
    Sarah Noble, Plaintiff, v. Hahnemann Hospital of Rochester, Defendant.
    Fourth Department,
    May 2, 1906.
    Negligence—when hospital corporation not liable for negligence, of driver of ambulance—when such corporation is agent of city.
    A hospital corporation not organized for profit hut for benevolent purposes and supported by contributions, revenue from those patients who pay for treatment, and by moneys received from a municipality, is not liable for the negligence of its servants under the doctrine of respondeat superior.
    
    Hence, one who is injured through the negligence Of the driver of an ambulance maintained by such a corporation cannot recover against the corporation/ This is so although the corporation receives compensation from some of its patients for it still falls within the definition of a charitable institution.
    Moreover, as the ambulance was responding to a call from the police department and performing a duty, imposed upon it by the city, the hospital was at the time the representative of the city, and like the latter was not liable for the negligence of its servants in'pefforming a service essential to the pnblie peace and welfare.
    Motion fór a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, a verdict for the defendant having been rendered by direction of the court after a trial at the Monroe Trial Term in January, 1905.
    
      John D. Lynn, for the plaintiff.
    
      James 8. Havens, for the defendant.
   Spring, J.:

The plaintiff was sitting in a wagon on South avenue in the city of. Rochester on the 23d of September, 1902, while her husband was delivering produce. The wagon Was reasonably close tb the curb, With plenty of room for a team to pass it in the street. An ambulance of the defendant,' drawn by one horse, in charge of one of the defendant’s employees, responding to a hurry call for a person needing immediate medical assistance, was passing rapidly along the street and collided with the wagon occupied by the plaintiff, overturúed it, throwing her to the pavement and inflicting injuries upon her. There was sufficient proof of want of cafe by the driver and freedom from negligence on the part of the plaintiff to require the submission of these questions to the jury, except for other facts which exempt the defendant from liability.

The defendant was incorporated pursuant to chapter 95 of the Laws of 1889. That act is a general one for the organization “ of .hospitals, infirmaries,' dispensaries- and homes for invalids' or aged and indigent persons.” A corporation formed by virtue of this act does not require any capital stock and it is not a money-making venture or a business project. The managers serve Without compensation. (Laws of 1889, chap. 95, § 9; Memb. Corp. Law [Laws of 1895, chap. 559], § 12.) The certificate incorporating the defendant states : “We, the undersigned, do hereby certify that we desire to form a corporation for the purpose of erecting, establishing, maintaining -and operating a hospital for the reception, care, maintenance, giving of medical and surgical advice, aid and -treatment to persons afflicted with maladies or physical in juries or weaknesses. * * * That the object for which this corporation is, formed is the erecting, establishment, maintenance and .operating of the Homeopathic Hospital, a medical dispensary in the City of Rochester, the practice of which shall be forever based on the ¡minciples of Homeopathy.”

The hospital of the defendant is located .in the city of Rochester and has sufficient capacity to take care 'of about fifty patients. Some of these patients pay for the services they receive, some pay nothing, partial support for others is furnished by the city or county-of Monroe. The hospital is supported by donations, contribu tiohs, legacies, revenue from pay patients,. money received from city and county for public patients, and the ambulance money, of course, is used as other moneys in the hospital are used to carry on its general work.”

The directors and managers receive no compensation for their services and the medical staff, comprising twelve or fifteen physicians, also get no pay from the defendant, and the institution is not self-supporting. An ambulance service is connected with the hospital. Prior to 1896 -the city of Rochester maintained its own ambulance service. At that time its common council entered into an agreement with each of the four hospitals in the city to take charge of that service, paying each of them $1,000 a year out of the poor fund, and the defendant was one of those thus employed by the city and the employment has continued in pursuance of the agreement.

The defendant being a benevolent institution and no financial benefit accruing to its directors or managers, we think the doctrine of respondent superior, does not apply. (Corbett v. St. Vincent's Industrial School, 79 App. Div. 334; affd., 177 N. Y. 16; Collins v. N. Y. Post Graduate Med. School, 59 App. Div. 63; Benton v. Trustees of Boston City Hospital, 140 Mass. 13; Downes v. Harper Hospital, 101 Mich. 555; 25 L. R. A. 602.)

In each of the cases cited the injury was inflicted on the person while in the institution either involuntarily an inmate or there for some other specific purpose. A master is liable for the negligence of his servant because he employs him expecting to derive profit from the employment. The defendant and similar institutions are not liable for negligence because they are organized for benevolent or charitable purposes. There would, therefore, seem to be no distinction whether the seryanfc, a competent man for the service in which he is engaged, carelessly injures one while in the hospital or in the street.

Even though the defendant received compensation for some of its patients, it still falls within the definition of a charitable institution. (People ex rel. New York Inst. for Blind v. Fitch, 154 N. Y. 14; Corbett v. St. Vincent's Industrial School, supra; Downes v. Harper Hospital, supra.)

Passing that, however, the defendant at the time of the collision was responding to a call from the police department of the city. It was performing a duty imposed upon the city as one of its governmental functions, but intrusted to the defendant. The defendant was representing the city and was no more liable for the negligence of its driver than the city would be for an assault committed by a policeman in the discharge óf his duty, or if a fireman in answering-an alarm of fire should run over a traveler in the street. (Dillon Mun. Corp. [4th ed.] §§ 975, 976; Corbett v. St. Vincent's Industrial School, 177 N. Y. 16 ; Maxmilian v. Mayor, 62 id. 160; Lefrois v. County of Monroe, 162 id. 563.)

The municipality iny its corporate capacity -is not benefited specially by the exercise of the sovereign power in the cases instanced, - but is performing a service essential for the welfare of the public in preserving the peace or in preventing the destruction of property, or some ‘other kindred obligation, ,and public policy demands that the city be given immunity from liability for the want of care of those who are actually" performing the duty. The rule is not altered because defendant, instead of the city, had Charge of the ambulance, ", " - - .

In Corbett v. St. Vincent's Industrial School (supra) the defendant was-a charitable industrial asylum, but received minors convicted of crimes, and it Was held exempt from liability'for injury resulting from the negligence of its managers.

The defendant is-the agent or representative of. the city, and the ; same principle which gives freedom-from liability to the city is also-effective to exonerate the hospital corporation.

The plaintiff’s exceptions should be overruled, with costs and disbursements of this appeal, and judgment ordered for the-defendant on the verdict,, with Costs.

All concurred.

Plaintiff’s exceptions overruled, motion for new trial denied, with costs, and judgment- ordered for the defendant on the verdict, with costs.  