
    Taylor, Administrator, v. The Protestant Hospital Association.
    
      Public charitable hospital — Conducted under private management— Not liable for injuries to patient — Resulting from negligence of nurse, when.
    
    1. The fact that a public charitable hospital receives pay from a patient for lodging and care does not affect its character as a charitable institution, nor its rights or liabilities as such in relation to such a patient.
    2. A public charitable hospital organized as such and open to all persons although conducted under private management is not liable for injuries to a patient of the hospital resulting from the ' negligence of a nurse employed by it.
    (No. 11940 —
    Decided November 21, 1911.)
    Error to the Circuit Court of Franklin county.
    Plaintiff in error brought suit in the common pleas court of Franklin county. His petition alleges in substance his appointment and qualification as administrator, the incorporation of defendant under the laws of Ohio, and that it maintains and operates a hospital at the city of Columbus, Ohio, for hire and reward. That defendant received said Nancy M. Taylor at its hospital as a pay patient and agreed for a valuable consideration to furnish her with board, lodging and nursing, provide an operating room and table and assist in and about an operation to be performed on her by a certain named surgeon. That defendant provided for said operation certain gauze sponges necessary to be used in said operation, which consisted of two abdominal incisions, and that defendant provided one of its employes to assist in said operation, to-wit: a nurse whose duty it was to keep account of the sponges so provided for use of the surgeon. That the nurse negligently failed to keep a proper count of the sponges which had been used in the operation and that by reason of - her negligence one of the sponges which had been used was left in the body of the decedent and caused her death to the damage of plaintiff and the next of kin of decedent;, for which judgment is prayed. The first defense of the answer of defendant admits appointment of plaintiff as administrator, the incorporation of defendant, that deceased was received at the hospital as a pay patient, and that defendant agreed for ten dollars a week to furnish her with board, lodging and nursing; that an operation was performed on her by the surgeon named; that it provided certain gauze sponges for the operation and one of its employes, a nurse, to assist in said operation, and denied the other allegations in the petition.
    The material portion of the second defense is as follows:
    “Defendant says that it is now, and has been ever since it was organized, a public and charitable corporation; that it was incorporated and organized, and has been operated, exclusively for the purpose of providing hospital accommodations for the sick and injured; and that it never has had, has not now, and cannot have, any capital stock; that it never has declared, and cannot declare dividends; and that it never made, and cannot make, any profits, either for the corporation or its members; that its funds and income have always been, and will continue to be, derived from the rents, donations, devises and bequeaths, moneys and supplies from, and by, benevolent persons; that such funds and income have been heretofore used for the erection, support and maintenance of a public and charitable hospital for the sick and injured, and they will have to be used in the future for the improvement of said hospital, and the support and maintenance of the sick and injured therein lodged; that the persons who have heretofore made such donations, grants, devises, bequests and subscriptions, are so numerous that they could not be stated in this pleading.
    “Defendant further says that said hospital has always been, and is now, open to all persons who apply for its benefits and accommodations, as long as it has rooms to accommodate them.
    “That it has had, and now has six wards which will accommodate forty-five patients and which are for the occupation of patients who are gratuitously lodged and cared for, and it has had, and now has 45 rooms for those who are able to and willing to pay for lodging and care a reasonable compensation, and the income so received from pay patients has always been used to support and maintain the said hospital.
    “Defendant further says that the said Nancy M. Taylor engaged and agreed to pay this defendant ten ($10.00) dollars per week for her boarding and nursing during the time she was at the hospital. She occupied a room, and was furnished board and nursing from the 25th day of May, until the 30th day of June, 1899, for which she paid the hospital the sum of $51.40. That such sum so paid to this defendant was wholly inadequate as compensation for the board and nursing so furnished to the said Nancy M. Taylor.”
    Plaintiff in error filed a general demurrer to the second defense which was overruled by the trial court, and plaintiff not desiring to plead further judgment was entered for defendant. This judgment was affirmed by the circuit court and error is prosecuted to this court by the plaintiff to reverse the judgments of the courts below.
    
      Mr. Ulric Sloane, for plaintiff in error.
    It may be conceded at the outset that the greater weight of authority, outside of Ohio, falls upon defendant's side of this question. Powers v. Homeopathic Hospital, 109 Fed. Rep., 294, 101 Fed. Rep., 896.
    The fact that the hospital does not make any money or seek to make any profit, does not release from liability. Newcomb v. Boston Protective Dept., 151 Mass., 215; Chapin v. Y. M. C. A., 165 Mass., 280.
    It was ruled, however, in McDonald v. Hospital, 120 Mass., 432, that a corporation endowed by funds from the state and required to minister to a certain number of indigent patients and subject to visitation from the state, and maintaining a hospital, was not liable for the torts of its servants in and about administering said hospital.
    This case relies upon Holliday v. St. Leonard's, 11 C. B., N. S., 192, which was overruled by the Flouse of Lords in Mersey Docks, etc., v. Gibbs, L. R., 1 H. L., 94, and repudiated as an authority by the court in Queen's Bench in Foreman v. Canterbury, L. R., 6 Q. B., 214, decided in 1871.
    For the purpose of our argument it is sufficient to discuss the narrow question as to whether an eleemosynary corporation is amenable to process; whether it can be sued at all. It would certainly seem in Ohio that any corporation could be sued. By incorporation it acquires the right and power “to sue and be sued, to contract and to be contracted with.''
    But is it exempt from liability arising ex delicto? Goodloe v. Cincinnati, 4 Ohio, 500; Dayton v. Pease, 4 Ohio St., 80; Dunn v. Agricultural Society, 46 Ohio St., 96.
    Is the defendant exempt from the doctrine of respondeat superior? The exemption from liability upon this ground is maintained in Hearns v. Hospital, 66 Conn., 98, and distinctly disapproved in Powers v. Hospital, 109 Fed. Rep., 294.
    If such an exemption can be claimed, it must rely for support upon some of the English cases, and indeed the ruling in the Connecticut case is predicated upon Holliday v. St. Leonard’s, 11 C. B., N. S., 192, and Hall v. Smith, 2 Bing., 156.
    
      Hall v. Smith, supra, might well have been decided upon the same principle as ruled our supreme court in deciding Commissioners v. Mighels, 7 Ohio St., 110; but the judgment was placed upon another ground, to-wit, that the maxim of respondeat superior could not be applied where a master gained no profit or advantage from the acts of the servant.
    To a similar effect is the decision of Duncan v. Findlater, 6 Clark & F., 894.
    
      These latter cases are both overruled by the House of Lords in Mersey Docks, etc., v. Gibbs et al., L. R., 1 H. L., 93.
    In Heriot’s Hospital v. Ross, 12 Clark & F., 507, no question arose concerning the application of the. doctrine of respondeat superior.
    
    In Foreman v. Canterbury, L. R., 6 Q. B., 214, the doctrine of Holliday v. St. Leonard’s, 11 C. B., N. S., 192, to the effect that there is an exception to the rule of respondeat superior when the servant is employed by a corporation for public or charitable purposes, is distinctly repudiated.
    Very late English cases leave us absolutely no discretion about deciding that in England there is no exception to the rule of respondeat superior, notwithstanding the earlier cases now relied upon by American courts. Donaldson v. Commissioners, 30 N. B., 279; Gilbert v. Trinity House, 17 Q. B. Div., 795.
    All the later English cases now follow the doctrine of Mersey Docks, etc., v. Gibbs, L. R., 1 H. L., 93.
    
      Messrs. Pugh & Pugh, for defendant in error.
    At first, the basis of the doctrine of respondeat superior was either the command or consent of the master. Subsequently it was located on another foundation, and this was defined by Lord Broughman in Duncan v. Findlater, 6 Clark & F., 498.
    The four essential elements of a case subject to the application of the doctrine of respondeat superior are these: (1) The master must have employed the servant, and thereby have set the whole thing in motion; (2) the act of the servant must have been done for his benefit; (3) the servant must have acted under the master’s direction; and (4) the act of the servant must have been done in the course of his employment.
    In the case at bar the missing elements are the second and third. The hospital is conducted by trustees, as the law requires. All the property belonging to the defendant in error is held by them as trustees; the legal title to it is in them as trustees; the real owner of the property is the public; the hospital is conducted for the benefit of the public; the real owner has no part in the selection of the employes.
    The defendant in error, being a charitable corporation and operating a charitable hospital, at the time, was not answerable for the negligence of its employes; its only liability was for the selection of its employes with reasonable care. McDonald v. Hospital, 120 Mass., 432; Hearns v. Hospital, 66 Conn., 98, 33 Atl. Rep., 595, 31 L. R. A., 224; Conner v. Sisters of the Poor, 7 N. P., 514; Stewart’s Legal Medicine, Section 96.
    The decedent’s acceptance of the bounty of the defendant in error raised an implied agreement on her part that the defendant in error should not be liable for the acts of its employes. Downes v. Hospital, 101 Mich., 555, 25 L. R. A., 602, 45 Am. St. Rep., 427.
    The defendant in error cannot be liable under the doctrine of respondeat superior because two necessary and fundamental elements of that doctrine are lacking, namely, (1) that defendant in error derived a benefit or advantage from the acts, the service of its employe, the nurse, and (2) that the defendant in error alone set the thing in motion in connection with which the injury occurred. Hall v. Smith, 2 Bing., 156.
    The leading English case, Holliday v. St. Leonard’s, 11 C. B., N. S., 192, sustains our proposition.
    The defendant in error is not liable because it carried on the hospital, without any profit, either to itself or its members, and solely for the benefit of the public. Farrigan v. Pevear, 193 Mass., 147, 78 N. E. Rep., 855, 7 L. R. A., N. S., 481.
   Johnson, J.

The question presented by the demurrer to the second defense of the answer is, whether under the facts set out in that defense, the defendant is liable for the negligence of the nurse in leaving the sponge in the body of the deceased. More definitely: Do the averments that the defendant is a public and charitable corporation engaged in operating, maintaining and supporting a public charitable hospital in the manner and for the purposes set forth, exempt defendant from liability for the negligence of the nurse in connection with the operation on the decedent at the time she was a pay patient of the hospital?

This question has been decided in some other jurisdictions, and counsel have rendered valuable assistance by able and exhaustive briefs.

Defendant contends that the judgments of the courts below may be sustained on all or any of several grounds, the first of which is, that being a charitable corporation operating a charitable hospital it was not liable for the negligence of its employes if such employes were selected with reasonable care. The position of plaintiff is that the doctrine of respondeat superior applies, and should be enforced notwithstanding the character of the corporation or the nature of its undertakings, and that having accepted deceased as a pay-patient, a contractual relation existed between the parties which imposed obligations on the defendant different from those to one who did not sustain such relation. Section 3240, Revised Statutes, provides for the election of trustees of a corporation such as defendant and Section 3261, Revised Statutes, provides that the trustees of a corporation created other than for profit shall be personally liable for all debts of the corporation contracted by them.

There is a direct allegation in the answer in this case that defendant is a public and charitable corporation maintaining a public and charitable hospital. We think this hospital owned and operated in the manner set out is a public charity and this without reference to whether some of the patients are what are termed pay patients or not.

In Gerke v. Purcell, 25 Ohio St., 229, the court declare: “The fact that the use of property is free is not a necessary element in determining whether the use is public or not. If the use is of such a nature as concerns the public, and the right to its enjoyment is open to the public upon equal terms, the use will be public, whether a compensation be exacted or not.”

In McDonald v. Massachusetts General Hospital, 120 Mass., 432, the corporation, from the description of its objects and the manner of its creation and operation, was similar to the defendant in this case. The court say in deciding the case: “The fact that its funds are supplemented by such amounts as it may receive, from those who are able to pay wholly or entirely for the accommodation they receive, does not render it the less a public charity. All sums thus obtained are held upon the same trust as those which are the gifts of pure benevolence. * * * If, however, any contract can be inferred from the relation of the parties, it can be only on the part of the corporation that it shall use due and reasonable care in the selection of its agents. * * * The liability of the defendant corporation can extend no further than this; if there has been no neglect on the part of those who administered the trust and control its management, and if due care has been used by them in the selection of their inferior agents, even if injury has occurred by the negligence of such agents, it can not be made responsible. The funds entrusted to it are not to be diminished -by such casualties, if those immediately controlling them have done their true duty, in reference to those who have sought to obtain the benefit of them.”

In Hearns v. Waterbury Hospital, 66 Conn., 98, the court state that the only question, was the liability of the defendant for the negligent conduct of physicians and nurses employed by it, and in the selection of whom it has exercised due care. In this case there is a very full discussion of English and American cases touching the question and the conclusion arrived at was that the hospital corporation was not liable, on grounds of public policy, for injuries caused by personal neglect of duty by a servant whom it has selected with due care.

The plaintiff in Powers v. Mass. Homeopathic Hospital, 109 Fed. Rep., 294, was a pay patient and was injured by the negligence of a nurse in placing a rubber bag full of hot water against her side, burning her. Her counsel contended as counsel for plaintiff in this case contend, that she being a pay patient, the hospital was liable because she was not the recipient of its charity, but the court denied the relief and say: “In our opinion

a paying patient in the defendant hospital, as well as a non-paying patient seeks and receives the services of a public charity.”

Liability to a pay patient was denied in Downes v. Harper Hospital, 101 Mich., 555, and one of the grounds on which the court put its decision was that decedent having accepted the benefit of the charity did so on the understanding that the fund could not be diverted by the torts of the managers of the fund or their employe. The court say: “The fact that patients who are able to pay are required to do so does not deprive the defendant of its eleemosynary character nor permit a recovery on account of the existence of the contract relations.”

Other cases in which the same conclusion was arrived at, some of the courts adopting a somewhat different line of reasoning, are: Farrigan v. Pevear, 193 Mass., 147; Fire Ins. Patrol v. Boyd, 120 Pa. St., 624; Union Pac. Ry. Co. v. Artist, 60 Fed. Rep., 365.

Judge Stewart in his excellent work on legal medicine, Section 96, after an examination of the cases on the subject says: “The doctrine of the Massachusetts cases may be said to be the law followed by other states and is the proper legal view to take of this question, the reasoning of the court being so sound as to seem irrefutable.”

Counsel for plaintiff suggests that some of the American cases are predicated on the English case Holliday v. Vestry of St. Leonard’s, 11 C. B., (N. S.), 192, and some other cases which he insists have been impliedly repudiated by the later case of Mersey Docks v. Gibbs, L. R., 1 H. L., 93, which enforced the doctrine of respondeat superior.

We think this contention is not sound because the company in the latter case was a trading company and not a public charity in the sense that defendant here and similar corporations are. Mr. Justice Blackburn who gave opinions in the cases referred to, said in Mersey Docks v. Cameron, 11 H. L., 465: “Whatever may be the law as to exemption of property occupied for charitable purposes it is clear that the docks in question can come within no such exemption.”

But even if it appears that the greater weight of authority outside of Ohio falls against his view, counsel for plaintiff insists that such authority is not in harmony with the established doctrine in this state, and refers to the cases of Smith v. Cincinnati, 4 Ohio, 500-514; Dayton v. Pease, 4 Ohio St., 80; Dunn v. Agricultural Society, 46 Ohio St., 96; Toledo v. Cone, 41 Ohio St., 149; Murphy, Admr., v. Holbrook, 20 Ohio St., 137. We do not think these cases sustain plaintiff’s view of the question made by this answer. Smith v. Cincinnati, Dayton v. Pease, and Toledo v. Cone, were cases in which the injury was done by employes of the cities, in the performance of public works, undertaken for the benefit of the. cities and in the exercise of powers and duties granted and imposed on them as municipal corporations.

Of course under familiar rules they were liable for the wrongful acts of their servants.

In Dunn v. Agricultural Society the fair grounds were kept and the fair conducted not as a thing free to the public; Judge Williams in declaring the judgment of the court says as to the rule of exemption from liability that “it has no application to corporations called into being by the voluntary action of the individuals forming them for their own advantage, convenience or pleasure.”

In Murphy v. Holbrook the receivers of a railroad company were held liable for injuries to plaintiff’s intestate, and it was held to be “no defense in such action that the receiver was a public officer or that he was an agent or trustee.”

But the receivers of a railroad company or other corporation hold the property in trust for the benefit of the company and its creditors, and when operated by the receivers under order of court, the object is to preserve the property and if possible earn something for the benefit of the company and its creditors.

It is not an enterprise to serve and benefit the public solely. There is disclosed in some of the cases and in the argument for defendant a singular disposition to question the fundamental soundness of the doctrine of respondeat superior. We are not disposed to lend support to such tendency.

Experience has shown that the ends of justice are best secured by holding the master responsible for injuries caused by the wrongful acts of his servant done in the prosecution of his private ends and for his benefit.

Doubtless the rule will be extended to meet the requirements of manifold new conditions brought about by growth and advance. Courts are constantly confronted with the necessity of extending established principles to new conditions. But in this case it is sought to extend the rule to masters different from others and who do not come within its reason, and to hold a public charity involving no private profit responsible for the negligence of servants employed solely for a public use and a public benefit. We think such extension is not justified. Public policy should and does encourage enterprises with the aims and purposes of defendant and requires that they should be exempted from the operation of the rule.

We think there is no error in the record and the judgments of the courts below are affirmed.

Judgment affirmed.

Spear, C. J., Davis, Shauck, Price and Donahue, JJ., concur.  