mesne process, as the debt cannot be transferred to the officer by the judgment, the rule of damages claimed by defendant has been adopted."

erty attached by him on process against | mesne process and for refusal to serve the plaintiff. The case was tried while the attachment suit was still pending. The question for decision was whether the plaintiff, as general owner of the property, could maintain an action for the officer's neglect The claim of the defendant was the right in the care thereof while the attachment to show in mitigation that the debtor was was still in force. The exception was to at the time of the neglect sued for the refusal of the trial court to direct a wholly unable to respond. The rather verdict for the defendant on the ground harsh rule laid down in Hall v. Brooks, that the plaintiff did not have any cause and followed in several other cases, is apof action at the time the suit was com-parently restricted by the holding in Kidmenced. It was held that an injury to the property happening through the officer's negligence in caring for it was an injury to the debtor in any event, as the loss would finally fall on him, whether the property was restored to him or sold to pay his debts. Judge Aldis, who wrote the opinion, uses the language quoted by the plaintiff by way of argument. It is not necessary to consider whether it is mere dictum or whether it correctly states the rule as to the creditor's right to sue for damage due to neglect in the case of attached property; for, treating it as a decision, it amounts to no more than saying that in the case of such official negligence the creditor's injury is remote and consequential in the technical sense of the

term.

Munger v. Fletcher, 2 Vt. 524; West River Bank v. Gorham, 38 Vt. 649; and Wolcott v. Gray, Brayton (Vt.) 91, shed no light on the question. The effect of these decisions is that the defendant may defeat the suit by showing that plaintiff has suffered no injury by the defendant's wrongful act. It is unnecessary to decide whether the burden of showing injury rests upon the plaintiff, or whether want of injury is a matter of defense. In the case at bar the facts alleged show present injury, and not a state of facts harmless in themselves, from which, in connection with subsequent circumstances, injury follows. The decisions upon this question are conflicting. that the plaintiff would make out a prima facie case by proving the default relied upon and the amount of his claim (35 Cyc. 1640, and cases cited), and that the defendant may show certain facts in mitigation of damages (Second Nat. Bank v. Gilbert, 174 Ill. 485, 66 Am. St. Rep. 306, 51 N. E. 584; notes in 30 Am. Dec. 487, and 72 Am. St. Rep. 160). In Hall v. Brooks, 8 Vt. 485, 30 Am. Dec. 485, this court, holding that, where an officer had final process put into his hands, which he refused or neglected to receive (serve), he thereby made the debt his own, and was liable in damages to the full amount of the debt, said: "In actions for escape on

It is held in some jurisdictions

der v. Barker, 18 Vt. 454, that in case of neglect to return an execution the officer was liable for nominal damages, "and for so much more as have been suffered;" although in the latter case the court remarked that they did not see that the case was fairly comparable to Hall v. Brooks.

The result is that the replication is not sufficient to avoid the plea of the statute of limitations, and defendant's demurrer was properly sustained.

Judgment affirmed, and cause remanded.

ALABAMA SUPREME COURT.

FANNIE TUCKER, Appt.,

leged to have been sustained while a patient | fendant exercised reasonable care with re in the defendant hospital. Reversed. gard to the competency of said nurse. Messrs. Gregory L. Smith, H. T. Smith,

The facts are stated in the opinion. Counts 1 and pleas 2 and 3 mentioned in and William G. Caffey, for appellant: the opinion are as follows:

A charitable corporation is liable in damages for breach of an express contract resulting in personal injury to a patient. Ward v. St. Vincent's Hospital, 39 App.

Rep. 164; Armstrong v. Wesley Hospital, 170 Ill. App. 81; Donaldson v. General Publie Hospital, 30 N. B. 279; Hewett v. Woman's Hospital Aid Asso. 73 N. H. 556, 7 L.R.A. (N.S.) 496, 64 Atl. 190, 20 Am. Neg. Rep. 621; Basabo v. Salvation Army, 35 R. I. 22, 42 L.R.A. (N.S.) 1144, 85 Atl. 120; 24 Am. & Eng. Enc. Law, 370.

of conducting an infirmary for the treatment | Div. 624, 57 N. Y. Supp. 784, 6 Am. Neg. of patients requiring operations and other medical treatment, and, for a reasonable compensation, defendant undertook and promised to properly nurse and care for plaintiff, preparatory to and during a surgical operation which she then required, and thereafter unail she had sufficiently recovered to leave the institution, and that while plaintiff was So in said infirmary for such treatment, and after she had been operated on for some trouble of the internal organs, plaintiff was badly scalded with boiling water both internally and externally, by reason of the negligence of one of the nurses employed by defendant in the care of plaintiff, and while said nurse was engaged in and about the duties of her employment.

The second count was similar to the first, but amended "by reason of the said defendant's negligently intrusting the care of plaintiff while she was under an anesthetic to an incompetent nurse."

The following are the pleas in the case: (2) To each count of the complaint defendant says that, at the time when plaintiff claims to have been injured in the manner alleged in her complaint, defendant was an institution operated exclusively for charity, and that due care was exercised by defendant in the selection and retention of the service of the nurse referred to in the complaint. (3) At the time when plaintiff alleges that she suffered the injuries described in her complaint, defendant was engaged in the business of conducting a charitable hospital; that the ministrations of said hospital were not confined exclusively to the indigent, but pay was required and received from such patients as were able to pay for the services, attentions, and accommodations furnished them; that defendant corporation has issued no stock and has no stockholders; that it is not operated for profit, and never has been; that as moneys are earned by defendant they are and will be applied exclusively to the operations of its hospital, payment of its debts, and the extension of its work as a charity institution; that defendant exercised due care in the selection and retention of the nurse referred to in said complaint, and, if said nurse was incompetent, such fact was not known to defendant, and defendant had no notice thereof, although de

A charitable corporation is liable in damages for injuries to employees or third persons caused by the negligence of its servants, and the assets of such corporation may be applied to payment of such damages.

Basabo v. Salvation Army, 35 R. I. 22, 42 L.R.A. (N.S.) 1144, 85 Atl. 120; McInerny v. St. Luke's Hospital Asso. 122 Minn. 10, 46 L.R.A. (N.S.) 548, 141 N. W. 837; Thomas v. German General Benev. Soc. 168 Cal. 183, 141 Pac. 1186; Hewett v. Woman's Hospital Aid Asso. 73 N. H. 556, 7 L.R.A. (N.S.) 496, 64 Atl. 190, 20 Am. Neg. Rep. 621; Bruce v. Central M. E. Church, 147 Mich. 230, 10 L.R.A. (N.S.) 74, 110 N. W. 951, 11 Ann. Cas. 150; Kellogg v. Church Charity Foundation, 128 App. Div. 214, 112 N. Y. Supp. 566, 203 N. Y. 191, 38 L.R.A. (N.S.) 481, 96 N. E. 406, Ann. Cas. 1913A, 883, 3 N. C. C. A. 444; Hordern v. Salvation Army, 199 N. Y. 233, 32 L.R.A.(N.S.) 62, 139 Am. St. Rep. 889, 92 N. E. 626; Gartland v. New York Zoological Soc. 61 Misc. 643, 113 N. Y. Supp. 1087, 135 App. Div. 163, 120 N. Y. Supp. 24; Gallon v. House of Good Shepherd, 158 Mich. 361, 24 L.R.A. (N.S.) 286, 133 Am. St. Rep. 387, 122 N. W. 631; Holder v. Massachusetts Horticultural Soc. 211 Mass. 370, 97 N. E. 630; Armendarez v. Hotel Dieu, Tex. Civ. App. 145 S. W. 1030.

A charitable corporation is liable in a suit on an express contract between it and the patient for careful treatment, where a breach of that contract is shown by showing improper treatment.

Ward v. St. Vincent's Hospital, 39 App. Div. 624, 57 N. Y. Supp. 784, 6 Am. Neg. Rep. 164; Armstrong v. Wesley Hospital, 170 Ill. App. 81; Donaldson v. General Public Hospital, 30 N. B. 279; Hewett v. Woman's Hospital Aid Asso. 73 N. H. 556, 7 L.R.A. (N.S.) 496, 64 Atl. 190, 20 Am. Neg. Rep. 621; Basabo v. Salvation Army, 35 R. I. 22, 42 L.R.A. (N.S.) 1144, 85 Atl. 120; 24 Am. & Eng. Enc. Law, 370.

There is no universal rule exempting char

itable corporations or their assets from liability in damages.

Basabo v. Salvation Army, 35 R. I. 22, 42 L.R.A. (N.S.) 1144, 85 Atl. 120; Glavin v. Rhode Island Hospital, 12 R. I. 411, 34 Am. Rep. 675; Hewett v. Woman's Hospital Aid Asso. 73 N. H. 556, 7 L.R.A.(N.S.) 496, 64 Atl. 190, 20 Am. Neg. Rep. 621; McInerny v. St. Luke's Hospital Asso. 122 Minn. 10, 46 L.R.A. (N.S.) 548, 141 N. W. 837; Kellogg v. Church Charity Foundation, 128 App. Div. 214, 112 N. Y. Supp. 566; Bruce v. Central M. E. Church, 147 Mich. 230, 10 L.R.A. (N.S.) 74, 110 N. W. 951, 11 Ann. Cas. 150; Hordern v. Salvation Army, 199 N. Y. 233, 32 L.R.A. (N.S.) 62, 139 Am. St. Rep. 889, 92 N. E. 626; Armendarez v. Hotel Dieu, Tex. Civ. App., 145 S. W.

1030.

A charitable corporation is liable for its corporate negligence.

Kellogg v. Church Charity Foundation, 128 App. Div. 214, 112 N. Y. Supp. 566; McInerny v. St. Luke's Hospital Asso. 122 Minn. 10, 46 L.R.A. (N.S.) 548, 141 N. W. 837; Hewett v. Woman's Hospital Aid Asso. 73 N. H. 556, 7 L.R.A. (N.S.) 496, 64 Atl. 190, 20 Am. Neg. Rep. 621.

| engaged in the duties of said employment. There were two counts in the complaint. | The reporter will set out counts 1 and 2 and pleas 2 and 3 in his report of the case. Demurrers to these pleas were overruled and replications were filed. Plaintiff took nonsuit on account of adverse rulings on the pleadings and brings the case here for review.

We think the pleas to the two counts ordered to be set out will be sufficient to present the question raised by the record.

Each of the counts alleged that for a reasonable compensation the defendant undertook and promised to properly nurse and care for plaintiff preparatory to and during a surgical operation and thereafter until she had sufficiently recovered to leave the institution.

In the first count the injuries are alleged to have been the result of negligence of one of the nurses employed by the defendant in care of the plaintiff, and in the second count as a result of defendant's negligently intrusting the care of the plaintiff, while under an anesthetic, to an incompetent nurse.

It is insisted by counsel for appellant in brief that the complaint is one for damages

Messrs. C. J. Torrey and Webb & Mc- for the breach of a contract, citing Western Alpine, for appellee:

U. Teleg. Co. v. Littleton, 169 Ala. 99, 53 So. 97; McDaniel v. Johnston, 110 Ala. 526, 19 So. 35; Mott v. Jackson, 172 Ala. 448, 55 So. 528. In the case first eited, quoting from case of Wilkinson v. Moseley, 18 Ala. 288, it was said: "If the cause of action, as stated in the declaration, arises from a breach of promise, the action is ex contractu; but if the cause of action arises from a breach of duty growing out of the contract, it is in form ex delicto and case."

Charitable institutions are not liable for the negligent acts of their servants, if the institutions have exercised due care in the selection and retention of the servants. Downes v. Harper Hospital, 101 Mich. 555, 25 L.R.A. 602, 45 Am. St. Rep. 427, 60 N. W. 42; Duncan v. Nebraska Sanitarium & Benev. Asso. 92 Neb. 162, 41 L.R.A. (N.S.) 973, 137 N. W. 1120, Ann. Cas. 1913E, 1127; Thornton v. Franklin Square House, 200 Mass. 465, 22 L.R.A. (N.S.) 486, 86 N. E. 909; McDonald v. Massachusetts General Hospital, 120 Mass. 432, 21 Am. Rep. 529; Farrigan v. Pevear, 193 Mass. 147, 7 LR.A. (N.S.) 481, 118 Am. St. Rep. 484, 78 N. E. 855, 8 Ann. Cas. 1109; Hearns v. Waterbury Hospital, 66 Conn. 98, 31 L.R.A. 224, 33 Atl. 595; Powers v. Mas- In each count of the complaint as above sachusetts Homœopathic Hospital, 65 L.R.A. shown, the expressed promise and undertak372, note; Parks v. Northwestern Universi-ing for a reasonable compensation to propty, 218 Ill. 381, 2 L.R.A. (N.S.) 556, 75 N. E. 991, 4 Ann. Cas. 103; 7 Labatt, Mast. & S. § 2507, p. 7683.

The opinion in Western U. Teleg. Co. v. Littleton, 169 Ala. 99, 53 So. 97, also makes note of the fact that it has frequently been said that it is often difficult to determine whether a count is on the contract or in tort, and regret is expressed that such is the

case.

erly nurse and care for the plaintiff is alleged, and it is insisted therefore that the cause of action is shown to arise from the breach of this promise, and therefore that

Gardner, J., delivered the opinion of the the action is ex contractu. However, this

court:

Plaintiff (appellant here) brought this suit against the Mobile Infirmary Association for the recovery of damages alleged to have been sustained by being scalded with boiling water both internally and externally as a result of the negligence of one of the nurses employed by defendant in care of the plaintiff, and while such nurse was

we need not determine, as we do not deem it material, for the reasons which will hereafter be stated.

It is next insisted that, the action being ex contractu, the cases of Ward v. St. Vincent's Hospital, 39 App. Div. 624, 57 N. Y. Supp. 784, 6 Am. Neg. Rep. 164, and Armstrong v. Wesley Hospital, 170 Ill. App. 81, are authorities to support the cause of ac

tion as for the breach of an expressed con- | rule of stare decisis, and in accordance with tract resulting in injury to the patient. It what we deem to be the law. must be conceded, if the counts are so construed, that such seems to be the effect of these decisions.

Ann. Cas. 1109; Thornton v. Franklin Square House, 200 Mass. 465, 22 L.R.A. (N.S.) 486, 86 N. E. 909.

Among the early cases in this country deciding such charitable institution exempt from liability to the patient is that of MeFrom the view we take of the case, it Donald v. Massachusetts General Hospital, is also unnecessary that this be determined, 120 Mass. 432, 21 Am. Rep. 529; and it has as we are in accord with the following quo- been frequently cited and approved in subsetation from the case of Duncan v. St. Luke's quent cases in that jurisdiction. Farrigan Hospital, 113 App. Div. 68, 98 N. Y. Supp. v. Pevear, 193 Mass. 147, 7 L.R.A.(N.S.) 867; found recited in Duncan v. Nebraska | 481, 118 Am. St. Rep. 484, 78 N. E. 855, 8 Sanitarium & Benev. Asso. 92 Neb. 162, 41 L.R.A. (N.S.) 973, 137 N. W. 1120, Ann. Cas. 1913E, 1127: "Nor can we see any reason why there should be any difference in the rule where the tortious act which caused death is alleged to be a breach of an expressed contract than where it is alleged to be a breach of an implied contract, or where no contractual relation at all existed." We are therefore of the opinion that, in so far as this case is concerned, the rule of liability would be the same whether an expressed contract were alleged or merely one implied by law.

That the complaint upon its face, in ordinary cases, shows a right of action in the plaintiff against the defendant, is, as we view the pleadings, practically conceded. The defendant, as shown more fully by plea 3, seeks exemption from liability because of the fact that it was engaged in the business of conducting a charitable hospital, that the corporation issued no stock, has no stockholders, is not operated for profit, and that, while its ministrations were not confined exclusively to the indigent, and pay was required and received from such patients as were able to pay for the service, yet the moneys earned by the corporation were applied exclusively in the operation of its hospital, payment of its debts, and the extension of its work as a charitable institution; and it is then averred that the defendant exercised due care in the selection and retention of the nurse referred to in the complaint. In short, the defense is that, having exercised due care in the selection and retention of the nurse, the defendant is exempt from all liability to the plaintiff, because of the fact that it is an institution organized, not for profit, but for charitable purposes.

The question presented is one of much interest, and a subject upon which much appears to have been written in recent years. It must be conceded at the outset that the great weight of authority in this country, certainly from a numerical standpoint, lies with the defendant in this case. It appears however, to be conceded by counsel, and we have found nothing to the contrary, that the question is an open one in this state, leaving us free to act without any constraint of the

The above case of McDonald v. Massachusetts General Hospital has been also frequently cited and followed in other jurisdictions, and we therefore think it important, at the outset, to call attention to what seems to be the only authority relied upon in that opinion upon the question here under consideration, that of the English court in the case of Holliday v. St. Leonard, 11 C. B. N. S. 192, 30 L. J. C. P. N. S. 361, 8 Jur. N. S. 79, 4 L. T. N. S. 406, 9 Week. Rep. 694, decided by the court of common bench in 1861.

It is clear, however, that in the subsequent case of Mersey Docks v. Gibbs, L. R. 1 H. L. 93, 11 H. L. Cas. 686, 35 L. J. Exch. N. S. 225, 12 Jur. N. S. 571, 14 L. T. N. S. 677, 14 Week. Rep. 872, the principle of Holliday v. St. Leonard, supra, was not followed, but that in effect that authority was overruled. The principal opinion in the case of Mersey Docks v. Gibbs was written by Mr. Justice Blackburn, and he was also the writer of the opinion in the case of Foreman v. Canterbury, L. R. 6 Q. B. 214, wherein, speaking of the said case of Holliday v. St. Leonard, it is said in the opinion as follows: "Upon looking at the facts of that case it would appear that it would have been an authority directly in point for the present defendants if the case were still an authority at all; but, upon looking at the reasons of that decision, we consider it to be overruled by the decision of the House of Lords in the case of Mersey Docks v. Gibbs, supra. It is not overruled by name, but the principle upon which that case was decided in the House of Lords does overrule it."

It is therefore made clearly to appear that the English authority relied upon in the case of McDonald v. Massachusetts General Hospital, supra, had been in effect, and, so far as the principle announced therein is concerned, overruled in the case of Mersey Docks v. Gibbs, supra, and this is expressly so stated in the case of Foreman v. Canterbury, supra, by Justice Blackburn, who was also the author of the opinion in the Mersey Docks Case. This is significant to be here

noted because of the fact that the McDonald | ald Case was among the earliest in this Case seems to be among the early cases country dealing with this question. The treating the question in this country. It seems to have been largely followed by other jurisdictions. The McDonald Case was decided in 1876, and the decision in the Mersey Docks Case antedates the McDonald Case some several years, as well also, it appears, does the Foreman Case, supra. This does not seem to have been taken note of or called to the attention of the Massachusetts court in the McDonald Case.

As said by the supreme court of Rhode Island in the case of Glavin v. Rhode Island Hospital, 12 R. I. 411, 34 Am. Rep. 675: "The authority of McDonald v. Massachusetts General Hospital, in so far as it rests upon Holliday v. St. Leonard, is seriously impaired by these cases."

opinion states that the first case to which the attention of the court had been called was that of Richmond v. Long, 17 Gratt. 375, 94 Am. Dec. 461, decided in Virginia; but it is further shown that liability was denied in that case, on the ground that the management of the hospital was under governmental powers, under the laws of Virginia, and that in fact the government was the principal or master. Such a case as the Virginia case is of the same character as that decided by our own court in the case of White v. Alabama Insane Hospital, 138 Ala. 479, 35 So. 454, where the corporation was held to be only an arm or agency of the state; and cases of this character, therefore, are without application to the question we have at hand. Some of the decisions make note of the point that many of the cases could have been decided upon this doctrine. It is therefore clear that the McDonald Case is among the

which is directly in point.

That the McDonald Case was rested upon the English authority which had been overruled is noted in a very recent English case (Hillyer v. St. Bartholomew's Hospital [1909] 2 K. B. 820), wherein Kennedy, L. J., uses this language: "With the Ameri-earliest, if not the first, in this country can and New Zealand cases which were cited to us by the learned counsel on both sides While it must be conceded that the great I do not think it necessary to deal. They weight of authority in this country is in are not in agreement; in one of them, Mc-| favor of exemption to an institution engaged Donald v. Massachusetts General Hospital, in charitable work from liability for the relied upon by the defendants, the judgment torts of its servants or agents, yet there is appears to have been influenced by an Eng- some contrariety of opinion as to the prinlish decision of Holliday v. St. Leonard, ciples upon which this result is rested, and supra, which has been overruled by the varied reasons are given not at all consistHouse of Lords in Mersey Docks v. Gibbs.ent one with the other. For the purposes See per Blackburn, J., in Foreman v. Can- of this case these authorities may be terbury."

grouped into three classes. One line of decisions would rest exemption from liability upon what might be termed "the trust fund theory," that is, that all funds of such in

The importance of directing attention to this situation at this time is further emphasized when we note the fact that the McDonald Case has been considered a lead-stitutions are held in trust for the paring case, if indeed not the pioneer case, ticular charitable purpose, and that it is a upon this particular question in this coun- breach of trust to apply them to any other try, and been followed, cited, and quoted purpose, and that the payment of damages from in many subsequent decisions. It is due to the negligence of the servants of the said to be a leading case in the note to 6 institution is not a purpose contemplated Cyc. 975; and in Taylor v. Protestant Hos-by the trust, and that therefore their funds pital Asso. 85 Ohio St. 90, 39 L.R.A.(N.S.) | cannot be diverted to the payment thereof. 427, 96 N. E. 1089, 1 N. C. C. A. 438, quot- Other authorities rest their conclusion, it ing from another, it is said: "The doctrine seems, upon the theory that the rule of of the Massachusetts cases may be said to respondeat superior does not apply to such be the law followed by other states." institutions, for the reason that the servants in the exercise of their duties are not engaged in the work which is for the benefit or profit of the master, and that such is essential to call for the application of this rule. Still other authorities base their conclusion upon what might be termed an "implied assent theory;" that is, that one who accepts the benefit of charity must be taken impliedly to have assumed the risk of negIt is further indicated in the opinion of ligent injuries caused to him by servants Hearns v. Waterbury Hospital, 66 Conn. 98, who have been properly employed or re31 L.R.A. 224, 33 Atl. 595, that the McDon-tained in his service, or to have waived

The McDonald Case is cited and commented upon in Glavin v. Rhode Island Hospital, supra, and in the concurring opinion of Justice Potter we find the following remark: "The arguments of counsel have been very able, but their researches have only discovered one case nearly in point, McDonald v. Massachusetts General Hospital, supra."