they are responsible only for their own misfeasances and negligence, and (as we have seen) not for the misfeasances and negligences of those who are employed under them, if they have employed persons of suitable skill and ability, and have not co-operated in or authorized the wrong, is not confined to public officers or agents of the government, properly so called, in a strict legal sense; but it equally applies to other public officers or agents engaged in the public service, or acting for public objects, whether their appointments emanate from particular public bodies, or are derived from general laws, and whether those objects are of a local or of a general nature. For, if the doctrine of respondeat superior were applied to such agencies, it would operate as a serious discouragement to persons who perform public functions, many of which are rendered gratuitously, and all of which are highly important to the public interest. In this respect, their case is distinguishable from that of persons acting for their own benefit, or employing others for their own benefit. But the party who suffers the injury under such circumstances is not without redress, for he may maintain a suit against the immediate wrongdoer. Upon this ground it has been held that the trustees of a public turnpike are not liable for the misfeasances or negligences of subagents employed by them in the performance of their duty, unless they have directed the act to be done, or have personally co-operated in the negligence." Agency, § 321, pp. 394-397. would-take from the insane hospital the property to which it has a vested title, nor divert it from the purposes for which it was granted. A grant of property once made absolute by the state to a public or a private corporation cannot be recalled. Vested rights, even of purely municipal corporations, are within the protection of the Federal Constitution. The insane hospital is therefore no more an arm or agency of the state than are various other hospitals, such as that for the deaf, dumb, and blind, or those created by acts similar to the one which created the corporation in question. If, however, the state should create a private corporation and authorize it to do hospital work, or to care for the insane, for profit, then, of course, it would not be a charitable institution or corporation, and would not fall within the rule under consideration. If a charitable corporation should be authorized to do other things than charity, for a profit, then quoad hoc it would not be a charitable institution, and would be liable as are other private business corporations. The same is true of municipal corporations, or of even the state or the United States; but the property of no one of these, which is devoted exclusively to governmental public, or purely charitable, purposes, can be subjected to the payment of the liability. This is true even of railroad corporations: Their depots, tracks, or other property necessary for the corporation in its service of the public, as authorized by its I think these authorities conclusively charter, cannot be subjected to the payshow that purely charitable corporations, as ment of judgments against the corporation. to the question under consideration, are in In other words, property devoted to a pubthe same category as municipalities, coun- lic use, whether for governmental, charitaties, states, etc. If so, then the White Case, ble, or other purposes, is not subject to 138 Ala. 479, 35 So. 454 (Leavell v. West-execution or other legal process. The right ern Kentucky Asylum, 122 Ky. 213, 4 L.R.A. of the individual to such property is secon(N.S.) 269, 91 S. W. 671, 12 Ann. Cas. dary to the right of the public. This has 827), is decisive of this question, because been decided in this state too often, as to it was there decided that the doctrine of charitable institutions, municipal corporarespondeat superior did not apply to that tions, railroads, and other quasi public defendant. And, if not to that hospital, corporations, to need any citation of authen it does not apply to this one. Both thorities. were created by the same Sovereign, and authorized to do only works of charity which would otherwise be done by the Sovereign. The mere fact that the state makes annual appropriations to the one, and not to the other, can make no difference. Each is an arm or agency of the state, created and authorized only to do public charity. The intimation in the White Case, that the property of the insane hospital is the property of the state, is erroneous; it is no more the property of the state than is the property of the defendant corporation in this case. The state could not-if it Apply this undoubted doctrine to the case in hand, and what is the result? If the plaintiff shall succeed in recovering a judg ment, if the pleas in this case are true, defendant has no property, and cannot acquire any property, which can be subjected to execution, sale, or other legal process. Even the English cases uphold this doctrine, those that hold the charity liable in certain cases. All the authorities in the world, so far as I can find, hold that property devoted to a public use cannot be sold under execution or other legal process, except the Rhode Island case, and this de cision was so abhorrent to the people of | 23 Am. Rep. 332. The judgment is conRhode Island that the very first legislature which assembled after its rendition overruled it by an express statute. Municipalities, counties, and states can be compelled by mandamus to levy and collect taxes with which to pay such judgments; but charitable corporations have no such powers or rights, there is no feasible means of obtaining satisfaction of judgments against them. For this reason the "trust fund doctrine" is strictly applicable, not on the ground that no liability can be fixed or fastened upon such corporations, but that, if so fixed or fastened, the judgment could not be satisfied, and obtaining it would be useless. And the law never requires, or even allows, the doing of a wholly useless thing. This will clearly appear from an examination of Fordyce's Case, 79 Ark. 559, 7 L.R.A. (N.S.) 485, 96 S. W. 155. There, by negligence or fraud, the plaintiff had obtained a judgment against a public library, and sought by execution to enforce a sale of its property. The court enjoined the sale. The opinion was written by Judge Rose, one of the greatest lawyers America has produced, and is therefore one of the best considered cases in the world on the subject. The following authorities are conclusive on this question: "A valid vested estate in trust (for charitable purposes) can never lapse or become forfeited by any misconduct in the trustee, or inability in the corporation to execute it, if such existed. Charity never fails; and it is the right as well as the duty of the Sovereign, by its courts and public officers, as also by the legislature (if needed), to have the charities properly administered." Girard v. Philadelphia, 7 Wall. 15, 19 L. ed. 57. "If a defendant permits a judgment to go against him which he might have successfully defended, he may still claim his homestead and other exemptions. Though a judgment is rendered against a railway company, yet its franchise or other property necessary to the operation of its road cannot be sold under execution, because that would interfere with the public good. East Alabama R. Co. v. Doe, 114 U. S. 340, 29 L. ed. 136, 5 Sup. Ct. Rep. 869; 1 Freeman, Executions, § 179. The fact that a city or county is by statute liable to be sued does not necessarily imply that its property may be taken in execution. This has been repeatedly decided. Highway Comrs. v. Martin, 4 Mich. 557, 69 Am. Dec. 333; Waltham v. Kemper, 55 Ill. 346, 8 Am. Rep. 652; White v. Bond County, 58 Ill. 297, 11 Am. Rep. 65; Bussell v. Steuben, 57 Ill. 35; Hill v. Boston, 122 Mass. 352, clusive of the amount of the debt or demand, but it does not conclude the question as to the liability of any property to seizure under it. That is a question that may never arise. "In every city of any considerable size may be found one or more hospitals organized and maintained by the city for charitable purposes, and one or more hospitals maintained by private benevolence, under the control of trustees appointed or elected as the donors may direct or the statute may require. But a devise to a city for charitable purposes is valid. McDonogh v. Murdoch, 15 How. 367, 14 L. ed. 732; Perin v. Carey, 24 How. 465, 16 L. ed. 701. Let us suppose then that a city had two hospitals, one created and supported out of the municipal revenues and another dependent upon a charitable gift and the donations of private individuals, both under the control of the city as a trustee. According to the doctrine contended for in behalf of the appellants, the former could not be sold under execution because it belonged to the city, and the later could be thus sold because the city was only a trustee; and this, notwithstanding both were charities instituted for the public good.' Such a distinction cannot be supported except by ignoring the general public interests common to both of these cases. The question is not as to who holds the property in trust, which is merely a personal consideration, a matter of policy and expediency; but it relates to the objects for which all charitable issues are created, and on account of which they are highly favored by law. A discrimination based, not on the character of the trust, but on the character of the trustee, would be false and misleading. The property of a public corporation, such as a railroad or bridge company, essential to the exercise of its corporate franchise and the performance of its duties toward the public, cannot, without statutory authority, be sold to satisfy a common-law judgment, either on execution, or in the pursuance of an order or decree of court." Fordyce v. Woman's Christian Nat. Library Asso. supra. The opinion in this case seems to make a distinction between a pay patient in a charitable institution, and one who does not pay. The authorities all hold that there is no difference as to the liability of purely charitable institutions for the torts of their agents, as to pay and nonpay patients. This is well and truly stated in a note to the report of the case of Hordern v. Salvation Army, 139 Am. St. Rep. 899, as follows: "The authorities seem to agree that an institution otherwise a child through the negligence of an ex- mother of the child contributed to the expense of its care at the institution. Cunningham v. Sheltering Arms, 135 App. Div. 178, 119 N. Y. Supp. 1033." Most all the cases are reviewed or cited in the opinion and notes to this case. GEORGIA SUPREME COURT. J. T. BELL, Plff. in Err., V. CORA ROSIGNOL. (— Ga. — 84 S. E. 542.) Husband and wife liability of wife for groceries. Where a married woman personally applies to a tradesman for the purchase of groceries, stating that she wishes to open an account in her own name, and directs the plaintiff to charge the goods to her, and where in pursuance of this arrangement the goods are delivered at her home and charged to her, she will be personally liable therefor, notwithstanding the legal obligation of the husband to support his wife, and the groceries being such as would be a proper support to be provided by the husband for the family. (February 11, 1915.) Headnote by EVANS, P. J. Note. — Liability of married woman for necessaries purchased by her. This note is supplementary to the note appended to Clark v. Tenneson, 33 L.R.A. (N.S.) 426. In equity. Supplementing 33 L.R.A. (N.S.) 426. In Bowen v. Daugherty, 168 N. C. 242, 84 S. E. 265, the court said obiter that if a husband liable for necessaries furnished to his wife should fail to pay, or because of his estate being insolvent payment could not be enforced, authority is to the effect that an equity might arise to the creditor enabling him to collect from the wife's estate, but otherwise, and except under such conditions, the debt is and continues to be that of the husband, and enforceable against him or his estate. Of course, if a hospital or an educational institution is operated for private gain and profit, then it is not a charitable institution, and the doctrine or rule being considered does not apply. The very definition of a "charitable trust" or "charitable institution" is that it is for the use and benefit of the public, and not for that of particular individuals. A "charity" is a gift to be applied for the benefit of an indefinite number of persons, thereby relieving the government pro tanto of the discharge of its duties as to educating the mines, training the hands, improving the morals, and relieving the pains and suffering, of such indefinite number. If it be not a gift, or if it be a gift to a definite number, then it is not a charity, but is a private business, and is in the same category as other private business corporations. Under general enabling statutes. To be a charitable trust there must be a Supplementing 33 L.R.A. (N.S.) 427. gift by the Sovereign or by individuals, Under a statute providing in effect that and it must be for a public purpose, either except in conveyances of her real estate and in case of contract with her husband, a local or general. The gift must extend to married woman was authorized to contract the poor as well as to the rich. Charitable and deal as if she were unmarried, it is uses or trusts may extend to almost any-held that the estate of the wife was not thing which tends to promote the well-liable for necessaries which were supplied doing or the well-being of the genus homo. It must, however, be to an indefinite number, and be for a purpose which the government or Sovereign ought otherwise to do, in order that it be protected from spoliation or diversion, as other property is protected which is devoted to a public use, such as city halls, courthouses, state capitols, universities, public hospitals, etc. band, without any express promise on her to her when she was living with her huspart to pay for them. Bowen v. Daugherty, supra. Under a statute which completely emancipates a married woman so that she may deal and contract without her husband's consent as freely as if she were unmarried, except in dealing with her husband, she may purchase necessaries on her own credit, and the creditor may recover for them with Defendant was liable for the groceries. Freeman v. Coleman, 86 Ga. 590, 12 S. E. 1064; Finch v. Barclay, 87 Ga. 393, 13 S. E. 566; Villa Rica Lumber Co. v. Paratain, 92 Ga. 370, 17 S. E. 340; Chastain v. Peak, 111 Ga. 889, 36 S. E. 967; Goodson v. Powell, 9 Ga. App. 497, 71 S. E. 765. out making the husband a party defendant; and in such an action, brought solely against the wife, it is improper to permit the husband to make a counterclaim against the plaintiff. Lipinsky v. Revell, 167 N. C. 508, 83 S. E. 820. Under special statute. Supplementing 33 L.R.A. (N.S.) 430. The statutes of some states expressly provide that the separate estate of a wife shall be liable for necessaries. Thus, the statute of California makes the separate property of the wife acquired by her after marriage, subject to debts for necessaries which are furnished to either husband or wife while living together. Evans v. Noonan, 20 Cal. App. 288, 128 Pac. 794. Necessity for express contract. Supplementing 33 L.R.A. (N.S.) 431. A married woman who is living with her husband cannot be held liable on an account for necessaries furnished herself and children unless she expressly contracted or signified that she intended that she herself, and not her husband, would assume the obligation. Oliver v. Webb, 12 Ga. App. 216, 76 S. E. 1081. Under a statute making the funeral expenses of a deceased person a preferred charge against his estate, a mere direction by a widow to an undertaker to furnish such service and supplies is presumed to be made on the credit of the estate, and nothing short of an order and an express promise by the widow to pay for the fur nishings would create a primary liability on her part. Butterworth v. Bredemeyer, 74 Wash. 524, 133 Pac. 1061. In Mooney v. McMahon, 83 N. J. L. 120, 83 Atl. 504, in which the plaintiff sought to recover against the estate of her stepmother for services rendered by her in the household maintained by her father and stepmother, to perform which she had abandoned a lucrative position upon the written request of her stepmother, it was held that she could not recover against the stepmother's estate, the court saying that to fix such a liability there must be either an express contract to pay out of her own Messrs. Smith & Hastings, for defendant in error: A married woman cannot be held liable on account of necessaries furnished for the support of the family, unless it appears that she expressly contracted to be liable therefor. Freeman v. Holmes, 62 Ga. 556; Rushing v. Clancy, 92 Ga. 769, 19 S. E. 711; Oliver v. Webb, 12 Ga. App. 216, 76 S. E. 1081. Evans, P. J., delivered the opinion of the court: The plaintiff, a grocery merchant, brought suit against the defendant, a married woman, to recover upon an alleged indebtedness estate, or circumstances clearly showing the assumption of an individual liability on her part, exclusive of that of her husband. In H. Leonard & Sons v. Stowe, 166 Mich. 681, 132 N. W. 454, a joint action against a husband and wife in which judgment was taken upon the pleadings against the wife and judgment rendered in favor of the husband upon a written contract, made by the wife alone, for the purchase of goods, the court said it seemed unnecessary to state that in the face of the written contract plaintiff was not permitted to say that the goods were in fact agreed to be sold upon the credit of the husband, and that, assuming that the wife had authority, express or implied to bind her husband by purchases of goods, she did not undertake to bind him. What is sufficient to show a contract to bind herself. Supplementing 33 L.R.A. (N.S.) 432. While a wife may by agreement charge herself personally for necessaries purchased by her for the family while living with her husband, the presumption is that such purchases were made by her as agent of the husband, and that he alone is liable; so, where the proof goes only to the extent of the showing that the wife came to plaintiff's store and ordered groceries, that they were delivered to her home and the bills sent to her, and that when plaintiff asked the husband for payment, he replied that his wife said she had no money yet and plaintiff would have to wait,-it was held that the wife was not liable personally for the debt, and, the husband being primarily liable, an oral promise to pay made by the wife after the debt was incurred would be merely a promise to pay the debt of another, and not binding upon her. Speckman v. Foote, 138 N. Y. Supp. 380. In Wilder v. Brokaw, 141 App. Div. 811, 126 N. Y. Supp. 932, it is held that a wife living apart from her husband may bind herself by a contract for necessaries, the question being merely as to whether credit was extended to her or to her husband, and where the evidence is conflicting on that question it should be submitted to a jury. R. L. S. press contract on her part to buy the goods as an individual. The facts in the cases of Freeman v. Holmes, 62 Ga. 556, and Rushing v. Clancy, 92 Ga. 769, 19 S. E. 711, are dissimilar from those of the case at bar. In the former case a husband accompanied his wife and child to the office of a dentist, and introduced them to the dentist. Under these circumstances it was held there could be no recovery against the wife for dentistry done for herself and child, especially where it appeared that the dentist knew nothing about her having any separate estate, and impliedly gave credit to the husband, and not the wife. In the latter case, the wife and her husband applied for board, but the husband took no part in the negotiations, and it was held that, in the absence of an express promise by the wife to charge herself or her separate estate, the board contracted for being such as her husband is bound to furnish to her and her children, the husband, and not the wife, was liable therefor. In both cases the husband was present when the services and board were contracted for, and in the absence of an express contract by the wife to pay for same, the implication was that the credit was extended to the husband. In the instant case there was evidence that the wife, without being attended by her husband, applied for credit and requested the goods be charged to her. The court erred in sustaining the motion for nonsuit. Judgment reversed. for groceries. The defendant pleaded that all the purchases were made for her husband's account, as head of the family, which was well known to the plaintiff. She did not deny that the merchandise was furnished, or that it was worth the amounts charged. On the conclusion of the plaintiff's evidence he was nonsuited. The testimony submitted by him tended to show that he was a grocery merchant. The defendant applied to him for credit, stating that she wanted to open an account with him in her own name; that her husband was a good, easy fellow and allowed himself to be imposed upon, and she ran the house herself. She directed the plaintiff to charge the goods in her name. The plaintiff had heard that the husband was a bankrupt at the time his wife opened the account. In supplying the goods he made out with each delivery a duplicate statement, one of which was delivered with the goods and the other was kept by him. These statements were made out on a printed blank and the line for the was preceded by the capital letter, "M." On many of the statements was written the name "Rosignol;" on many, the letters "RS" followed the capital letter "M," and these letters were followed by the name of Rosignol; on others appeared only the address, "106 Cherokee Ave.," without any name. When the plaintiff called at defendant's home, he always talked to the defendant about the account and asked her for the money. On some occasions the defendant's husband would be at home and would meet plaintiff at the door and would say, "You want to see Cora." The defendant made the payments on the account. The husband brought him one payment, and said that his wife had sent the money to be credited on her account. The groceries were furnished for the defendant, her husband and WEST VIRGINIA SUPREME COURT name child. The plaintiff knew that the defendant owned a vacant lot, and that the husband worked sometimes for railroads, and that his family lived with him. There can be no doubt that a married woman on her own credit may, by express contract, bind herself for the purchase of necessaries for herself and family. It is true that the husband is bound to support his wife and family, but this legal obligation does not prevent the wife from buying on her own responsibility groceries for the support of the family, and personally agreeing to pay for them. In the instant case it is inferable from the evidence that, unattended by her husband, the wife applied to the merchant for a line of credit to be extended individually to her, that the credit was extended to her, and not to her husband, and that the goods were furnished to her on her credit. This amounts to an ex All the Justices concur, except Fish, Ch. J., absent. OF APPEALS. |