
    Rudy v. Lakeside Hospital.
    
      Negligence — Nonliability of public charitable hospital — Patient ' delivered property to employe who surrendered same to impostor.
    
    (No. 19458
    Decided December 7, 1926.)
    Error to the Court of Appeals of Cuyahoga county.
    In the trial court plaintiff in error sued on a claimed breach of contract. She alleged that the defendant was maintaining and operating a hospital in the city of Cleveland; that she was severely injured by being struck by a street car, and was taken to the hospital by a police officer in a taxicab, she having at the time valuable jewelry upon her person; that, upon her arrival at the hospital, the defendant undertook by agreement to safely keep the jewelry and return it to her; and that in violation of that contract the defendant failed and refused to return her property to her upon demand. No allegations of negligence are contained in her statement of claim.
    In its defense to this claim the hospital answered, alleging that at all times it was a public and charitable organization not for profit, was without capital stock, never had or could declare dividends, was conducted and operated for the accommodation of sick and injured persons, and had always been conducted at a loss, the deficit' being made up by charitable gifts and bequests. It also averred that its funds and income had always been and would continue to be 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; that those not able to pay therefor were taken care of as a matter of public charity.
    It also appears, from concessions made by counsel, that the jewelry was deposited with the defendant and afterwards delivered by an employe of the hospital, without the authority or consent of the plaintiff, to some person who represented himself to be plaintiff’s son-in-law, but who was, in fact, an impostor and an entire stranger to her.
    Under the facts so presented to the trial court, the defendant’s motion for judgment on the pleadings and statement of counsel was sustained. That judgment was affirmed by the Court of Appeals, whereupon error was prosecuted to this court.
    
      Messrs. Howell, Roberts & Duncan, for plaintiff in error.
    
      Messrs. Dustin, McKeehan, Merrick, Arter S Steivart and Mr. C. M. Horn, for defendant in error.
   By the Court.

In her statement of claim the plaintiff relied upon an implied contract by way of bailment as a predicate for recovery. It contained no specific allegations of negligence, and it is contended that she had the right to sue either in tort for a negligent delivery, or for a breach of the bailment contract.

If this were a case of contract purely, one not involving wrongful conduct on the part of the institution’s employe, liability might attach. But this case presents a different aspect and is based upon an unauthorized and negligent delivery to an impostor.

There is a wide divergence of opinion in the various jurisdictions of this country regarding the liability of charitable institutions whose funds are provided by benevolences. 11 Corpus Juris, pp. 374-377. This court has held that a public charitable hospital is not liable for injuries to a patient resulting from the negligence of one of its employes. Taylor, Admr., v. Protestant Hospital Assn., 85 Ohio St., 90, 96 N. E., 1089, 39 L. R. A. (N. S.), 427. The only exception to the foregoing principle made by this court is that such charitable hospital is required to use reasonable care in the selection of its physicians, nurses, or attendants, in order to avoid liability for their negligence. Taylor v. Flower Deaconess Home and Hospital, 104 Ohio St., 61, 135 N. E., 287, 23 A. L. R., 900. In the first Taylor case, supra, there was also an effort to base liability upon a contractual relation arising from the acceptance by the hospital of the injured plaintiff as a pay patient; however, that phase of the case did not create a liability upon the part of the hospital, in the view of this court.

Under the theory of nonliability of charitable institutions adopted by this court, as heretofore indicated, we are unable to make any distinction between cases involving damages to the person of a patient and damages to his property, where such are caused by the wrongful act of an employe. We therefore affirm the judgment of the Court of Appeals, upon the authority of the two Ohio cases cited.

Judgment affirmed.

Marshall, C. J., Jones, Matthias and Day, JJ., concur.  