fiability of a charitable institution for in-, strate clearly that what we here term the juries so received.

We will briefly note these three theories, taking them up in the order just named. A detail treatment, however, of each of the authorities relied upon, would cause this opinion to be of undue length, and we will content ourselves with as brief a review as is practicable, citing some of the authorities whereby the reader, if interested, may pursue a thorough research.

"trust fund theory" finds no support in the English jurisprudence of this time. As said in the Powers Case, supra: "Whatever may be the limit of the liability of a political or municipal body in Great Britain for the torts of its servants, that limit is now in no way determined by any doctrine concerning the application of a trust fund.”

In the recent case of Basabo v. Salvation Army, 35 R. I. 22, 42 L.R.A. (N.S.) 1144, The "trust fund theory," as we have 85 Atl. 120, may be found a careful review above termed it, rests, as previously stated, of the authorities upon this question, and upon the reasoning that, as the funds are a classification of them. The opinion points held in trust for a particular charitable out many of the cases holding to the "trust purpose, it is a breach of that trust to ap- fund theory" to such an extent as would ply them to any other purpose, and there- create absolute immunity, and then other fore the payment of damages occasioned by cases which, while apparently holding to the torts of the servants or agents of such the same trust fund theory, limit this exinstitution would result in a diversion of emption to cases where there was no neglisuch trust funds. Followed to its logical gence in the selection or retention of the conclusion, this theory would result in abso- servants. It is unnecessary that we here lute immunity from damages of any char- cite these cases, as they are set out in the acter being recovered against such insti- Basabo Case, to which we are now referring. tution, which would exempt them from In speaking of these two classes of cases liability of the servant to the patient and the opinion says: "We think these latter to a third person, and indeed it would seem cases must be regarded as entirely inconto also exempt them from damages from the sistent with the general proposition of the breach of an expressed contract. The doc- exemption of charitable corporations on trine, we think, it clearly appears, can find grounds of public policy set forth in the no support in the English authorities. In previous cases, as was said in reference to the case of Mersey Docks v. Gibbs, supra, many of these cases by Gaynor, J., in Kelthe corporation acted as a trustee for, and logg v. Church Charity Foundation, 128 collected tolls for the use of, the docks, App. Div. 214, at page 217, 112 N. Y. Supp. acted without reward to itself, and the tolls 566: 'In many, if not most, of the cases, a or receipts were not applicable to the use of ground for the nonliability for the torts of the corporation, but were devoted to the agents or servants of charitable institumaintenance of the works, and in case of tions is that to pay damages for such torts any surplus the toll rate was to be propor- would be a diversion of their funds from the tionately diminished. Here was a trust trust purposes for which they are donated service for the public benefit, without re- by the charitable, and thus a contravention ward and without expectation of profit on of the trust, and that as such institutions the part of those performing the service. have no other funds it would be futile to In the opinion Mr. Justice Blackburn says: allow judgments to be taken against them "Now, it is obvious that a shipowner who in such cases. But the opinions of the pays dock rates for the use of the dock, or judges in these same cases almost invarithe owner of goods who pays warehouse ably except cases where the agent or servant rates for the use of a warehouse and the was incompetent, and there was negligence services of the warehousemen, is, as far as in his selection; failing to take note that it he is concerned, exactly in the same posi- would be as much a diversion of the trust tion however the rates may be appropriated. funds to pay damages for the tort of negliHe pays the rates for the dock accommoda-gence in selection as for any other tort. tion, or for warehouse accommodation and If the rule exists, it must necessarily apservices, and he is entitled to expect that ply to all torts and in all cases. The only reasonable care should be taken that he support for the argument that it does exist shall not be exposed to danger in using the is found in the remarks of judges in certain accommodation for which he has paid." rather old English cases, which were reIn the cases of Powers v. Massachusetts pudiated in later cases, and never had a Homœopathic Hospital, 65 L.R.A. 372, 47 direct application to actions of tort against C. C. A. 122, 109 Fed. 294, and Bruce v. Cen- charitable corporations such as are now comtral M. E. Church, 147 Mich. 230, 10 L.R.A. mon. It is true that an action does not lie (N.S.) 74, 110 N. W. 951, 11 Ann. Cas. 150, against a trustee under a will, or the like, the English authorities upon this question as such, for his torts or those of his servare given some review, and we think demon-ants in the affairs or administration of a

trust. He has to be sued individually; but | that effect can be given to that will when the reason is purely technical, and the it relates to property devised or conveyed courts allow the judgment against him in- for the purpose of a charitable trust. Such dividually for damages to be paid out of the a holding must rest upon the argument that trust funds, if he was free from wilful mis- the advantages reaped by the public from conduct in the tort. No rule, therefore, such trusts justify the exemption; that is, that trust funds may not be used to pay as applied to this case, the advantages to damages for torts in the administration of the public justify defendant's exemption the trust, exists, even in the case of ordi- from liability for wrongs done to individnary express trusts, let alone in the gen- uals. If this argument is sound-and its eral trusts of charitable corporations. Pow- soundness may be questioned, for there are ers v. Massachusetts Homœopathic Hospital those who will deny that the advantages to and Bruce v. Central M. E. Church, supra; the public justify the wrong to the individHewett v. Woman's Hospital Aid Asso. 73 ual-it should be addressed to the legislaN. H. 556, 7 L.R.A. (N.S.) 496, 64 Atl. 190, tive, and not to the judicial, department of 20 Am. Neg. Rep. 621. These views the government. It is our duty as judges were approved by the court of appeals of to apply the law. We have no authority to New York (although the decision was re- create exemptions or to declare immunity." versed on other grounds) in Kellogg v. Discussing the same doctrine, the supreme Church Charity Foundation, 203 N. Y. 191, court of New Hampshire in the case of 194, 38 L.R.A. (N.S.) 481, 96 N. E. 406, Hewett v. Woman's Hospital Aid Asso. 73 Ann. Cas. 1913A, 883, 3 N. C. C. A. 444." N. H. 556, 7 L.R.A. (N.S.) 496, 64 Atl. 190, 20 Am. Neg. Rep. 621, has this to say: "It would seem to be entirely unnecessary to discuss a proposition so barren of arguments in its favor. That a charitable institution has certain duties to perform towards those with whom it is associated, which it cannot violate with impunity, in the absence of some express exemption of a legislative character, is not debatable. The sanctity of its general trust fund or property does not make that result necessary or, on grounds of public policy, desirable. The liability of charitable corporations in actions of tort is frequently enforced,”—citing authorities.

We are of the opinion that the doctrine of the absolute exemption of charitable corporations is very much weakened by the position taken by the courts in these later citations, and is practically repudiated by them, whatever general remarks the courts may have made in regard thereto, when the same are submitted to a careful and logical consideration.

The case of Downes v. Harper Hospital, 101 Mich. 555, 25 L.R.A. 602, 45 Am. St. Rep. 427, 60 N. W. 42, has been frequently cited by other courts in support of this trust fund theory, and it is difficult for one giving this case a careful reading and noting the authorities relied upon in the opinion, to reach any other conclusion than that in fact the case was decided upon that theory. As an illustration of this may be noted the case of Gable v. Sisters of St. Francis, 227 Pa. 254, 136 Am. St. Rep. 879, 75 Atl. 1087, 2 N. C. C. A. 381, where the court lays much stress upon the treatment of this theory in the Downes Case. Yet this doctrine is expressly repudiated by the Michigan supreme court in the recent case of Bruce v. Central M. E. Church, supra, in a very able opinion, and in which it was attempted to show that the real theory of the Downes Case rested upon an implied assent. In the opinion it is said: "It is equally true that the proposition that trust funds cannot be used to compensate wrongs committed by the agent of the trustee is not a correct statement of the law." "The doctrine that the will of an individual shall exempt either persons or property from the operation of general laws is inconsistent with the fundamental idea of government. It permits the will of the subject to nullify the will of the people. Nor can I conceive any ground upon which a court can hold

In Kellogg v. Church Charity Foundation, 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, the supreme court of New York says: "It must now be regarded as settled that a charitable corporation is not exempt from liability for the tort against a stranger, because of the fact that it holds its property in trust to be applied to purposes of charity."

And also in the case of Hordern v. Salvation Army, 199 N. Y. 233, 32 L.R.A. (N.S.) 62, 139 Am. St. Rep. 889, 92 N. E. 626, that court, speaking of the same subject, said: "Certainly liability for negligence in the selection of servants may impair the integrity of the trust estate just the same as liability for the negligence of servants, though, of course, not so frequently."

Concerning this theory, Mr. Labatt, in vol. 7, § 2506, p. 7685, of his work on Master and Servant, says: "This doctrine, however, has been repudiated in some of the cases. The difficulty with the impairment of the trust fund theory is that, to apply it consistently, it would exempt charitable in

And, also, it is clearly demonstrated that the rule of respondeat superior is not dependent upon whether the master makes profit by the discharge of the duties, in the following quotation from the case of Gilbert v. Trinity House, L. R. 17 Q. B. "The law is plain that whoso

stitutions from all liability for negligence "Upon the principle that qui facit per alium whatsoever; whereas, even in cases uphold-facit per se, the master is responsible for ing this theory, some exceptions are made. the acts of his servant; and that person is It is generally assumed that such institu- undoubtedly liable who stood in the relation tions would be responsible, for example, for of master to the wrongdoer, he who had senegligence in the selection of their servants; lected him as his servant from the knowlbut, if nonliability is based on the doctrine edge of or belief in his skill and care, and that the trust fund must not be impaired, who could remove him for misconduct, and why should there be any distinction in this whose orders he was bound to receive and respect between negligence in the selection obey." of servants and negligence of servants chosen with due care? In either case, if judgment is to be paid out of the trust fund, it is bound to be impaired. The same reasoning would apply to negligence in the care of the buildings, resulting in injury to a patient or to a third person, and negligence, | Div. 795: say, of an ambulance driver, causing injury | ever undertakes the performance of, or is to a third person, and to negligence as to bound to perform, duties,—whether they are all of those duties which are cast upon mas- duties imposed by reason of the possession ters by law, and which cannot be delegated." of property, or by the assumption of an ofWhat we have here said, and the authori- fice, or however they may arise,—is liable ties which we have cited, we think, are all for injuries caused by his negligent dissufficient to show that the trust fund theory charge of those duties. It matters not is no solid foundation upon which to rest, whether he makes money or a profit by and is repudiated in the modern well-con- means of discharging the duties, or whether sidered cases, and even in some of the states it be a corporation or an individual who has (as in the Downes Case, supra) where it is undertaken to discharge them. It is also supposed to have once been applied. immaterial whether the person is guilty of negligence by himself or by his servants, if he elects to perform the duties by his servants. If in the nature of things he is obliged to perform the duties by employing servants, he is responsible for their acts in the same way that he is responsible for his own."

In the case of Hordern v. Salvation Army, the opinion, written by Chief Justice Cullen, cites and gives some brief review of the Massachusetts cases upon this subject. He points out that in the early case of McDonald v. Massachusetts General Hospital, 120 Mass. 432, 21 Am. Rep. 529, the plaintiff was a gratuitous patient, but a reading of the opinion in that case clearly demonstrates the conclusion was not affected by that fact. We think the brief review of the Massachusetts cases found in the Hordern Case clearly demonstrates that their decisions cannot be harmonized upon the trust fund theory, and in the opinion it is stated: "Whether since this last decision Massa- | chusetts is to be placed in the class of states adhering to the doctrine of total immunity may well be doubted." See also recent case of Hospital of St. Vincent of Paul v. Thompson, 116 Va. 101, 51 L.R.A. (N.S.) 1025, 81 S. E. 13, where several authorities are reviewed.

The second theory relied upon in some of the cases, that the rule of respondeat superior does not apply against such institutions for the reason that the servant or agent in the exercise of his duties is not acting for the benefit or profit of the master, needs, we think, but brief consideration. The rule of respondeat superior was given application in the case of Mersey Docks v. Gibbs, L. R. 1 H. L. 93, and the true principle concerning this rule was stated in the following quotation found in this case:

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The case of Hearns v. Waterbury Hospital, 66 Conn. 98, 31 L.R.A. 224, 33 Atl. 595, seems to rest largely upon the theory that the rule of respondeat superior does not apply. Many of the English cases are reviewed as well as others, but the opinion is far from convincing.

Speaking of this case, it was said by the writer of the opinion in Bruce v. Central M. E. Church: "I think one cannot carefully read the elaborate opinion in the Hearns Case and examine the authorities therein cited (see particularly Foreman v.. Canterbury, L. R. 6 Q. B. 214, 40 L. J. Q. B. N. S. 138, 24 L. T. N. S. 385, 19 Week Rep. 719; Gilbert v. Trinity House, L. R. 17 Q. B. Div. 795, 56 L. J. Q. B. N. S. 85, 35 Week. Rep. 30; Levingston v. Lurgan Union, Ir. L. R. 2 C. L. 202, 18 L. T. N. S. 338; and Mersey Docks v. Gibbs, supra) without reaching the conclusion that the doctrine of respondeat superior does apply, though the business is not carried on for the purpose of profit. I conclude from this reasoning that corporations administering a charitable trust, like all other corporations, are subject to the general laws of the land, and cannot therefore claim exemp

servant does not exist between the hospital and the physicians and surgeons, and even, in some instances, nurses. See Schloendorff v. Society of New York Hospital, 211 N. Y. 125, 52 L.R.A. (N.S.) 505, 105 N. E. 92.

abled to deal with suffering on a large scale. If, in their dealings with their property appropriated to charity, they create a nuisance by themselves or by their servants, if they dig pitfalls in their grounds and the like, there are strong reasons for holding them liable to outsiders, like any other individual or corporation. The purity of their aims may not justify their torts; but, if a suffering man avails himself of their charity, he takes the risks of malpractice, if their charitable agents have been carefully selected."

In the case of Bruce v. Central M. E. Church, it appears from the opinion that a charitable institution cannot claim exemption from responsibility, unless that claim is based on a contract with the person injured by such a tort. Speaking of the Downes Case and others of similar character, the opinion says: "They rest upon the principle correctly stated in Powers v. Mas

372, 47 C. C. A. 122, 109 Fed. 294, viz., that the beneficiary of such charitable trust enters into a contract whereby he assumes the risk of such torts. It is not surprising that years should have elapsed before the correct legal principle governing these cases was announced in Powers v. Massachusetts Homœopathic Hospital."

Some of the cases applying this theory of the implied assent seem to rest largely upon what was said in the opinion by Lowell, District Judge, in the case of Powers v. Massachusetts Homeopathic Hospital, supra. In that case, although the language may be said to be very broad, it should be noted that, although the patient in the hospital was what was termed a "paying patient," yet the opinion shows that the sum paid was, in the opinion of the writer, of "insignificant proportion" to the cost of the services rendered. If this is true, then it should be borne in mind that, while the patient was what was termed a "paying patient," yet she did not pay or offer to pay reasonable compensation for the services rendered, and clearly that in propor-sachusetts Homeopathic Hospital, 65 L.R.A. tion as the sum paid was insignificant for the services rendered, then it must follow just to that proportion the patient was not a "paying patient," but in truth and in fact a charity patient. As the opinion seems to form a base or foundation for the conclusion of the court in other cases, we think it important that these facts be made prominent and given emphasis. In the opinion it is said: "That a man is sometimes deemed to assume a risk of negligence, so that he cannot sue for damages caused by the negligence, is familiar law. Such is the case at bar. One who accepts the benefit either of a public or a private charity enters into a relation which exempts his benefactor from liability for the negligence of his servants in administering the charity; at any rate, if the benefactor has used due care in selecting those servants. To paraphrase the illustration put by the learned judge before whom this case was tried, it would be intolerable that a good Samaritan, who takes to his home a wounded stranger for surgical care, should be held personally liable for the negligence of his servant in caring for that stranger. Were the heart and means of that Samaritan so large that he was able, not only to provide for one wounded man, but to establish a hospital for the care of a thousand, it would be no less intolerable that he should be held personally liable for the negligence of his servant in caring for any one of those thousand wounded men. We cannot perceive that the position of the defendant differs from the case supposed. The persons whose money has established this hospital are good Samaritans, perhaps giv-decision. ing less of personal devotion than did he, but, by combining their liberality, thus en

Speaking to this same subject, the supreme court of California in Thomas v. German General Benev. Soc. 168 Cal. 183, 141 Pac. 1186, has this to say: "A final contention of appellant is that it is in no way responsible, by reason of the fact that it is a charitable institution, and that an action against it such as this will not lie. Such was the doctrine of some of the earlier cases. We need not enter into an elaborate discussion of the question. All of the authorities pro and con have been elaborately collated and learnedly reviewed in Basabo v. Salvation Army, 35 R. I. 22, 42 L.R.A. (N.S.) 1144, 85 Atl. 120. With the conclusion there reached we are in accord. That conclusion is that the true doctrine amounts to this: That where one accepts the benefit of a public or of a private charity, he exempts by implied contract the benefactor from liability for the negligence of the servants in administering the charity, if the benefactor has used due care in the selection of those servants."

The opinion in the Powers Case, supra, clearly shows that it proceeded upon the theory that one who accepts charity either wholly or partially, as it were, assumes the risk of negligence, and this we take it must be held to be the underlying principle of the

If it be conceded (without deciding, as unnecessary at this time) that the principle