the main reason of the rule of public policy which supports the doctrine of respondeat superior. It derives no benefit from what its servants do in the sense of that personal and private gain which was the real reason for the rule. Again, so far as persons injured are concerned, as patients of hospitals, defendant does not set the whole thing in motion in the sense in which that phrase is used as expressing a reason for the rule. Such patient injured by the wrongful act of the hospital servant is not a mere third party, a stranger to the transaction, he is rather a participant. The thing about which the servants are employed is the healing of the sick. This is set in motion, not for the benefit of the defendant, but of the public. Surely those who accept the benefit assist as truly as the defendant in setting the whole thing in motion. But the practical ground upon which the rule is based is simply this; on the whole substantial justice is best served by making a master responsible for the injuries caused by his servant acting in his service, when set at work by him to prosecute his private ends, with the expecta

but it rests on public policy too firmly settled to be questioned. We are now asked to apply this rule for the first time to a class of masters distinct from all others who do not and cannot come within the reason of the rule. In other words, we are asked to extend the rule and to declare a new public policy, and say that on the whole substantial justice is best served by making the owners of a public charity involving no private gain, responsible not only for their own wrongful negligence, but also for the wrongful negligence of the servants they employ only for a public use and benefit. We think the law does not justify such an extension of the rule of respondeat superior. It is perhaps immaterial whether we say that public policy which supports the doctrine of respondeat superior does not justify such extension of the rule, or say that public policy which encourages enterprises for charitable purposes requires exemption from the operation of a rule based on legal fiction, and which as applied to the owners of charitable enterprises is clearly opposed to substantial justice. It is enough that a charitable corporation like defendant, whatever may be the principle that controls its liability for corporate neglect in the performance of a corporate duty, is not liable on grounds of public policy for injuries caused by personal wrongful neglect of a servant in the performance of his duty by a servant who it has selected with due care, but in such case the servant alone is responsible for his own wrong.20

Contrary Conclusion Expressed in Rhode Island. In an opinion containing an equally exhaustive review of the cases, the Rhode Island court reached a contrary conclusion. The greater part of the opinion was devoted to an effort to show that the recent English cases have abandoned the reasoning of former decisions, on which was based, principally, the theory of liability worked out in McDonald v. Massachusetts General Hospital, supra, and that therefore such theory is no longer entitled to the respect formerly given it in this class of cases. The position was taken, that although a hospital is adminstered as a charity, and its income derived mainly from its endowments and from voluntary contributions, and the physicians and sur26 Hearns v. Waterbury Hospital, 33 Atl. Rep. 95.

geons attendant thereon and the medical and surgical internes, gave their services without compensation, except that the internes, who were required to be in attendance day and night had their board and lodging in the hos pital, and patients who were able to pay were required to pay nothing beyond a reasonable amount to cover board, washing, warmth and the services of nurses and ward tenders, and an action for damages against such hospital for injuries caused by the negligence of an unskillful interne therefore within the doctrine of McDonald v. Massachusetts General Hospital that a corporation, or quasi-corporation, board or body, having a public trust or duty to discharge gratuitously is not liable for the torts of its servants or employees, if it is personally without fault, yet the authority of that case so far as it rests on the earlier English decision's is so seriously impaired by the more recent expressions of the English courts, that the question arises whether it might not have been better decided on the other grounds suggested in the opinion of the court. The other grounds suggested were two. The first was that the corporation could not be presumed to have agreed to do more than furnish hospital accommodation and these the plaintiff has had, and its liability does not therefore extend beyond the exercise of reasonable care to get such physicians or surgeons as are skillful and trustworthy in their profession. In the case at bar, however, said the court, "the injury was not received from a physician or surgeon but from a surgical interne, and an interne stands on a different footing. It is the duty of the interne, acting on behalf of the hospital, to send for physicians and surgeons promptly in emergencies, and a rule of the hospital prescribes that in all cases requiring immediate and important action, in all doubtful cases, and in all cases requiring immediate operations, the interne shall send for the surgeon of the day, and if he cannot be found for one of the other surgeons. Here, then, we have the relation of principal and agent or master and servant. If the interne neglects to call the surgeon in the class · of cases designated, his neglect is the neglect of the corporation. Now, the plaintiff contends that his injury was such that under the rule a surgeon should have been sent for immediately and that the interne's neglect to