
    PROVIDENCE COUNTY.
    John Glavin vs. The Rhode Island Hospital.
    A., who had been for some three weeks a patient in the Rhode Island Hospital paying $8.00 per week, brought an action against the hospital for damages, alleging severe injuries caused by the unskilfulness and negligence of the surgical interne, a house officer of the hospital. At the trial a verdict for the defendant was directed by the presiding judge on the ground that the hospital, being a public charit}', was exempt for reasons of public policy from the liability charged. On exceptions brought by A.:
    Meld, that, in the absence of legislative provisions granting such exemption, the exemption could not be allowed, public policy requiring that duty assumed should be faithfully performed.
    
      Meld, further, that although the attendant physicians and surgeons could not be considered the servants of the hospital, yet the hospital was responsible for the exercise of reasonable care in selecting them.
    
      Meld, further, that the surgical internes acting as surgeons under the rules of the hospital held the same relation to the hospital as the attendant surgeons.
    
      Meld, further, that in cases where the hospital rules required the interne to summon an attendant surgeon, the interne was the agent of the hospital for this purpose, and the hospital was liable for his omission or negligence.
    
      Meld, further, that if an incompetent interne was appointed by the negligence of the managers of the hospital, the hospital was responsible for the results of such negligence and of the incompetence of the interne.
    
      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 servants.
    
      Holliday v. St. Leonard, 11 C. B. N. S. 192, and McDonald v. The Massachusetts General Hospital, 120 Mass. 432, discussed.
    PLAINTIFF'S petition for a new trial. So mucb of the facts of tbe case proven or alleged as are involved in the present discussion are stated in the opinion of the court given by the chief justice.
    
      Charles B. Gorman, for plaintiff.
    The plaintiff contends that the defendant is liable in this action because,
    The defendant by express contract agreed to care for him and furnish him with such careful and skilful attendance as the nature of his injuries demanded, as is shown by the bill presented to him by the defendant and paid to it.
    The defendant conducting a hospital for the care and attendance of persons requiring surgical treatment, having received the plaintiff as a patient for reward and hire,, the law implies a contract that the defendant would furnish to the plaintiff the care, attendance and surgical skill that his case required.
    Whether there was an express or implied contract or not between the plaintiff and defendant does not affect the plaintiff’s case, as an action to recover damages for injuries received through the negligence of another can be maintained without there being any contract, i. e. where the defendant owes or assumes a duty toward the plaintiff, an action lies for negligence in the performance of that duty.
    The duty which the defendant owed the plaintiff was to furnish him the care and attendance his case required, and this duty existed regardless of there being any contract or any compensation being paid for the services. Having assumed to receive and care for the plaintiff, the defendant was bound to use care, skill, and diligence in that care.
    The plaintiff asserts that the defendant was negligent towards him in these particulars:
    1. Because the defendant placed him under the care of an incompetent and unskilful person, in whose selection and appointment the defendant did not use the care that should be exercised in the selection of a servant to be intrusted with human life.
    2. Because the defendant’s interne unskilfully treated the plaintiff and thus caused a dangerous hemorrhage.
    
      3. Because the defendant did not furnish the proper attendance and treatment nor the surgical care required by the plaintiff’s condition. And in this the defendant’s officers and servants neglected to observe the hospital rule which requires, “ in all cases, whether medical or surgical, requiring immediate and important action, or whenever there is any doubt as to the proper treatment, and in all cases of accident requiring immediate operation, the house physician or house surgeon shall send for the visiting physician or surgeon of the day, as the case may be, either medical or surgical, and if he cannot be found, then for any one of the visiting physicians or surgeons of the hospital; ” which rule is imposed upon the defendant by its charter provisions that it “ shall ordain, institute, establish, and put in execution such rules, regulations, and by-laws as may be deemed expedient for the internal government and economy of the institution, and for the well ordering, management, and conduct of all the affairs thereof and of all officers, agents, and persons appointed or employed by them in and about the establishment.”
    The surgical interne, recognizing the case as a capital one in surgery, neglected to send for an attending surgeon, but, without sufficient skill, performed an operation upon the plaintiff’s hand, and during the operation, by his negligence severed an important artery, occasioning a hemorrhage which would have terminated in the plaintiff’s death, if not arrested. Without sufficient skill he frequently attempted to ligate the bleeding vessel, but failed. Instead of obeying the rules in sending for an attending surgeon, he applied a dangerous instrument, which requires experience and skill in its appliance, known as a tourniquet, to the plaintiff’s arm, and thus left him for nearly seventeen hours.
    When a private corporation has accepted its charter, it is liable for non-performance and mis-performance of the duties imposed by its charter. Riddle v. Proprietors of Lochs, fc. on Merri-mae River, 7 Mass. 169, 184; Mlis v. Mayor, fc. of Bridg-north, 15 G. B. N. S. 52 ; Mayor, ¿"C. of Savannah v. Oullens, 38 Ga. 334; Fennimore v. New Orleans, 20 La. An. 124; Nebraska City v. Campbell, 2 Black, 590; County Commissioners v. Bucket, 20 Md. 468 ; Providence Bank v. Billings f Pittman, 4 Pet. 514; Sheldon v. Kalamazoo, 24 Mich. 383; Barnes v. Bistrict of Columbia, 1 Otto, 540.
    
      The Rhode Island Hospital, is founded and maintained by private benefaction, and although dedicated by its charter to general charity, is a private corporation and liable for the negligence of its servants. 2 Kent’s Comm. *276 ; Trustees of Dartmouth College v. Woodivard, 4 Wheat. 518; Saint Mary's Church, 7 Serg. & R. 517, 559 ; McKim v. Odom, 3 Bland, 407 ; Allen v. McKeen, 1 Sumn. 276 ; Ten Thy oh v. Delaware Raritan Canal, 3 Harr. (N. J.) 200; Miners’ Ditch Co. v. Zellebach, 37 Cal. 543 ; St. Mary’s Industrial v. Brown, 45 Md. 310; Regents of University of Marylandj v. Williams, 9 Gill & J. 365 ; The Rector, ¿•c. of Church of Ascension v. Buchhart, 3 Hill, 193.
    A corporation may be private although it derives part of its support from the State. Cleaveland v. Stewart, 3 Ga. 283.
    Where confidence is bestowed and accepted it is a sufficient consideration to support an action for neglect. Wharton on Negligence, §§ 503, 504, 506 ; Bernard v. Coggs, Smith’s Leading Cases, Vol. 1, 346 and notes ; Lannen v. The Albany Gras Light Co. 44 N. Y. 459 ; Me Glandless v. McWha, 22 Pa. St. 261.
    An employer or master is liable for the negligence of his servant, if committed in the course of the servant’s employment and for his master’s benefit.
    The master is liable, not only for acts which he either directly or indirectly orders, but also for all the acts or omissions which, even though the master does not order them, are CQmmitted by his servant in the course of his service, or, in other words, which are the results of the master’s employing the servant.
    “ The liability of a master,” says Mr. Dicey, “ for the acts of his servant is analogous to the liability of an owner for injuries committed by animals belonging to him. Neither the master nor the owner is liable, because he has himself done the particular act complained of. He is responsible because the wrong is the result of his having in the one case employed an incompetent servant, and in the other kept an animal of habits injurious to his neighbors.” Dicey on Parties to Actions, rule 102, *445; Wood on Master and Servant, cap. 13, § 279.
    The master’s liability does not depend upon his ordering the particular act, for he may be responsible even though he forbid it. The reason of this extended liability is that if the master were not responsible for wrongs committed in his service, the injured person would be constantly without remedy. Dicey on Parties, *447, and cases cited.
    To say that the defendant corporation is liable for negligence in the choice of its servants, is no more than saying that it is liable for any negligence that causes the injury, whether it is its direct negligence or its servant’s negligence.
    When it is said that one is liable for negligence in the choice of its servants, there must also be negligence by the servant before liability is incurred. The primary rule always requires this; when the last occurs, liability attaches to the master; where both unite, his degree of negligence is greater.
    It may, however, be claimed upon the authority of Holliday y. St. Leonard, a case decided in 1861 by the Court of Common Pleas of England, and reported in 11 C. B. N. S. 192, and of McDonald v. Massachusetts Gfeneral Hospital, 120 Mass. 432, which rests entirely upon the case of' Holliday v. St. Leonard, that the defendant corporation is not liable for the negligence of its servants.
    These cases are in conflict with every principle of law, and entirely without previous authority.
    The case of Holliday y. St. Leonard was five years prior to its adoption by the Supreme Court of Massachusetts practically overruled by the Plouse of Lords in the case of Mersey Docks v. Qibbs (1866), L. R. 1 H. L. 93, and was directly overruled by the Court of Queen’s Bench in 1871, in the case of Foreman y. Mayor of Canterbury, L. R. 6 Q. B. 214. Coe v. Wise, L. R. 1 Q. B. 711; opinion of Blackburn, J., in Coe y. Wise, 5 B. & S. 458; Campbell et ais. v. Hornsby, I. R. 7 C. L. 82, 540; see opinion of Monahan, C. J., in Campbell v. Tate, I. R. 5 C. L. 193 ; Huck v. Williams, 3 H. & N. 306 ; Proprietors of Northampton Ltehin Bridge y. Southampton Local Board, 8 El. & B. 800; Levingston y. Gruardians of the Lurgan Union, I. R. 2 C. L. 202; White v. Hindley Local Board, L. R. 10 Q. B. 219 ; Mersey Docks v. Cameron, 11 H. L. 443 ; (governors of St, Thomas' Hospital y. Stratton et als. 23 W. R. 882; Gfibbs v. Trustees of Liverpool Docks, 3 H. & N. 164.
    This immunity is claimed upon the ground of public policy, because if the liability exists, charitably disposed persons would cease to endow the institution and the funds of the hospital would ultimately be exhausted by judgments against it.
    
      |Public policy rather demands that such a liability should exist: First, in order to prevent injury to persons and property; second, to compensate for such injury.
    The suggestion that the funds would be exhausted by judgments, presupposes that the hospital is to be continued under negligent management. If that be so, then the sooner its funds are exhausted by compensating those injured, and persons are deterred from endowing it by being notified of its mismanagement, the better for all persons interested as well as the public. Particularly the public, as charitable persons will always exist, and by the enforcement of this liability the usefulness of institutions are increased, and persons are informed of institutions whose usefulness is impaired by mismanagement and negligence. In this way all charitable institutions that deserve the assistance and encouragement of the public and individuals are promoted, and unmeritorious ones are prevented from imposing upon the public and benevolent persons.
    / The case of McDonald v. Massachusetts General Hospital, as far as it decides anything, is not applicable to the present case, for Glavin was not a free patient as was McDonald.
    The authorities in this country fully sustain what the petitioner claims to be the full limit of the exception from the general rule of liability of the master for his servant’s negligence.
    The cases are of two classes. First, where the duty performing is a public one, imposed upon the master by the State; such as Bigelow v. Inhabitants of Randolph, 14 Gray, 541; Hill v. Oity of Boston, 122 Mass. 344 ; Altvater v. Mayor, §•c. of Baltimore, 31 Md. 462. Second, when the duty is a public one, and incidental to the general rights and privileges of a municipal corporation, and is for the benefit of the whole public and not for municipal advantage or profit; such as Buttrich v. Oity of Lowell, 1 Allen, 172 ; Oity of Richmond v. Long's Adm'rs, 17 Grat. 375; Hastman v. Meredith, 36 N. H. 284; Commissioners of Hamilton Go. v. Mighels, 7 Ohio St. 109; Hajf ord v. Oity of New Bedford, 16 Gray, 297 ; Fisher v. Oity of Boston, 104 Mass. 87.
    The present case does not come within either of the above classes.
    
      See also 2 Dillon on Municipal Corporations, §§ 772-775.
    The case of Feoffees of Heriofs Hospital v. Ross, cited on the defendant’s brief, so far as it intimates that trustees of a public charity are not responsible for wrongful acts, rests upon Duncan v. Finlater, which has repeatedly been declared not to be an authority supporting that proposition, as it was decided upon the ground that there was no proof that the person employed by the master in that case was the defendant’s servant.
    
      Oliarles Hart f Charles Bradley, for defendant.
    The evidence fails to prove that the undertaking was such as is alleged by the plaintiff’s declaration, and certainly the burden of proof is on the plaintiff.
    The evidence does show that the defendant undertook merely to provide the plaintiff the shelter, food, warmth, and nursing of a hospital, for a moderate compensation, if he was able to pay. That all medical and surgical attendance was free.
    The defendant did not undertake the duties of a surgeon in treating plaintiff’s injury, but only to place him in charge of the interne or visiting surgeon.
    The undertaking by the defendant was not to treat this case, but simply to act in good faith and use due care in appointing its internes and attending surgeon, and to select those suitable for the service to be performed.
    Even if there was any evidence of the incompetency of the interne, it would not be evidence that the defendant neglected to take the greatest care to ascertain and satisfy itself of his fitness for the place, and that is all that the defendant would be bound to do.
    The defendant, not undertaking professional charge of the plaintiff, owed him no professional duty, and would not be responsible for a breach of professional duty on the part of the interne.
    The defendant cannot be liable for any incompetency or negligence of the surgical interne, if in treating this plaintiff he was acting, in so doing, out of the scope of his employment.
    If this plaintiff was treated in an incompetent manner by the interne, the defendant is not responsible if the defendant never directed the internes to do any such work or such kind of work.
    The defendant certainly could not be held liable for any incompetency or negligence of an interne whose services were gratuitous, acting as surgeon, and the plaintiff cannot maintain this action.
    The direction of the court to the jury to return a yerdict for the defendant was right.
    The case of Mersey Docks v. Cfihbs, L. R. 1 H. L, 93, and the other cases cited at the close of plaintiff’s brief, are clearly distinguishable from the case at bar. They are cases of business and trading corporations taking tolls for profit and the purposes of their creation, which tolls the public were obliged to pay. The House of Lords, in' overruling Holliday y. St. Leonard, simply affirm that such corporations, though created for a public purpose, and discharging the duty without pay, are not necessarily relieved from liability for the negligence of their servants.
    But see on this point in this country, Hill v. City of Boston, 122 Mass. 344.
    The exemption from liability of the defendant was not placed by the court in- the charge, on the ground that it was performing without charge a public duty imposed upon it by law; but that on grounds and reasons of public policy, a corporation like the present, whether treated as a private corporation or as a quasi public corporation, is at least á corporation dispensing a public charity, and as such should be exempted. That if the trust funds of such a corporation held by the bounty of the State and individuals, for purposes of charity, are to answer for the negligence of the unpaid servants of the corporation, it would be utterly destructive of the ends of. its being, and there is no other source from which verdicts could be. paid. No case can be found where a hospital like this was ever held thus liable, and only one case, referred to below, where it has been attempted.
    But if the broad doctrine of the charge be not correct it is certainly true, we submit, that a corporation like the present, having, exercised due care in the selection of its agents, is not liable for injury to a patient caused by their negligence, nor for the unauthorized assumption of one of the hospital attendants to act as a surgeon. McDonald v. Massachusetts Gfeneral Hospital, 120 Mass. 432.
    The court in that case do not say the corporation would have been liable if they had not exercised due care in the selection of the officers. There being no evidence of the want of due care, there was no occasion to pass upon that question. We think it quite evident from the reasoning that the court would have gone, if required, the full length of the charge in this case. And see Feoffees of Heriot's Hospital v. Ross, 12 Cl. & Fin. 507; City of Richmond v. Long's Adm'rs, 17 Grat. 375.
    The evidence in the case conclusively shows that due care was exercised by the corporation in the selection of all officers and agents, and the verdict could not have been different with that limited instruction. The court might properly have directed a verdict for the defendant upon that evidence under that law.
    “ A new trial ought never to be granted, notwithstanding some mistakes or even misdirection, or the giving or refusing irrelevant instructions, provided the court is satisfied that justice has been done, that a new trial ought to produce the same result, that the verdict is conformable to law and "evidence, and that upon the evidence no other verdict could properly have been found.” Hilliard on New Trials, 47 ; Johnston v. The State, 14 Ga. 55 ; Arrington v. Cherry, 10 Ga. 429, and cases cited; Harris Y. JDoe, 4 Blaclrf. 369 ; Morton v. Lawson, 1 B. Mon. 45; Bolán v. Peeples, 1 Brev. 109 ; Craham v. Bradley, 5 Humph. 476; Howard v. Miner, 20 Me. 325 ; French v. Stanley, 21 Me. 512 ; Freeman v. Rankins, 21 Me. 446 ; Reynolds v. Magness, 2 Ired. 26 ; Jewett v. Lincoln, 14 Me. 116 ; Pritchard v. Myers, 11 S. & M. 169.
    “ The verdict of a jury upon questions of fact, or the judgment of the court, acting in place of a jury, will not be disturbed, unless clearly and palpably wrong.” Mann v. Whitbeck, 17 Barb. S. C. 388.
    “ A verdict which is in accordance with the weight of the evidence, and with justice, ought not to be set aside on account of an erroneous instruction given by the court to the jury.’’’ In-graham v. South Carolina Ins. Co. 3 Brev. 522 ; Wylly v. King, Ga. Decis. part II. 7 ; Princeton f Kingston Turnpike Co. v. Culick, 1 Harr. 161; Chiles v. Boothe, 3 Dana, 566.
    “ When the verdict is conformable to the law and the evidence it will not be set aside merely because the court refused to give instructions which might have been properly given.” Breckenridge v. Anderson, 3 J. J. Marsh. 710-717; Rodgers v. Page, Brayt. Yt. 169; Ingraham v. S. C. Ins. Co. S. C. Const. Rep. 1812-16, 707.
    
      
      July 26, 1879.
   Dukbee, C. J.

This is an action on tbe case to recover damages for unskilful and negligent surgical treatment. The declaration sets forth that the plaintiff, having received an injury in his hand and fingers for which he was in need of surgical and medical treatment and care, gave himself into the charge of the defendant corporation, who were owners of a large hospital where they were in the habit of receiving persons needing such treatment and care, and of treating and caring for them for hire; and that, in consideration of being so received and treated with skill and care, he promised to pay the defendant corporation a reasonable compensation therefor, and that the defendant corporation, in consideration thereof, received him and promised to supply him with such surgical and medical treatment, skill, and attention as were necessary for the care and cure of his injuries. The declaration also sets forth that the corporation, its officers, agents, and servants, regardless of its and their duty, neglected properly to care for the plaintiff and his injuries, or to supply such medical and surgical treatment as was needed for their care and cure; but on the contrary conducted so carelessly, improperly, and unskilfully, that his hand and fingers by reason thereof became ulcerated and gangrenous, and likewise his arm, so that his life was endangered and his arm had to be amputated at or near the shoulder, &c. The declaration also contains counts charging the defendant corporation with a neglect of duty in other ways, and especially in that, regardless of the obligation incumbent on it, it neglected to provide careful, competent, and skilful officers, agents, and servants to care for, attend to, and treat him and his injuries.

On the trial to the jury the plaintiff submitted testimony to show that on the 3d of October, 1873, he had two fingers of his right- hand accidentally sawed off by a circular saw in a lumber yard where he was employed ; that he was immediately taken to the hospital, where he was received by the superintendent, and committed to the care of the surgical interne, who etherized him and undertook to dress his wound; that a profuse hemorrhage occurred, being occasioned, as the plaintiff claims, by the negligence or unskilfulness of the interne ; that the interne, after repeatedly trying in vain to arrest the hemorrhage by ligating the arteries, applied a tourniquet to the plaintiff’s arm so tightly as to stop circulation, and kept it applied for nearly seventeen hours, before the arrival of a surgeon who was skilful enough to ligate the arteries; that the plaintiff, in consequence, suffered excruciating pain, his arm being enormously swollen, and that afterward his arm mortified so that he had to have it amputated, and did have it amputated, after leaving the hospital, just below the shoulder joint.

The plaintiff also submitted testimony to show that his injury was such, especially in view of the hemorrhage, that some one of the experienced surgeons, attendant on the hospital, should have been immediately summoned; but that, in fact, no one of them was sent for until after nearly nine hours, and no one came until after nearly seventeen hours, though there were four, subject to call, residing and having their offices within a mile of the hospital. Further testimony was introduced by the plaintiff showing the treatment which he received both while he was in the hospital and after he left; showing the degree of care which was used in selecting the interne, and showing the charter of the corporation and the rules and regulations in force in 1873. It appeared that the plaintiff was taken from the hospital by his friends against the advice of the surgeon, and that when he left, October 22, 1873, a bill for board and attendance at |8.00 per week, amounting to $21.71, was presented to him in behalf of the defendant corporation, which was subsequently paid.

For the defendant corporation testimony was introduced to explain the management of the hospital generally, as well as the circumstances of the case of the plaintiff, and to show that there was no want of reasonable care, skill, and diligence on the part of the defendant corporation. Testimony was also introduced to show that the hospital was administered as a charity; that its income was derived mainly from its endowments and from voluntary contributions; that the physicians and surgeons attendant on the hospital, and the medical and surgical internes, gave their services without compensation, except that the internes, who were required to be constantly in attendance, had their board and lodging in the hospital, and that the bill which was rendered to the plaintiff was designed only to cover board, washing, warmth, and the services of nurses and ward tenders.

After the introduction of the testimony and the argument of the case to the jury, the court instructed the jury that no testimony had been submitted which entitled the plaintiff to a ver-diet for damages, and directed the jury to return a verdict for the defendant corporation. The ground of the instruction was, that jthe defendant corporation being the dispenser of a public charity, ¡¡and being dependent for its support, in a great measure, on voluntary grants and contributions, was, for reasons of public policy, exempt from liability for any negligence or unskilfulness on the part of its trustees, agents, servants, physicians, or surgeons, or of its medical or surgical internes; and that if any patient in the hospital suffered injury in consequence of any such negligence or unskilfulness, his remedy, if any he had, was to prosecute the person or persons who were directly chargeable with the negligence or unskilfulness, and not to bring his action against the defendant corporation,

The plaintiff contends that this instruction was erroneous, and that he was entitled to recover, first, because the defendant corporation delivered him over to an incompetent and unskilful interne, in selecting whom for his place the corporation did not exercise proper care ; second, because the interne, acting within the scope of his appointment, unskilfully and negligently cared for him ; third, because the interne caused his hemorrhage by his unskilfulness and negligence, and fourth, because the plaintiff being in a critical condition, it was the duty of the interne, under one of the rules of the hospital, to send immediately for some one of the attendant surgeons, and the duty of the corporation, under its charter, having established the rule, to put it in execution.

The court, in giving its charge to the jury, was guided by McDonald v. The Massachusetts General Hospital, 120 Mass. 432. In that case a hospital patient sued the corporation for unskilful surgical treatment by a house pupil, a functionary similar to a surgical interne. There was no evidence of any want of care in selecting the house pupil, and the court held that without such evidence the action could not be maintained, and at the same time strongly intimated an opinion that it could not be maintained even with such evidence, for the reason that the corporation could not be held to have agreed to do more than furnish hospital accommodations, which the plaintiff had had, and also for tbe further reason that any judgment recovered against the corporation could only be satisfied out of funds which, being dedicated to the charity, could not be lawfully used to pay it.

The Supreme Judicial Court of Massachusetts, in the case above cited, referred to Holliday v. St. Leonard, 11 C. B. N. S. 192, decided by the Court of Common Bench in 1861, as authority for the point that the corporation was not liable to be sued for the tort of the house pupil without proof of negligence in selecting him. The doctrine enounced in Holliday v. St. Leonard is, that a corporate or quasi corporate board or body, having a public trust or duty to discharge gratuitously, is not liable for the torts of its servants or employees if it is personally without fault. The plaintiff calls our attention to cases in which Holliday v. St. Leonard has been qualified or impugned. Mersey Docks v. Gibbs, 11 H. L. 686; L. R. 1 H. L. 93; Forman v. Mayor of Canterbury, L. R. 6 Q. B. 214; Coe v. Wise, L. R. 1 Q. B. 711; 5 B. & S. 440, 458. These cases hold that a board or body having work to do for the public gratuitously are liable for the torts of their servants or employees, the same as a private business corporation, provided they have funds or are in receipt of an income out of which a judgment against them can be satisfied. Winch v. The Conservators of the Thames, L. R. 7 C. P. 458 ; 9 Ib. 378. The authority of McLonald v. The Massachusetts General Hospital, in so far as it rests upon Holliday v. St. Leonard, is seriously impaired by these cases ; and the question arises whether it might not have been better decided on the other grounds suggested in the opinion of the court.

The other grounds suggested were two. The first was that the corporation could not be presumed to have agreed to do more than furnish hospital accommodations, and these the plaintiff had had. It is quite conceivable that a corporation might not agree to do more than furnish hospital accommodations, leaving the patient to find his own physician or surgeon. In such a case the corporation would plainly not be liable for the torts of the physicians or surgeons; for in such a case they would not be its servants and it would not have assumed any responsibility in their selection. But that is not this case. Here the physicians or surgeons are selected by the corporation or the trustees. But does it follow from this that they are the servants of the corporation? We think not. If A. out of charity employs a physician to attend B. his sick neighbor, the physician does not become A.’s servant, and A., if he has been duly careful in selecting him, will not be answerable to B. for his malpractice. The reason is, that A. does not undertake to treat B. through the agency of the physician, but only to procure for B. the services of the physician. The relation of master and servant is not established between A. and the physician. And so there is no such relation between the corporation and the physicians and surgeons who give their services at the hospital. It is true the corporation has power to dismiss them ; but it has this power not because they are its servants, but because of its control of the hospital where their sex-vices are rendered. They would not recognize the right of the corporation, while retaining them, to direct them in their treatment of patients.

But though the relation of master and servant cannot be said to exist between the hospital and the physicians and surgeons attendant on it, the hospital does nevertheless assume a responsibility, in that it uses its own judgment, or that of its trustees, in selecting them, and impliedly, therefore, undertakes to exercise reasonable care to get such as are skilful and trustworthy in their professions. A patient has a right to rely on the exercise of such care, and consequently if, through the neglect of the hospital to exercise it, he receives an injury, he is entitled to look to the hospital for indemnity, unless the hospital enjoys some extraordinary exemption from liability.

In the case at bar, however, the injury was not received from a physician or surgeon, but from a surgical interne, and it may be that a surgical interne stands on a different footing. There are some cases of minor importance in which the internes are allowed to act as physicians and surgeons ; and in such cases I think that their relation to the corporation does not differ from that of a visiting physician or surgeon. But the internes act in still another capacity. The corporation undertakes to furnish physicians and surgeons for all kinds of eases, including the most critical. It has a regular staff of physicians and surgeons. But inasmuch as these are not, like the internes, constantly in attendance at the hospital, they must frequently be sent for. The' corporation undertakes to send for them, and of course it must do it through an agent. Tbe internes are tbe persons appointed to perforin this duty for it. A rule of the hospital prescribes that in all cases requiring immediate and important action, in all doubtful oases, and in all cases requiring an immediate operation, the interne shall send for the surgeon of the day, and, if he cannot be found, for one of the other surgeons. Here then we have the relation of principal and agent, or master and servant. If the interne neglects to call the surgeon in the class of cases desig-! nated, his neglect is the neglect of the corporation. Now the plaintiff contends that his injury was such that under the rule a surgeon should have been immediately sent for, and that the in-5 terne’s neglect to do it cost him his arm. He also contends that! the corporation did not use proper care in selecting the interne, who was incompetent for his position, and thereby he suffered the injury complained of. He contends that he was entitled to recover on both these grounds, and if the evidence was sufficient to establish them, we think that he was entitled to recover on both grounds, unless the hospital enjoys some peculiar immunity.

This brings us to the important question whether the hospital does enjoy any peculiar exemption from liability. The claim that it enjoys such an exemption rests upon two grounds: to wit, on the ground of public policy, and on the ground that the hospital had no funds except such as are exclusively dedicated to the charitable uses for which it was established, and which therefore cannot be applied to indemnify a patient who has been injured by the negligence or malpractice of a physician or surgeon, or of a medical or surgical interne.

The first ground is the ground on which the plaintiff was nonsuited. The argument is that hospitals, like the Rhode Island Hospital, are a public benefit; but if they are liable for the torts of the physicians or surgeons attendant on them, or of the medical or surgical internes, or of their nurses and other servants, people will be discouraged from voluntarily contributing to their foundation and support, and therefore public policy demands that they shall be exempted from liability. In our opinion the argument will not bear examination. The public is doubtless interested in the maintenance of a great public charity, such as the Rhode Island Hospital is ; but it also has an interest in obliging every person and every corporation which undertakes the performance of a duty to perform it carefully, and to that extent, therefore, it has an interest against exempting any such person and any such corporation from liability for its negligences. The court cannot undertake to say that the former interest is so supreme that the latter must be sacrificed to it. Whether it shall be or not is not a question for the court, but for the legislature.

'The second ground is one of the grounds suggested in McDonald v. Massachusetts General Hospital. No authority was cited in that case except Holliday v. St. Leonard, previously mentioned. The defendants, however, have referred us to Feoffees of Heriot's Hospital v. Ross, 12 Cl. & Fin. 507, which is very much in point. Heriot’s Hospital was an eleemosynary foundation created under a will for the benefit of fatherless boys. The suit was in behalf of a boy who was alleged to have been illegally refused the benefit of it. The question was whether the action would lie against the trustees as such for damages for the refusal. The House of Lords held that the plaintiff had no right to indemnity out of the trust funds. Lord Cottenham was of the opinion that to give damages out of the trust fund would be to divert it from its proper purpose. Lord Campbell thought it would be contrary to reason, justice, and common sense to sanction the suit. Damages are to be paid,” he said, “ from the pocket of the wrong-doer, not from a trust fund.” Lord Brougham strongly expressed the same opinion.

The authority relied on to support the decision was a decision of the House of Lords in Duncan v. Findlater, 6 Cl. & Fin. 894. There the action was against trustees appointed under a public road act, to charge them in their quasi corporate capacity for an injury occasioned by the negligence of the men in making the road, and the House of Lords held that the action was not maintainable. The case resembles Holliday v. St. Leonard, and like it, in the light of the later decisions, it has no value as a precedent for any case where there are funds which can be applied to the payment of damages.

We have previously, in this opinion, cited the cases which limit the authority of Holliday v. St. Leonard. It may help us to consider the. leading case more in detail. The leading case is Mersey Docks v. Gibbs, 11 H. L. 686, decided in the House of Lords in-1865. Tbe action was against a quasi corporate board charged with tbe duty of keeping certain docks in order, and authorized in consideration thereof to collect tolls and dock rates. Tbe board bad no interest in tbe rates and tolls, being bound to expend them on tbe docks or in tbe payment of a debt incurred in building them. A vessel belonging to the plaintiff was injured in entering tbe docks in consequence of a neglect to keep them fit for navigation. Tbe House of Lords decided that tbe action for tbe injury would lie against tbe board, tbe plaintiff being entitled to indemnity out of tbe public fund. Tbe case was decided with great deliberation, tbe judges being summoned in. Mr. Justice Blackburn, alter advisement, delivered tbe unanimous opinion of all tbe judges who beard tbe case. The opinion was that such corporations, though acting without reward, are in their very nature substitutions, on a large scale, for individual enterprise, and that in tbe absence of • anything in tbe statutes which create them showing a contrary intent, it must be held that their liability was intended to be, to tbe extent of their corporate funds, tbe same as that of individual owners of similar works. He also remarked that, if tbe true interpretation of tbe statute is that it casts a duty on tbe corporation, not only to construct tbe works, but also to use reasonable skill and care in their construction and in their maintenance for use, there is nothing illogical in bolding that those who are injured by a neglect of tbe duty may maintain an action against tbe corporation, and be indemnified out of tbe funds vested in it by tbe statute. Tbe case of Duncan v. Findlater was cited by Mr. Justice Blackburn in bis opinion, and the language there used by Lord Cottenbam, which was chiefly relied on as authority for tbe decision of Feoffees of Heriot’s Hospital v. Ross, was expressly disapproved. It is remarkable, however, that tbe ease of Feoffees of Heriot’s Hospital v. Ross, though cited by counsel, does not seem to have attracted tbe attention of either Mr. Justice Blackburn or of tbe three learned lords who delivered concurring opinions.

The language used by Lord Cottenbam in Duncan v. Findlater was criticised by Lord Westbury more pointedly even than by Mr. Justice Blackburn. He said in effect that be supposed Lord Cottenbam regarded tbe funds of statutable boards as being in tbe nature of trust property, and bad tbe idea that trust property would be protected in equity from seizure and sale on execution for tbe torts of the trustees. He expressed the opinion that this belief was erroneous. “ It is much more reasonable,” he says, “ in such a case, that the trust or corporate property should be amenable to the individual injured, because there is then no failure of justice, seeing that the beneficiary will always have his right of complaint and- his title to relief against the individual corporators who have wrongfully used the name of the corporation.”

In all the English cases decided since the decision of Mersey Docks v. Gibbs, which we have seen, the cases of Duncan v. Findlater and Holliday v. St. Leonard, as authority for the broader doctrines declared in them, are uniformly regarded as overruled.

In view of these later decisions -the question here is, whether a charitable corporation, like the Rhode Island Hospital which holds its property for the charity, is more highly privileged than a corporation created for public purposes, which holds its property for such purposes; whether, in fact, because it holds its property for the charity, it is relieved from all responsibility for the torts or negligences of its officers, trustees, agents, or servants. We have come to the conclusion, after much consideration, that it is not. We understand the doctrine of the cases which we have just been considering to be this: that where there is duty, there there is, primd facie at least, liability for its neglect; and that when a corporation or quasi corporation is created for certain purposes which cannot be executed without the exercise of care and skill, it becomes the duty of the corporation or quasi corporation to exercise such care and skill; and that the fact that it acts gratuitously, and has no property of its own in which it is beneficially interested, will not exempt it from liability for any neglect of the duty, if it has funds, or the capacity of acquiring funds, for the purposes of its creation, which can be applied to the satisfaction of any judgment for damages recovered against it. We also understand that the doctrine is that the corporate funds can be applied, notwithstanding the trusts for which they are held, because the liability is incurred in carrying out the trusts and is incident to them. We do not understand, however, that the corporate property is all equally applicable. For instance, in the case of Mersey Docks v. Gibbs, it was not decided that the docks themselves could be resorted to, but only the un-applied funds which the board then had or might afterwards acquire. So in the case at bar; it may be that some of the corporate property, the buildings and grounds for example, is subject to so strict a dedication that it cannot be diverted to the payment of damages. But however that may be, we understand that the defendant corporation is in the receipt of funds which are applicable generally to the uses of the hospital, and, following the decision in Mersey Docks v. Gibbs, we think a judgment in tort for damages against the corporation can be paid out of them. Indeed, we cannot see why these funds are not as applicable to the payment of damages for tort as to the payment of counsel for defending an action for such damages. Both payments are to be regarded as incident to the administration of the trust.

Potter, J.,

concurring. I concur in granting a new trial but for reasons somewhat different from those given by the other members of the court.

The plaintiff sues the defendant for maltreatment by one of its surgeons, i. e. the interne, while he was at the hospital. He .alleges that the defendant corporation undertook to treat him by its agents and servants, and treated him so negligently and unskilfully that he lost his arm, &c., &c.

It is contended on the.- part of the defendant that it used proper care in the selection of the surgeon, which is all it is bound to do; that it undertook to provide shelter and nursing and free medical attendance, and no more; that it did not undertake to perform the duties of a surgeon, but only to place the plaintiff in charge of its surgeon ; and that on grounds of public policy, being a charitable corporation, dispensing without charge a public charity, and having no other than trust funds for the purposes of that charity, it cannot be held liable for the negligence of its unpaid servants.

The arguments of counsel' have been very able, but their researches have only discovered one case nearly in point, McDonald v. The Massachusetts Hospital, 120 Mass. 432.

We are therefore left to settle the case on general grounds.

And it seems to me that all that is requisite for the decision is the application of a few simple and generally acknowledged principles.

That a private person, acting without compensation, is in many cases liable for negligence, is well settled. In Shiells v. Blackburne, 1 H. Bla. 158, Lord Loughborough declared that “ If a man gratuitously undertakes to do a thing to the best of his skill where his situation or profession is such as to imply skill, an omission of that skill is imputable to him as gross negligence; ” and this holding, although perhaps not necessary to the decision of that particular case, has been sustained by all the decisions and text writers since. So Judge Story, Bailments, §§ 180, 182 a, lays down the law to be that where the man’s situation or employment does not necessarily imply any particular skill, he-is liable only for bad faith or gross negligence, if acting gratuitously; if his situation or employment implies ordinary skill or knowledge adequate to the undertaking, he will be responsible for any injury resulting from the want of exercise of that skill or knowledge.

And Dr. Wharton, after stating the cases, says that this is not only the doctrine of the common law, but was the doctrine of the old Roman law, and is that of the jurists of France and Germany of the present day. Wharton on Negligence, 2d edition, §§ 504, 640, 730. See also 1 Smith Lead. Cas. *294, *335, *337, *341.

The only difference between the case of a corporation and a private citizen is, that while a private person may do the service himself, the corporation cannot itself give the medicine or the treatment, but must do it through an agent. If a person should volunteer to pay for a physician selected by the sick person himself, there could of course be no liability. If the same person should send a physician gratuitously to a sick person, provided the physician was of reputable standing, there would be no good ground for holding the sender liable for the doctor’s negligence ; but suppose he should send a quack or an ignoramus, by whose treatment the patient should be seriously injured, it might well be questioned whether he ought-to be free from liability unless the patient knew the character of the person sent and the risk he was incurring.

But to go a step farther: Suppose any private person, from charity, undertook to furnish physicians gratuitously, and so advertised to the public, would it not be his duty to send persons of competent education and skill ? And would it not be negligence in him not to do so ? _

The cases are numerous where a person who holds out to the public his readiness to perform the duties resulting from any particular trade or employment, and who, instead of doing the particular work himself, sends a servant to do it, is held liable for the incompetence of his servant, or even for the carelessness of a competent servant. It is true that in most of these cases last mentioned, the master who is held liable not only pays the servant, but he expects pay from the person for whom the work is to.be done.

In the present case the services were gratuitous to the person injured, but the ageiit is indirectly compensated by the corporation; i. e. by the opportunities for acquiring skill, experience, reputation, and subsequent practice in the profession.

But a corporation can act in no other way than by agents. It is the corporation acting through them. On no other principle can corporations be held liable at all. Wharton on Negligence, §§ 279, 280. If this is sound we come back to the ground before stated. It is the same case as if the corporation were itself a physician and offered to perform the service gratuitously, in which case it would be held answerable for gross negligence.

If an individual, holding himself out as possessing particular skill in a particular branch of business, is so liable, even if his services are offered gratuitously, can there be any other rule for a corporation ? There is no principle of law and no analogy to justify any distinction.

The fact that the corporation is a charitable one can give it no greater exemption from liability than a charitably disposed individual could claim.

It is in no sense a public corporation. It has no governmental powers, no civil authority whatever. It may be, as an effective organization of charity, and as concentrating the efforts of individuals, a great public benefit. So railroads, banks, may be of public use, but still are private corporations.

But it is said that it is a quasi public corporation, because its object is public charity. So may be a college ; and so may be a churcb corporation which opens its doors and seats freely to all people. Still they are in law private corporations and treated as such; a mere aggregation of individuals and of individual effort for the more effectual carrying out of • some particular purpose : generally, it is true, with an exemption from private liability, but with perfect liability so far as their general property, i. e. property not held under special trusts, is concerned. This exemption from private liability is indeed one of the principal reasons for resorting to acts of incorporation. But to hold such corporations exempted from corporate liability is a very different thing.

And this remark, that it is a private corporation ’ and in no sense a public one, it may be well to keep in remembrance while examining some of the English cases to which we have been referred.

In the case of Duncan v. Findlater, 6 Cl. & Fin. 894, the defendants were trustees under a local act of parliament to build a certain road. By the language of the act the funds raised were to be applied to certain purposes and “ to no other purpose whatever,” and in reading the opinions, it is evident that the language of the act had considerable weight, although the lords do make remarks of a very general character. Here the object was a public one, and it was in the exercise of one of the ordinary powers of government.

In the case of Feoffees of Heriot’s Hospital v. Ross, 12 Cl. & Fin. 507, the head note lays down the rule broadly, that charity trust funds are not liable for breach of trust of the trustees. But on looking at the case we find that certain property had been given to the city of Edinburgh for the relief and education of fatherless boys, and the complaint was that the trustees had refused to admit a certain boy. This was the only question.

In this and the preceding case some very strong lairguage was used by Lord Cottenham and others as to the non-liability of such corporations. And this language is strongly criticised by Lord Westbury in Mersey Docks v. Gibbs, 11 H. L. 686, 732. Query, whether in the case of Heriot’s Hospital the managers ought not to have been personally liable.

In the case of Mersey Docks v. Gibbs, 11 H. L. 686, L. R. 1 H. L. 93, the docks corporation was created by acts of parliament for a public purpose, and was beld liable for the damages claimed. By § 134 of 6 Geo. IV. cap. 187, the masters, i. e. harbor masters and dock masters, were specially authorized to pay out of the rates levied under the act any damages occasioned by the negligence or misconduct of their officers and servants. The provision of itself might sustain the decision.

But in all these cases the discussion takes a wide range, and although profitable for instruction, it is rather difficult to discover what principles, if .any, are settled by them. They are well reviewed in Levingston v. Guardians of the Lurgan Union, I. R. 2 C. L. 202.

But it may be further contended that the corporation in this case does not offer to furnish the medical treatment directly,' but only to furnish the surgeons and the accommodations for the patients ; that this is all it engages to do; and this is the best light in which the case of the hospital can be placed.

But it seems to me that in this case, as in others, it is the corporation itself which treats the patient through its officers. They do not furnish physicians, but a physician, a regular officer or employee of the corporation ; they hold him out to the public as «jtheir physician, create a confidence in him, and thus in a measure warrant his competency.

In giving the opinion of the judges at the request of the lords, in Mersey Docks v. Gibbs, 11 H. L. 686, 707, Blackburn, J., takes the ground that as these corporations are merely substitutes for private enterprise, there is no reason why the substituted person should not be liable, and this opinion is approved by the lord chancellor in delivering the judgment of the lords. 11 H. L. 728.

If there had been several persons acting separately, each employing a portion of his property in furnishing a physician gratuitously, each would have been liable for negligence in the cases we have stated.

If each one takes the same amount of property and they join together and form a corporation to carry out the same object, why should the property be exempted in one case more than in the other.

The corporation is in fact a mere agency for effecting the same purpose more conveniently and economically.

Railroad corporations, like others, can only act through agents. The trustees or directors exercise the powers of the corporation in appointing these agents. Generally such corporations carry passengers for pay. But sometimes by agreement, for certain purposes, and sometimes by favoritism, passengers are carried free. In the first case there may be said to be a consideration or something equivalent to pay. But if the passenger is carried for no consideration whatever the rule is the same.

It might as well be argued in tbe case of such free passengers, and even in the case of paying passengers, that the corporation merely agrees to furnish proper cars and proper officers to run them, and that if it does this it is not liable.

But these corporations are held liable by the policy of the law, as common carriers, and because it is considered absolutely necessary for public safety. The lives and property of the passengers are intrusted to them and are under their control. And so here : the limbs and lives of patients are intrusted to the corporation, and although it acts gratuitously, it should for public [safety be held to the strictest responsibility.

The railroad company is bound to exercise proper care and is held liable for want of it. And there seems to be a stronger reason for the application of the principle in the present case, because, although it may be the habit of railroad officials to give their friends free passages, that is not the business for which the corporation was formed ; whereas in the present case gratuitous treatment is one of the most important objects, almost the principal object, for which the defendant corporation was created.

It is enough that confidence is tendered and accepted. That is a sufficient consideration ; and the fact that the service is rendered gratuitously is immaterial. “ The confidence induced by undertaking any service for another is a sufficient legal consideration to create a duty in the performance of it,” said Grier, J., citing Coggs v. Bernard, and 1 Smith Lead. Cas. *95 ; Philadelphia Reading Railroad v. Derby, 14 How. U. S. 468, 485; Wharton on Negligence, §§ 640, 641. The remarks of the last cited author in § 487 and the authorities there cited apply. If a person undertakes to do an act or discharge a duty by which the conduct of others may properly be governed, he is bound to do it in such a manner that those who act upon the faith of it shall not suffer from his negligence ; and this even if there was in the beginning no consideration for the promise.

The only safe ground, therefore, is to hold that the corporation is itself present, acting in and through its officer selected for the particular purpose, and is therefore liable to the same extent he would be himself; and in this case we have already stated the rule which governs the liability.

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 a partial exemption.

Petition grcMed.

Note. — TIxe case was subsequently settled by the defendant.  