is logical and well founded, we are of the opinion that it could not be given application in this case as presented by this record. The complaint alleges that the plaintiff agreed to pay a reasonable compensation; that is, such sum as is reasonable to be paid for the services rendered. She has depended upon no charity, she sought none, but was to pay a reasonable price for what she received. Had she been a dependent upon another's bounty, either to a great or small degree, there might be some plausibility in the argument that it would not lie in her mouth to say that the institution should be held to strict accountability for the negligent acts of its servants in administering the charity which she herself has sought. We are unable to conceive upon what principle the theory of "implied assent" could be applied to one who pays full price and without regard to the nature of the institution from which she receives her service. There can be no valid reason why such a patient, dealing as she does at arm's length with the hospital, should not stand in as favorable position as the stranger, and yet many of the cases grant relief to the latter and deny it to the former.

The principle, if held to be sound, must rest upon the fact that it is the giving and receiving of charity that creates the exemption, and not the nature of the institution administering it.

We make it clear we pretermit the question as to liability for injury to one who in fact accepts charity in an institution of this character, as we have not that case before us. It has been questioned that the implied assent theory would be applicable to even such a case, in the dissenting opinion of Justice Fraser in Lindler v. Columbia Hospital, 98 S. C. 25, 81 S. E. 512, wherein, speaking to that question and of some of the cases so holding, he says: "We are told, in effect, that a patient entirely unskilled in legal principles, his body racked with pain, his mind distorted with fever, is held to know, by intuition, the principle of law that the courts after years of travail have at last produced. We cannot accept a rule based upon after-discovered reasons. We confess that it is a new doctrine to us that a court will assume an implied contract to relieve against liability for future negligence."

By quoting the above we do not indicate any approval thereof nor otherwise, but merely make note of the same to show that even in such instances the theory has been questioned. We pass that question by until it arises. "Sufficient unto the day is the evil thereof."

We are aware of the fact that the opinion in the case of Duncan v. Nebraska Sani

tarium & Benev. Asso. 92 Neb. 162, 41 L.R.A. (N.S.) 973, 137 N. W. 1120, Ann. Cas. 1913E, 1127, would seem to indicate an extension of the principle of the "implied assent theory" to those who were not in fact in any sense recipients of charity, but who paid full compensation for the services rendered. The opinion says, however, that full compensation was not paid in that case, but a reduced rate was paid and accepted. If this were the case, it may be that the decision might be brought within the Powers Case, supra, where in fact charity in part was received by the patient, and, if so, some of the language used may be declared dictum; but whether so or not we are unable to see the force of the reasoning and cannot follow it. Speaking of cases of this character, Justice Fraser, in the above dissenting opinion, says: "Some of the cases hold that the pay patients, when they enter a hospital with a charitable foundation, are really charity patients, and the weekly sums they are required to pay are not payments at all, but contributions to the charity fund. This is brilliant, but is not convincing. We think the first duty of every man and the first call upon every fund is to repair the evil of its own doing, and then the remaining fund or remaining strength may be devoted to charity."

It is a principle of law, as well as morals, that men must be just before they are generous. It is a well-known fact, of which courts may take judicial notice, that many of the most noted institutions of this country for the treatment of the sick were established by endowments, are not operated for profit, accept charity patients, and are such as come within the definition of charitable institutions laid down in the books. We are unable to see upon what line of reasoning one who is willing to pay, and does pay, full price for services to be rendered, should be held to have exempted the institution from all liability merely because it is not operated for profit.

With that the patient is not concerned, nor indeed is he in any mood or condition to inquire. He is seeking restoration to health. He expects to pay the full price, and can it be said with any show of reason that, because forsooth the money which he pays is not to be paid out as dividends or profits, he lays himself liable to injury by the negligence of those in whose charge he places himself, or even it may be-and the doctrine followed to its ultimate conclusion would logically so lead-to the wilful or wanton wrongful conduct of the servants in charge of the institution. We think not, clearly. The conclusion we have reached is supported in principle by the case of Glavin v. Rhode Island Hospital, 12 R. I. 411, 34

writer may be accepted as correct; but in this particular instance, upon this interesting subject, the different views are so divergent and so inconsistent that in our minds the weight of authority has lost its force, and we are rather impressed by a reading of the decisions that the courts holding to the majority view have been rather straining at legal principles in order to reach what they seem to think a desirable and just result. With the result the court cannot feel concerned. It is not for this court to create exemptions or declare immunity from liability in a case of this character as shown by this record, and, if considered to be so violently opposed to the public good, it is a matter that may be addressed to the legislative department. Some of the authorities express a doubt that the advantages to the public would justify a wrong to an individual, thus placing the institution above the law, as it were. But, however this may be viewed, we think the following observation made by Justice Potter in the Glavin Case, 12 R. I. 411, 34 Am. Rep. 675, is most pertinent here: "Is it not better and safer for the court to follow out the analogies of the law, and then, if the legislature is of opinion that public policy demands a limitation of this liability, it is in its power to interfere and grant an entire or partial exemption."

It is ours to declare the law as we see it, and, being unable to find a sound legal principle upon which exemption from liability may rest in a case disclosed by this record, we conclude that pleas 2 and 3, merely in this respect setting up due care in selection and retention in service of the nurse, do not show a defense to the cause of action, and the demurrer thereto should have been sustained. The judgment of the court below is reversed, and the cause is remanded to be proceeded with in accordance with the views expressed in this opinion.

Anderson, Ch. J., and McClellan, Sayre, Somerville, and Thomas, JJ.,

concur.

Mayfield, J., dissents.

Mayfield, J., dissenting:

If the law is as it is here decided to be, is it not strange that no text-book writer in England or America has ever been able to learn it? It does seem that such judges and text-book writers as Cooley, Kent, Story, Parsons, Shaw, Gibson, Beasley, Bush, Morawetz, Jaggard, and others of equal note, would have found it out, and not have misled the world-litigants and world-courts for a century or more. Is it possible that one decision of one court of the smallest state in

the Union contains more wisdom than all other courts, and all text writers on the subject? There is no decision of any American court, nor opinion of any judge, nor mention by any text-book writer, in accord with the decision of this case, that does not base the opinion on the Rhode Island case cited in this opinion. It has been criticized scores, if not hundreds, of times, where it has been approved or followed once. One of the greatest courts in the United States, viz., that of Pennsylvania, has spoken as follows: "I will not consume time by discussing the case of Glavin v. Rhode Island Hospital, 12 R. I. 411, 34 Am. Rep. 645, which to some extent sustains the opposite view of this question. There a hospital patient paying $8 per week for his board and medical attendance was allowed to recover a verdict against the hospital for unskilful treatment, and it was held that the general trust funds of a charitable corporation are liable to satisfy a judgment in tort recovered against it for the negligence of its officers or agents. It is at least doubtful whether, under its facts, the case applies; and, if it does, we would not be disposed to follow it in the face of the overwhelming weight of authority the other way, and of the sound reasoning by which it is supported." Fire Ins. Patrol v. Boyd, 120 Pa. 650, 1 L.R.A. 422, 6 Am. St. Rep. 754, 15 Atl. 558.

If the decision of this case is to stand as the law of this state, it cries loudly for the legislature of Alabama to do what the legislature of Rhode Island did,-put the law of that state in line with that of all the other states by a statute. I ask the question: Should we follow the court of Rhode Island, when the decision of that court was deemed so bad by the people that they rid themselves of it by an express statute?

Judge Paxson, of the Pennsylvania court, speaking for the whole court, well expressed the law, according to my view, on the subject of respondeat superior, and I adopt his words: "That doctrine is, at best, as I once before observed, a hard rule. I trust and believe it will never be extended to the sweeping away of public charities,-to the misapplication of funds specially contributed for a public charitable purpose to objects not contemplated by the donors. I think it may be safely assumed that private trustees, having the control of money contributed for a specific charity, could not, in case of a tort committed by one of their members, apply the funds in their hands to the payment of a judgment recovered therefor. A public charity, whether incorporated or not, is but a trustee, and is bound to apply its funds in furtherance of the charity, and not otherwise. This doctrine is hoary with antiquity, and prevails alike in this country and in

charitable corporation, engage in a private business or undertaking for profit, then quoad hoc it is liable just as is an individual or a private corporation. It may be that, even when liable, the state or the United States cannot be sued unless authorized by an express statute, yet they are nevertheless liable, and if suit could be brought judgment might be obtained.

It is stated in the majority opinion that the question here decided is new to this court. In this conclusion I cannot fully agree. In one sense, it is new; but in others it is hoary with age, and has been decided scores of times, and always contrary to the decision in this case. The case of White v. Alabama Insane Hospital, 138 Ala. 479, 35 So. 454; Leavell v. Western Kentucky Asylum, 122 Ky. 213, 4 L.R.A. (N.S.) 269, 91 S. W. 671, 12 Ann. Cas. 827, is a recent concrete case. It is true that the opinion in that case based the nonliability on the ground that the defendant was a state institution; but, as I have shown, purely charitable corporations are in the same category as state institutions, and are exempt from liability for the same reason, that it is against public policy that the public should suffer on account of the negligence of those .dministering the charity or serving the public. Is it the public policy of this state that property granted or donated to the public for charitable purposes should be diverted from this benevolent and public use to a few individuals who may be injured in person, feelings, or estate, by the negligence of agents or servants who are administering the charity?

If the body or corporation is private in character, and is not serving the public, but only those it chooses, and is so serving them for profit, then, of course, it is not a public or a charitable institution, and the rule we are discussing has no application, though it be a hospital, a reform school, or other benevolent agency. If, however, the body or agency is serving the public, doing the work of the Sovereign, not for gain, but purely for charity, then it is no more liable for the torts of its agents or servants than the state or the United States are liable for the torts of an agent or servant. Such charitable bodies or corporations, when created by the Sovereign for this purpose, and so authorized to do this duty of the Sovereign, are only liable in those cases in which the Sovereign is liable. Corporations created solely for purely charitable purposes, which can do nothing except the work of the Sovereign in ministering charity to the subjects, are not, and ought not to be, liable for the neg. ligence of its servants or agents, if the Sovereign itself would not be liable. This principle has been often stated and decided by

this court. In the case of State v. Hill, 54 Ala. 67, it is said: "It is plain,' says Justice Story, 'that the government itself is not responsible for the misfeasances or wrongs or negligences or omissions of duty of the subordinate officers or agents employed in the public service; for it does not undertake to guarantee to any persons the fidelity of any of the officers or agents whom it employs, since that would involve it, in all its operations, in endless embarrassments and difficulties and losses, which would be subversive of the public interests; and, indeed, laches are never imputable to the government.' Story, Agency, § 319. For yet another reason, this must be true. Although the individuals who have the administration of public affairs may commit very gross outrages, it is not congruous with the ideas of order and duty that the state, the august Sovereign body whose servants they are, from which proceed all civil laws, and to which we owe unstinted respect and honor, should be held capable of doing wrongs for which she should be made answerable as for tortious injuries, in her own courts to her own children or subjects."

In the case of Dargan v. Mobile, 31 Ala. 469, 70 Am. Dec. 505, the distinction I am now trying to make was well made, as follows: "The question of this case is whether a municipal or public corporation is liable in damages for an injury resulting from the careless or negligent official conduct of one of its officers, in whose selection there was no negligence, and whose employment was the lawful and necessary means of executing a governmental power vested in it for the public benefit, and whose acts are not done under the supervision of the corporation. This question we decide in the negative. Because the corporation is, as to the passage of the ordinances and the appointment of the officer described in the pleadings, a government, exercising political power, it is irresponsible for the official misconduct alleged, upon the same principle which generally protects governments and public officers from liability for the misfeasances and malfeasances of persons necessarily employed under them in the public service. Story, Agency, §§ 319-321; Dunlap's Paley, Agency, 376. Municipal corporations, quoad hoc, stand upon the same foundation with public officers, counties, townships, and other quasi corporations, charged with some public duty, or invested with some portion of the authority of the government, where the employment of officers is necessary and lawful.”

The law is thus stated by that almost omniscient law writer, Judge Story: "The rule which we have been considering, that where persons are acting as public agents