Sections 2558 and 2558a exclude distillers from the provisions of the local option law as to sales of whisky of their own manufacture by wholesale to dealers (that is, in quantities of 5 gallons and over), which is delivered at one time, and not to be drunk on the premises. In other respects they, like other persons, are subject to the local option statutes. So that for two reasons Frogg does not show himself protected in sales of whisky by any of the exceptions to the local option law: (1) The sales or intended sales were in quantities of less than 5 gallons; and (2) the whisky was kept for sale and the sales made at his residence, and not at the distillery, the place of manufacture.

But appellant contends that he is not guilty of a violation of the law because he did not intend to sell it to anyone in Kentucky, nor did he intend for anyone to use or consume it in Kentucky. Furthermore, he insists that as the business was a part of interstate commerce, and the whisky was to be delivered to an interstate carrier for shipment to consignees in the state of Tennessee, an application of the prohibitory liquor laws of Kentucky to such business would be an interference with interstate commerce, and therefore contrary to Federal law. We have reached the conclusion that the facts do not show any interference with interstate commerce, nor do they constitute a defense to a prosecution for violating the state law. In our opinion, the admitted facts make appellant guilty of selling whisky in violation of the local option law; and, to have been guilty of that offense, he was necessarily guilty of the offense of having or possessing whisky for purposes of sale. He admits that he had 13 gallons at his residence for the purpose of drawing it off into bottles, each containing less than 5 gallons, and that he had received letters with cash or money order inclosures from parties in Tennessee for such packages, and in the case of four packages he had already separated them from his own whisky and marked and labeled them as the property of the purchaser (that is, in the name of the consignee with his address), so that they were ready for shipment, and he intended to deliver them to an interstate carrier for that purpose. This state of facts shows a complete sale in McCreary county. The liquor was paid for and marked and set apart for and as the property of the buyer, and he held it as agent or bailee of the buyer, and the buyer'

not have passed to his personal representative. 35 Cyc. 192, on the subject of sales, says: "And when specific articles are sold, if they are marked as purchased by the buyer, and set aside for him, this is such an appropriation as will constitute a delivery."

In 35 Cyc. 313, the rule is again stated: "Unless a contrary intention appears, the property will pass as between the parties, although the goods remain in the custody of the seller as bailee of the buyer."

After noting the fact that this rule does not apply in the case of creditors and subsequent purchasers, the author proceeds with a discussion in this language: "There will, however, be a delivery and change of possession sufficient to pass the property as against third persons, although the goods remain in the apparent possession of the seller, if it clearly appears that he is in possession merely as an employee of the buyer, or that he is in possession as a bailee or trustee for the buyer; but there must be some act or circumstance to indicate the change in the character of his possession and give notice to the world of the change of ownership, or the possession will be regarded as continuing in the seller."

On page 315 the same author, in discussing the effect of segregation or setting apart, says: "Although the goods remain in the physical possession of the seller, yet there is such a delivery as will pass the property in the goods, even as against third persons, if they are segregated and set apart for the buyer, or marked as his property." The case of United States v. Lackey (D. C.) 120 Fed. 577, is in point. It was a prosecution for selling liquor without license. The defendant delivered C. O. D. shipments to his own servant to carry by wagon from Woolwine to Roanoke, Virginia. The immediate point in the case was whether the sale took place at Woolwine or Roanoke. The court said: "Assume that the contract of sale on credit has been made; that the de sired article has been segregated from the vendor's stock, and marked distinctly as the property of the vendee, and is still in the vendor's possession awaiting an opportunity for shipment. Is this enough to transfer the title? In case where there is no express or implied agreement that the sale shall not be complete until delivery, I think the acts above mentioned transfer the title to the vendee."

After further discussing the C. O. D. feature, and holding that in such shipments the sale was undoubtedly completed on delivery to the carrier, it was nevertheless fur

if any, is a question for the jury; but proof of the good health of the person whose ex

NEBRASKA SUPREME COURT.

Broz, Deceased,

V.

OMAHA MATERNITY & GENERAL HOSPITAL ASSOCIATION, Appt.

1. As data or evidence tending to show expectancy of life, mortality tables are not conclusive, but they are competent to aid the jury in determining the probable duration of life, when that question is in issue, and may properly be submitted with other evidence.

Trial jury

1

effect of evidence.

mortality tables

health

3. Proof of disease or of ill health or of hazardous employment may impair or destroy the effect of mortality tables as evidence, but does not make them inadmissible. Same admission statement by referee.

Headnotes by ROSE, J.

Note. - Liability of proprietor of private sanitarium or hospital for negligence of nurse or attendant.

This is a continuation of the note to Stanley v. Schumpert, 6 L.R.A. (N.S.) 306, which discusses the earlier cases on this question.

As to liability of charitable institutions, including public hospitals, for personal injuries, see notes to Farrigan v. Pevear, 7 L.R.A. (N.S.) 481; Bruce v. Central M. E. Church, 10 L.R.A. (N.S.) 74; Thornton v. Franklin Square House, 22 L.R.A. (N.S.) 486; Hordern v. Salvation Army, 32 L.R.A. (N.S.) 62; Basabo v. Salvation Army, 42 L.R.A. (N.S.) 1144; and Schloendorff v. Society of New York Hospital, 52 L.R.A. (N.S.) 505. Reference will also be found in these notes to other annotation on analogous questions.

As to liability for negligence of attendants furnished by relief department toward which employees contribute, see notes to Phillips v. St. Louis & S. F. R. Co. 17 L.R.A. (N.S.) 1167; Texas C. R. Co. v. Zumwalt, 30 L.R.A. (N.S.) 1207; and Nations v. Ludington, W. & V. S. Lumber Co. 48 L.R.A. (N.S.) 531.

As to liability of operating surgeon for negligent acts of interne or hospital nurse in caring for patients, see note to Harris v. Fall, 27 L.R.A. (N.S.) 1174.

It is generally held that the owner or proprietor of a private hospital or sanitarium, operated for profit, is liable in damages for the negligence of his employee. This rule rests upon the general doctrine that a master is responsible for the torts of his servant in the scope of his employment. Richardson v. Dumas, Miss. 64 So. 459, citing cases contained in the earlier note in 6 L.R.A. (N.S.) 306; Wetzel v. Omaha Maternity & General Hospital Asso. 96 Neb. 638, 148 N. W. 582, 7 N. C. C. A. 82.

A patient is generally admitted to a hospital conducted for private gain, under an implied obligation that he shall receive such

answering those questions, that he got the

reasonable care and attention for his safety as his mental and physical condition, if known, may require. Wetzel v. Omaha Maternity & General Hospital Asso. supra; see also infra.

A hospital which is an adjunct of a medical school, and is conducted for profit, is not a purely public charity, so as to be exempt from liability for the negligence of its servants, although it takes some free patients. University of Louisville v. Hammock, 127 Ky. 564, 14 L.R.A. (N.S.) 784, 128 Am. St. Rep. 355, 106 S. W. 219.

The fact that a corporation organized as a business corporation to conduct a hospital receives a patient who is a county charge, under a contract with the county for less remuneration than the service is worth, does not preclude him from holding it liable to him for injuries caused by the negligence or incompetence of nurses. Gitzhoffen v. Sisters of Holy Cross Hospital Asso. 32 Utah, 46, 8 L.R.A. (N.S.) 1161, 88 Pac. 691. In the above case the defendant sought to escape liability by showing that the hospital was conducted solely as a charitable institution, and not for profit; but the court held that a corporation organized as a business corporation to conduct a hospital cannot, by paro! evidence, show itself to be a charitable organization.

The fact that a powerful man, suffering from delirium tremens, is left in an insecure apartment in a hospital, in charge of a woman, powerless to restrain him, the hospital authorities knowing his condition, and that such a person may reasonably be expected to become violent, uncontrollable, and dangerous at any time, is evidence of negligence upon which a jury may base a verdict in an action against the hospital because of injuries due to his assault on another patient. University of Louisville v. Hammock, supra.

A verdict for $1,000 for injuries received by a sick woman in an attack upon her in a hospital by a mad patient who was negligently suffered to escape from his apart

negligence

liability.

5. A hospital conducted for private gain is liable to a patient for the negligence of nurses, while acting within the scope of their employment.

Physician bility.

insanity.

presumption of continued

Hospital

contract duty.

7. A patient is generally admitted to a ment is not too much, where she is immedi-, ately made much worse thereby, and her health to some extent permanently impaired. Ibid.

Where a delirious patient was injured by falling out of the window of a private sanitarium, the proprietor's liability was held a question for the jury in Richardson v. Dumas, supra. The court stated that the patient was under the control and care of such owner or proprietor, and his employee, the nurse; under the contract it was the duty of the proprietor to give the patient all the attention required; the facts presented by the evidence, the very nature of the occurrence, shows a prima facie case of negligence in failing to exercise due care in nursing and looking after the patient.

In an action against a hospital conducted for private gain, to recover damages for negligence in caring for a delirious patient whose death resulted from his jumping from an unprotected, unfastened, and unguarded window in the absence of an attendant, the issue of negligence was, in Wetzel v. Omaha Maternity & General Hospital Asso. supra, held to be for the jury, where the evidence tended to show that he was knowingly admitted to the hospital under an implied obligation that he should receive such reasonable care and attention for his safety as his mental and physical condition required, and that the nurse in charge, at the time of the accident, had been absent for a period estimated by one witness to be less than five minutes, and by another to be about an hour.

The decision in Duncan v. St. Luke's Hospital, 113 App. Div. 68, 98 N. Y. Supp. 867, affirmed in 192 N. Y. 580, 85 N. E. 1109, denying a husband's right to recover damages from a hospital for the death of his insane wife in consequence of a breach of contract to keep a constant watch and guard over her, as a result of which she threw herself out of a window and was killed, was upon the ground that the case was not within the statute giving an action for death,

sent.)

(July 14, 1914.)

and there was no right of action independently of the statute.

Where a patient in a hospital was burned apparently by coming into contact with an open gas fire burning in the room, as a consequence of being left alone to look after his own safety, he being unconscious and oblivious to all his surroundings, and yet physically able to get up and tumble about, the court in Hogan v. Clarksburg Hospital Co. 63 W. Va. 84, 59 S. E. 943, reversing a judgment for defendant, stated that "there can be no question about the liability of a hospital which is being conducted for private gain, and not for charitable purposes, for damages to its patients through the negligence or misconduct of its officers and employees. It is bound to exercise that degree of care towards its patients placed therein measured by the ca pacity of such patients to look after and provide for their own safety. It is the duty of such hospital to employ only competent physicians and nurses, and to treat such patients with such skill and care as ordinarily obtains in conduct of such institutions, and to protect its patients in such manner as their condition may render necessary; and such degree of care and diligence should be in proportion to the physical or mental ailments of the patient rendering him unable to look after his own safety. . . . A hospital is not an insurer of its patients against injury inflicted by themselves, or that a patient in a hospital must be attended continuously by a nurse other attendants, as it is claimed would be the case, as a matter of law, if the decision herein of the court below should be reversed as indicated by defendant's counsel. On the other hand, hospitals will only be required as heretofore to use ordinary and reasonable care and diligence in the treatment and care of their patients."

or

While a physician conducting a private hospital for pecuniary profit was held liable in Fawcett v. Ryder, 23 N. D. 20, 135 N. W. 800, for injury to a patient by com