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contact with such hot water bag plaintiff's vate gain.' But on the contrary such insti. right leg was so severely burned as to result tution is still entitled to all the exemptions in an open wound requiring a surgical opera extended by the law whether such exemptions tion before it would heal, and even after the be from taxation, or from negligence of recovery of the wound proved to be consid its agents or servants resulting in personal erably impaired, the court held that a public injuries. In Connecticut an institution for charitable hospital is not liable even to a pay the deaf and dumb,l? in Maryland a college, 13 patient therein through the negligence of a / and in Massachusetts an asylum for aged nurse employed in the hospital where there women,14 were each held not to be devested was no negligence in the orginal selection of of their charitable natures by the mere receipt the nurse. It was also held that the rule of fees from the beneficiaries, it appearing of public policy was too firmly established that there was no pecuniary profit accruing by judical decisions to admit of its disturb therefrom, and that their essential characterance, although no doubt it would be wise to istic was benevolence. The defendant is not hold even charitable institutions to a higher liable except for omission to use due care in degree of care. That this immunity is the selection of its skilled employees, surfounded on public policy upon which also the geons, and others, even though the injuries very doctrine of respondeat superior rests, complained of occur in consequence of the and should be extended to pay patients on breach of an express contract.15 authority of the line of cases holding that the Privately Endowed Charity Hospitals.-IV exaction of compensation does not devest the has been observed above that individual and institution of its charitable character. The collective private philanthropy and benevoprinciple of non-liability in cases wherein it lence are encouraged by the extension to such appears that due care was used in the selec institutions as are founded thereby, of like tion of employees and servants, to select only exemptions and immunities as are accorded such as were competent and trustworthy, was to those founded by individual and collective still further qualified in this decision by the piety,and upon the like ground that the funds observation that in such selection it is of the institution are impressed with a trust doubtful if the obligation or duty of the bos for the purposes contemplated by the donors pital extends beyond the employment of and cannot be lawfully diverted to any other. competent heads of departments.? A cor In the pioneer case in which liability was poration organized solely for the purpose of denied, the Massachusetts General Hospital a charity hospital, having no capital stock and was sued for negligent and unskillful treatdeclaring no dividends and using its income ment of a broken leg, resulting in permanent derived from voluntary contributions, except injuries to the plaintiff, one of the charity in certain cases where reasonable amount is patients of the hospital. It appeared that charged for board, roow and nursing, to defendant was incorporated by statute, its those who are able to pay, in the manage funds being derived from grants and donament of the hospital, is not liable for injuries tions made by the commonwealth from the to a pay patient through the negligence of a profits which it was entitled to receive from nurse, where it does not appear that the cor the Massachusetts Hospital Life Insurance poration was negligent in the selection of its Co., and from other companies doing business servants.8 The rule is that the receipt of com in Massachusetts, paid over to it, although no pensation from those who enjoy the comforts mention is made of any participation in the of a hospital, library or institution of like character does not affect its charitable nature, pro 9 Donahue's Appeal, 86 Pa. St. 312.

10 New York Hospital v. Purdy, 12 N. Y. Supp. 307. vided its objects and purposes are wholly

11 Ward v. St. Vincent's Hospital, 50 N. Y. Supp. 466. charitable and it contains no element of pri 18 American Asylum v. Phenix Bank, 4 Conn. 172,

10 Am. Dec. 112.

18 Regents of the University of Maryland v. Wil" Ward v. St. Vincent's Hospital, 50 N. Y. Supp. liams, 9 Gill & J. 365. 466. And see Joel v. Women's Hospital, 35 N. Y. 14 Gooch v. Associantion for Relief of Aged FeSupp. 37, identical in the facts, and a like result was

males, 109 Mass. 558. reached, and similar opinions expressed.

15 Van Tassell v. Manbattan Eye & Ear Hospital, 16 8 Connors v. Sisters of the Poor of St. Francis, 20 N. Y. Supp. 620; Joel v. Woman's Hospital, 35 N. Y. Ohio S. & C. P. Dec. 86.

Supp. 37, 89 Hun, 78.

control thereof by the state authorities, and plies to a public charity and in this respect a from the grants, donations, bequests and private charity rests upon exactly the same subscriptions of benevolent persons, and grounds and there is no basis in either to hold from the board of paying patients ; its ob that the person who receives bounty is a jects being the maintenance of a general contractor —a person contracting for servhospital for the sick and insane. The plaint- ices, as one of us engages services when we iff was cared for and nursed, as a charity ordinarly employ a physician."17 extended to bim occupying one of the free If, however, there can be any contract inbeds established in the hospital. It also ap ferred from the relation of the parties it can peared that the corporation had no capital only be on the part of the corporation that it stock and yielded no dividends or profits but shall use due and reasonable care in the held its funds and receipts in trust for the selection of its agents.18 And wbere a chariexclusive purpose mentioned in its charter. table incorporation created by the legislaLiability was denied on the ground that the ture for the purpose of treating indigent perhospital was a public, charitable institution sons, suffering from diseases of the eye and under the laws of the commonwealth, and that ear, was sought to be subjected to liability the fact that the trustees through their agents for injuries resulting to a patient from the .. are authorized to determine who are to be the alleged unskillful performance of an operaimmediate objects of the charity and that no tion, but it appeared that due care had been person individually had a right to its benefits used in tbe selection of the agents and servdid not alter its character. “It might well ants of the institution, including the surgeon be questioned,'' said the court, “whether any in question, it was held that such liability contract between plaintiff and defendant must be denied. 19 There can be no charge could be inferred from plaintiff's admission of negligence unless there is a breach of into the hospital. It has offered him those some duty imposed by law, and to ascertain ministrations which as the dispenser of a pub whether there was negligence on the part of lic cbarity it has been able to provide for the hospital authorities in their care of one his comfort, and he has accepted them. 16 claiming to have sustained injuries from such The foregoing views acquire additional alleged negligence, the duty which the law strength from their reiteration by the federal imposes on them must be considered. * * * coort in Powers v. Massachusetts Homeco In Harris v. Woman's Hospital, 20 the court pathic Hospital, where it was said that the said that the plaintiff's contention that the "person who enters a charitable hospital is hospital should be liable for the actual pegnot as contractor, neither is the hospital a ligence of its pbysicians and nurse without contractor with that person. The person | regard to the fact that it had exercised due who enters is a mere licensee wbo care in their selection was questionable, for must take the service as be finds upon the authorities in regard to the liability it. Pollock on Torts (4th Ed.), p. 473, lays of a corporation for the acts of its servants down the law tbat 'invitation is a word ap a distinction is made with reference to plied in common speech to the relation of charity hospitals, it having been beld with host and guest. But a guest, tbat is, a vis. good reason that they are not liable for initor who does not pay for his entertainment, juries to a patient caused by the injurious has not the benefit of the legal doctrine of acts of their agents where it is shown that invitation in the sense now before us. He is they have exercised due care in the selection in point of law notbing but a licensee. The of such agents. The corporation is not liable reason given is that he cannot bave bigher for the malpractice of a surgeon or assistant rights than a member of the bousehold of which he has for the time heing become a 17 Powers v. Massachusetts Homeopatbic Hospital, member or a part. All be is entitled to is | 101 Fed. Rep. 896, 51 Cent. L. J. 280. not to be led into a danger known to bis host

18 McDonald v. Massachusetts General Hospital, 120

Mass. 432, 21 Am. Rep. 529. and not known by or reasonably apparent to 19 Van Tassell v. Manhattan Eye & Ear Hospital, 15 bimself. This is the precise rule which ap X. Y. Supp. 620, 39 N. Y. St. Rep. 781.

20 14 N. Y. Supp. 881, citing Pryor v. Hospital, 4 N. 16 McDonald v. Massachusetts General Hospital, Y. L. J. 450. And see Proctor v. Mambattan Eye & 120 Mass. 432 21 Am. Rep. 529.

Ear Hospital, 15 Med. Rec. 25.

in charge of the patient, 21 or even for injuries erty from taxation, provides that its funds resulting from unsafe and dangerous premi. shall be used faithfully and exclusively for ses. Such is the practical result of a decis the purpose of its organization. If plaintiff's ion denying a cause of action predicated contention be true, it follows that the charity upon the insecure and insufficient construc. or trust fund must be used to compensate tion of the rooms provided for the custody injured parties for the negligence of the of plaintiff's intestate, an insane person, trustees, or architects or builders upon whose whereby be was killed while attempting to judgment reliance was placed as to plans get out. Payment of an agreed compensa and strength of materials; and also of phy, tion to the institution for decedent's care and sicians employed to treat patients, and even treatment, and the breach of the undertaking for the negligence of nurses and attendants. of the institution to safely keep him, were all In this way the trust fund might be entirely held insufficient to create liability. The de destroyed and diverted from the purpose for fendant institution is a type of many that which the donor gave it. Charitable bequests have sprung up in recent years under private cannot be thus thwarted for negligence for philanthropy, encouraged by enabling leg. which the donor is in no manner responsible. islation, and we may therefore profitably If, in the proper execution of the trust, a trusstudy its description wbich is given in the tee or an employe: commits an act of negliopinion of the court, as follows: "The de gence, be may be held responsible for the fendant was organized under a statute pro negligent act, but the law jealously guards the viding for the incorporation of hospitals or charitable fund and does not permit it to be asylums in cases where valuable grants or frittered away by the negligent acts of those emoluments have been made to trustees for employed in its execution. The trustees of such purposes, and at the time was maintain. this fund could not by their own direct act ing the institution known as Harper Hospital. divert it from the purpose for which it was Tbe organization had its origin in two deeds given, or for which the act of the legislature conveying lands in trust for the founding and authorized the title to be vested in the demaintenance of an hospital in the city of fendant. It certainly follows that the fund Detroit, for the succor, care and relief of cannot be indirectly diverted by the torlious such aged, sick and poor persons who shall | or negligent acts of thc manager of the fund apply for the benefit of the same, and who or their employee though such act iesult in shall seem to any trustee thereof to be proper damages to an innocent beneficiary. Those subjects of such aid as their means will en who voluntarily accept the benefit of the able them to afford. The particulars of the charity accept it on this condition. The fact scheme for founding the hospital and all the that patients who are able to pay are redetails were left to be devised and controlled quired to do so, does not deprive the defend. by the trustees. The trust was accepted by ant of its eleemosynary character nor permit the trustees, and under the laws above refer a recovery for damages on account of the red to the trustees conveyed the property to existence of contractual relations. The the defendant corporation, the deed provid. amounts thus received are not for private ing that if the legislature should enact a law gain but contribute to the more effectual acenabling a corporation to be formed for the complishment of the purpose for wbich the purpose named in them, the trustees might charity was founded. The wrongdoer in a convey all the lands and funds to the cor- ! case of injury—but not the trust fund-must. poration formed therefor. The corporation respond in damages. The authorities are in receives no compensation and pays no divi. fact in perfect accord that a corporation indens. It is purely an eleemosynary institu curs no liability and parts with no exemption tion,organized and maintained, not for private with respect to its character as a charity, by gain, but for the purpose of giving proper reason of requiring payment, and tbat the care and medical treatment to the sick. The frequent reception of money from any par. law under which the defendant is organized ticular patient does not change the nature of recognizes it as a charity, exempts its prop. the service rendered that patient. What

21 Eiblee v. Long Island College Hospital, an unre 2 Downs, Admr., v. Harper Hospital, 101 Mich. 565, ported case cited in 15 N. Y. Supp. 620.

GO N. W. Rep. 42, 25 L. R. A. 602, 45 Am. St. Rep. 437.

ever is received is as a proper contribution to ble for bis own act, but on a rule of public • cbarity on the part of the person who makes policy which, under certain circumstances, the payment. It is not received as compen- estops one from showing that the act in sation. It is not compensation in the sense question was not bis own. The reasons for of the law. Again, a corporation conducto the rule have been differently stated by ing a home for the support of aged women, others. In Maximillian v. Mayor of New which devotes all its funds to the support of York,25 the rule is based on the right which sucb women in its bome, and is no source of the employer has to select his servants, to profit to its members, is a charitable corpora discharge them if not competent, and to contion, although it requires a payment of trol them wbile in bis employ. Wharton on money as a requisite for admitting a woman Negligence, p. 9157, gives the reason of the to its home. The fact that its funds are sup policy that he who puts in operation an plemented by such amount as it may receive agency which he controls while he receives from those who are able to pay wholly or its emoluments, is responsible for the injuries partially for the accommodation tbat they it incidentally ipflicts, relying on Lord may receive, does not render it any tbe less Brougbam's statement in Duncan v. Finds public charity. All sums thus received are later, “I am liable for what is done for me held upon the same trust as are the gifts of and under my orders by the man I employ, pure benevolence.24

for I may turn bim from that employment An Exception to the Rule of Respondeat when I please ; and the reason that I am Superior.-The drift of the foregoing cases liable is this, tbat by employing him I set clearly indicates a general conviction that an the whole thing in motion, and wbat he does, eleemosypary corporation should not be beld being done for my benefit, and under my liable for an injury due only to the neglect direction, I am responsible for the conseof a servant and not caused by its own cor quences of doing it.” Defendant does not porate negligence. or the failure to perform come within the main reason of the rule of

duty impressed on it by law. This general public policy wbich supports the doctrine of conviction rests on sound legal principles, respondeat superior. It derives no benefit and is strengthened by an able and exhaust. from what its servants do in the sense of that ive review of all the American, English, and personal and private gain wbich was the real colonial decisions, in a recent Connecticut reason for the rule. Again, so far as peropinion in which, in support of what may sons injured are concerned, as patients of DOW be appropriately designated, the hospitals, defendant does not set the whole “American" doctrine. The court said, in thing in motion in the sense in which that part, that “the law which makes one re phrase is used as expressing a reason for the sponsible for an act not his own because the rule. Sucb patient injured by the wrongful sctual wrongdoer is bis servant, is based on act of the hospital servant is not a mere public policy. The liability of a charitable tbird party, a stranger to the transaction, he corporation for the defaults of its servants is rather a participant. The thing about inust depend on the reasons of that rule of which the servants are employed is the healpolicy and their application to such a cor- ing of the sick. This is set in motion, not poration. This rule of public policy modi- . | for the benefit of the defendant, but of the fied the development of the law of master public. Surely those who accept the benefit and servant from the beginning, and in this assist as truly as the defendant in setting the way. infused into the law of agency a sort of | whole thing in motion. But the practical fictitious agency depending, not on the ground upon which the rule is based is simprinciple of justice that makes one responsi ply this; on the whole substantial justice is but it rests on public policy too firmly set. geons attendant thereon and the medical add. tled to be questioned. We are now asked to surgical internes, gave their services without apply this rule for the first time to a class of compensation, except that the internes, who masters distinct from all others who do not were required to be in attendance day and and cannot come within the reason of the | night bad their board and lodging in the hosrule. In other words, we are asked to ex pital, and patients who were able to pay were tend the rule and to declare a new public | required to pay nothing beyond a reasonable policy, and say that on the whole substan amount to cover board, washing, warmth and tial justice is best served by making the the services of nurses and wardtenders, and owners of a public charity involving po pri- | an action for damages against such hospital vate gain, responsible not only for their own for injuries caused by the negligence of an wrongful negligence, but also for the wrong unskillful interne therefore wilbin the docful negligence of the servants they employ | trine of McDonald v. Massachusetts General only for a public use and benefit. We think Hospital that a corporation, or quasi-corpothe law does not justify such an extension of ration, board or body, having a public trust or the rule of respondeat superior. It is per duty to discharge gratuitously is not liable haps immaterial whether we say tbat public for the torts of its servants or employees, if it policy wbich supports the doctrine of re- is personally without fault, yet the authority spondeat superior does not justify such ex- | of that case so far as it rests on the earlier tension of the rule, or say that public policy English decision's is so seriously impaired by whicb encourages enterprises for cbaritable the more recent expressions of the English purposes requires exemption from the opera- | courts, that the question arises whether it tion of a rule based on legal fiction, and might not have been better decided on the which as applied to the owners of charitable other grounds suggested in the opinion of the enterprises is clearly opposed to substantial court. The other grounds suggested were justice. It is enough that a charitable cor- two. The first was that the corporation could poration like defendant, wbatever may be not be presumed to have agreed to do more the principle that controls its liability for than furnish hospital accommodation and corporate neglect in the performance of a | these the plaintiff has had, and its liability corporate duty, is not liable on grounds of does not therefore extend beyond the exerpublic policy for injuries caused by personal cise of reasonable care to get such physicians wrongful neglect of a servant in the per- or surgeons as are skillful and trustworthy formance of his duty by a servant who it bas in their profession. In the case at bar, selected with due care, but in such case the however, said the court, “The injury was pot servant alone is responsible for bis own received from a physician or surgeon but from wrong. 26

* Powers v. Homeopathic Hospital, 101 Fed. Rep. best served by making a master responsible . 896, 61 Cent. L. J. 280.

for the injuries caused by his servant acting Gooch v. Association, 109 Mass. 558. Note on

in bis service, when set at work by him to Keeley Institute: The receipt of a royalty on each patient who is treated by a branch establishment

prosecute his private ends, with the expectadoes not render the parent institute liable for the tion of deriving from that work private benenegligence of individuals conducting such branch, re.

fit. This has at times proved a bard rule sulting in death of a patient. Keeley Institute v. Dougherty, 28 S. E. Rep. 511.

62 N. Y. 168, 20 Am. Rep. 468.

a surgical interne, and an interne stands Contrary Conclusion Expressed in Rhode on a different footing. It is the duty of the Island.-In an opinion containing an equally interne, acting on behalf of the hospital, to: exhaustive review of the cases, the Rhode / send for physicians and surgeons promptly Island court reached a contrary conclusion. in emergencies, and a rule of the hospital The greater part of the opinion was devoted prescribes that in all cases requiring to an effort to show that the recent Epglish immediate and important action, in all cases have abandoned the reasoning of former doubtful cases, and in all cases requiring im. decisions, on wbich was based, principally, mediate operations, the interne shall send the theory of liability worked out in Mc- for the surgeon of the day, and if he cannot Donald v. Massachusetts General Hospital, be found for one of the other surgeons. supra, and that therefore such theory is do Here, then, we have the relation of principal longer entitled to the respect formerly given and agent or master and servant. If the in: it in this class of cases. The position was terne neglects to call the surgeon in the class • taken, that although a hospital is adminstered of cases designated, bis neglect is the nego as a charity, and its income derived mainly lect of the corporation. Now, the plaintiff from its endowments and from voluntary contends that his injury was such tbat under contributions, and the pbysicians and sur. | the rule a surgeon should have been sent for

28 Hearns v. Waterbury Hospital, 33 Atl. Rep. 95. Timmediately and tbat the interne's neglect to,

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