
    Howard, Admr., v. Children's Hospital of the Protestant Episcopal Church.
    (Decided March 10, 1930.)
    
      Messrs. Davies, Hoover & Beall, for plaintiff in error.
    
      Messrs. Waite, Schindel & Bagless and Mr. Herbert Shaffer, for defendant in error.
   Ross, J.

This case comes into this court on error from the court of common pleas of Hamilton county, wherein judgment was rendered for the defendant, defendant in error in this court.

Suit was brought by William Gf. Howard, the administrator of a three months old baby, to recover on behalf of its next of kin; under the provisions of Section 9989, General Code, from the defendant below, which conducted a children’s hospital.

The second defense of the answer alleged that the defendant was incorporated under the laws of Ohio, and is a charitable institution, not for profit; that it never had or could declare dividends; that it had conducted and operated its hospital for the accommodation of sick and injured children, and that it has always been open to all children not afflicted with contagious diseases who apply for and need its benefits, as far as the accommodations of the hospital would permit; that said hospital has always been conducted at a loss, and that the deficit has been made up by charitable gifts and bequests; that the income of the organization is derived from donations, devises, gifts, and bequests received from benevolent persons, except such moneys as might be received from persons able to pay for their lodging, services, treatment, and care at the hospital; and that those who are not able to pay have been, and now are, taken care of as a matter of public charity; and that the entire income of the defendant is used solely in the management of said hospital; and that it has no surplus on Rand.

To this second defense the plaintiff demurred. The demurrer was overruled, and, the plaintiff not desiring to plead further, judgment was entered in favor of the hospital.

It is contended that the provisions of Section 9989, General Code, do not apply to a charitable institution such as the defendant below. The provisions of this section are as follows:

“A person, association, or company, having unlawful possession of the body of a deceased person shall be jointly and severally liable with any other persons, associations, and companies that had or have had unlawful possession of such corpse, in any sum not less than five hundred nor more than five thousand dollars, to be recovered at the suit of the personal representative of the deceased in any court of competent jurisdiction, for the benefit of the next of kin of deceased.”

The language of the section is broad enough to include the defendant hospital.

It is urged, however, that, because under certain decisions of this state charitable institutions are relieved from the application of the rule of respondeat superior, by analogy the liability imposed by the statute does not apply to the defendant below. We are unable to perceive this analogy, especially in view of the fact that, under the decisions brought to our attention, charitable institutions, such as hospitals, are held responsible to those injured through lack of care in the selection of employees, through whose negligence patients have been injured, when the unskillfulness and unfitness of such employees were known, or should have been known, to the management of the hospital. Taylor v. Flower Deaconess Home and Hospital, 104 Ohio St., 61, 135 N. E., 287, 23 A. L. R., 900; Rudy v. Lakeside Hospital, 115 Ohio St., 539, 155 N. E., 126; Duvelius v. Sisters of Charity of Cincinnati, post, 171, 174 N. E., 256. See, also, Sisters of Charity v. Duvelius, 123 Ohio St., 52, 173 N. E., 737.

The amended petition alleges that “the said hospital by its agents, then and there, acting in the course of their employment, refused to deliver possession.” Defendant, being a corporation, though not for profit, was, of necessity, compelled to act through agents, and, if duly authorized and acting within the scope of their employment, such agents represented the will of the management of the organization, and, through it, the corporation, and the corporation must therefore answer for their acts if they were in violation of the statute law of this state.

It can hardly be imagined that the Legislature did not have in mind hospitals supported by benevolence and administering charity when enacting the statute quoted. No exception of such institutions is made. It must have been foreseen that such organizations would come within the operation of the statute which creates a liability upon any person, association, or company having unlawful possession of the body of a deceased person. The limits of this liability are fixed by the statute, which also makes it unnecessary on the part of the administrator, representing the next of kin, to prove actual damage at least up to the extent of the minimum provided in the statute, $500.

The statute in no way involves the question of negligence on the part of employees.

The second defense is predicated upon the theory that, simply because the defendant is a charitable organization, not for profit, there is no liability upon it for any of its acts in violation of the statute. We cannot indorse this position.

The demurrer to the second defense should have been sustained.

The judgment is reversed, and the cause is remanded for further proceedings according to law, with instructions to sustain the demurrer to the second defense of the answer.

Judgment reversed and cause remanded.

Cushing, P. J., and Hamilton, J., concur.  