41 though as to the last named the courts are not in accord.40 A different result will not be reached because the hospital accepts payment from patients able to afford it, or the university requires its students to pay tuition fees,12 or the industrial school receives county aid and a small sum from the sale of its surplus products, since it is the character of the institution itself which controls, which is not affected by such incidental additions to its revenues from the trust fund. 44 43 The selfish motives of the donor will not alter the situation. The true test, as has been seen, is whether the purpose of the enterprise is charitable, in that it is not to acquire gain. A hospital or medical department maintained by a railroad company, or supported by the contributions. of the employer and its employés,15 is none the less charitable because the company might have thought that its operation would protect it from excessive claims for damages; nor will a steamship company, which exercised due 40 Contra: Newcomb v. Boston Protective Department, 151 Mass. 215, 24 N. E. 39, 6 L. R. A. 778; Coleman v. Fire Ins. Patrol of New Orleans, 122 La. 626, 48 South. 130, 21 L. R. A. (N. S.) 810, 16 Ann. Cas. 1217. 41 Jensen v. Maine Eye & Ear Infirmary, 107 Me. 408, 78 Atl. 898, 33 L. R. A. (N. S.) 141; McDonald v. Massachusetts General Hospital, 120 Mass. 432, 21 Am. Rep. 529; DOWNES v. HARPER HOSPITAL, 101 Mich. 555, 60 N. W. 42, 25 L. R. A. 602, 45 Am. St. Rep. 427, Chapin Cas. Torts, 95; Taylor v. Protestant Hospital Ass'n, 85 Ohio St. 90, 96 N. E. 1089, 39 L. R. A. (N. S.) 427; Gable v. Sisters of St. Francis, 227 Pa. 254, 75 Atl. 1087, 136 Am. St. Rep. 879. But where the hospital has undertaken to supply a competent nurse for whose services the plaintiff has agreed to pay, an action may be maintained for breach of the contract. Ward v. St. Vincent's Hospital, 39 App. Div. 624, 57 N. Y. Supp. 784. 42 Parks v. Northwestern University, 218 Ill. 381, 75 N. E. 991, 2 L. R. A. (N. S.) 556, 4 Ann. Cas. 103. 43 Corbett v. St. Vincent's Industrial School, 79 App. Div. 334, 79 N. Y. Supp. 369, affirmed 177 N. Y. 16, 68 N. E. 997. 44 Eighmy v. Union Pac. Ry. Co., 93 Iowa, 538, 61 N. W. 1056, 27 L. R. A. 296. 45 Barden v. Atlantic Coast Line Ry. Co., 152 N. C. 318, 67 S. E. 971, 49 L. R. A. (N. S.) 801; Richardson v. Carbon Hill Coal Co., 10 Wash. 648, 39 Pac. 95. 46 Union Pac. Ry. Co. v. Artist, 60 Fed. 365, 9 C. C. A. 14, 23 L. R. A. 581. And see Fire Ins. Patrol v. Boyd, 120 Pa. 624, 15 Atl. 553, 1 L. R. A. 417, 6 Am. St. Rep. 745. care in the selection of a ship's surgeon, be held accountable for the latter's negligence."7 48 It has been asserted, however, that the true basis of the general doctrine of nonliability is not to be found in the necessity of preserving a trust fund intact, but rather in an acquiescence therein by all persons who accept the benefits, thus spelling out a waiver by such persons of any responsibility of the institution for the torts of its servants. though this reasoning has not gone unquestioned. It has therefore been held, that, as no such acquiescence can be attributed to an outsider, a recovery may be allowed in his favor, 50 The application of the general doctrine to a corporation akin to, but not among, those already enumerated, may be a matter of some difficulty, since, though there may be no division of profits, it may not be purely charitable. A corporation organized partly for social purposes,51 and a cemetery association,"2 have been held to be not within the exempted class. 47 Laubheim v. De Koninglyke N. S. Co., 107 N. Y. 228, 13 N. E. 781, 1 Am. St. Rep. 815. And see O'Brien v. Cunard Steamship Company, 154 Mass. 272, 28 N. E. 266, 13 L. R. A. 329; Allan v. State Steamship Co., 132 N. Y. 91, 30 N. E. 482, 15 L. R. A. 166, 28 Am. St. Rep. 556. 48 Powers v. Massachusetts Homeopathic Hospital, 109 Fed. 294, 47 C. C. A. 122, 65 L. R. A. 372. 49 Kellogg v. Church Charity Foundation, 128 App. Div. 214, 218, 112 N. Y. Supp. 566. Cf. Schloendorff v. Society of the N. Y. Hospital, 211 N. Y. 125, 105 N. E. 92, 52 L. R. A. (N. S.) 505, Ann. Cas. 1915C, 581. 50 Hordern v. Salvation Army, 199 N. Y. 233, 92 N. E. 626, 32 L. R. A. (N. S.) 62, 139 Am. St. Rep. 889 (plaintiff injured while making repairs; court refused to express any view as to the status of persons visiting charity patients); Kellogg v. Church Charity Foundation of Long Island, 203 N. Y. 191, 96 N. E. 406, 38 L. R. A. (N. S.) 481, Ann. Cas. 1913A, 883 (pedestrian injured by negligent driving of ambulance; judgment for plaintiff reversed on other grounds); Bruce v. Central M. E. Church, 147 Mich. 230, 110 N. W. 951, 10 L. R. A. (N. S.) 74, 11 Ann. Cas. 150. 51 Chapin v. Holyoke Y. M. C. A., 165 Mass. 280, 42 N. E. 1130. 52 Donnelly v. Boston Catholic Cemetery Ass'n, 146 Mass. 163, 15 N. E. 505. (C) Private and Noncharitable 53 It was supposed at one time that an action for a tort would not lie against corporations, at least in cases such as malicious prosecution, where wrongful motive was involved. This doctrine is thoroughly exploded. The same rule now applies to them as to individuals. "The interests of the community and the policy of the law demand that corporations should be divested of every feature of a fictitious character which shall exempt them from the ordinary liabilities of natural persons for acts and injuries committed by them and for them. Their immunities for wrongs are no greater than can be claimed by others." 55 Nor will the corporation escape merely because the act complained of was ultra vires. It will be liable, "however foreign to its nature or beyond its granted powers the wrongful transac 53 Owsley v. Montgomery & W. P. R. Co., 37 Ala. 560. And see Childs v. Bank of Missouri, 17 Mo. 213. 54 Baltimore & Potomac R. Co. v. Fifth Baptist Church, 108 U. S. 317, 330, 2 Sup. Ct. 719, 27 L. Ed. 739. 55 Goodspeed v. East Haddam Bank, 22 Conn. 530, 543, 58 Am. Dec. 439, per Church, C. J. See the following, where the corporation was held responsible: Assault and battery, Moore v. Fitchburg R. Corp., 70 Mass. (4 Gray) 465, 64 Am. Dec. 83; Denver & Rio Grande Ry. v. Harris, 122 U. S. 597, 7 Sup. Ct. 1286, 30 L. Ed. 1146; conspiracy, Buffalo Lubricating Oil Co. v. Standard Oil Co., 106 N. Y. 669, 12 N. E. 826; false imprisonment, Lynch v. Metropolitan El. R. Co., 90 N. Y. 77, 43 Am. Rep. 141; fraud, Scofield Rolling Mill Co. v. State, 54 Ga. 635; Cragie v. Hadley, 99 N. Y. 131, 1 N. E. 537, 52 Am. Rep. 9; Erie City Iron Works v. Barber & Co., 106 Pa. 125, 31 Am. Rep. 508; libel, Maynard v. Fireman's Fund Ins. Co., 34 Cal. 48, 91 Am. Dec. 672; Id., 47 Cal. 207; Fogg v. Boston & Lowell R. Corp., 148 Mass. 513, 20 N. E. 109, 12 Am. St. Rep. 583; malicious prosecution, Boogher v. Life Ass'n of America, 75 Mo. 319, 42 Am. Rep. 413; negligence, Consolidated Ice Machine Co. v. Keifer, 134 Ill. 481, 25 N. E. 799, 10 L. R. A. 696, 23 Am. St. Rep. 688; Hickey v. Merchants' & Miners' Transp. Co., 152 Mass. 39, 24 N. E. 860; nuisance, Schenectady First Baptist Church v. Schenectady & T. R. Co., 5 Barb. (N. Y.) 79; trespass, Merrills v. Tariff Mfg. Co., 10 Conn. 384, 27 Am. Dec. 682. As to slander authorities are conflicting, but there seems no good reason for doubting lability. Roemer v. Jacob Schmidt Brewing Co. (Minn. 1916) 157 N. W. 640; Kharas v. Collier, Inc., 171 App. Div. 388, 157 N. Y. Supp. 410. tion or act may be." 5 It would be a strange condition of the law which would permit the company to shield itself from liability by resort to a literal construction of charter powers which it had itself extended." Thus, where an educational corporation was sued for injuries sustained through the negligence of its ferryman, it was no defense that the maintenance of the ferry was ultra vires; 58 and the same is true where a bank, without charter authority, but with the knowledge of the directors, takes special deposits, which are lost through gross negligence. Further illustrations are given in the note. As corporations can necessarily act only through their agents and servants, further consideration of their responsibility must be taken up when the liability of the employer is discussed.1 59 EMPLOYERS 52. The liability of employers will be considered as follows: (A) For the wrong of a servant or agent. (B) For the wrong of an independent contractor. 56 New York & N. H. R. Co. v. Schuyler, 34 N. Y. 30, 49, per Davis, J. 57 See Noyes v. Rutland & B. R. Co., 27 Vt. 110, 113. 58 Nims v. Mt. Hermon Boys' School, 160 Mass. 177, 35 N. E. 776, 22 L. R. A. 364, 39 Am. St. Rep. 467. 59 First Nat. Bank v. Graham, 100 U. S. 699, 25 L. Ed. 750. Though in fact the receipt of special deposits was here found not ultra vires. 60 Central Railroad & Banking Co. v. Smith, 76 Ala. 572, 52 Am. Rep. 353; German Nat. Bank v. Meadowcroft, 95 Ill. 124, 35 Am. Rep. 137; Alexander v. Relfe, 74 Mo. 495; New York, L. E. & W. R. Co. v. Haring, 47 N. J. Law, 137, 54 Am. Rep. 123; Hannon v. Siegel-Cooper Co., 167 N. Y. 244, 60 N. E. 597, 52 L. R. A. 429; Burke v. State, 64 Misc. Rep. 558, 119 N. Y. Supp. 1089; Zinc Carbonate Co. v. First Nat. Bank, 103 Wis. 125, 79 N. W. 229, 74 Am. St. Rep. 845. 61 See "Employers." FOR THE WRONG OF A SERVANT OR AGENT 53. Omitting any question of participation or ratification, the master or principal will be responsible(1) Where the servant or agent, in committing the wrong, acted within the course of his employment with a view to the master's business; and (2) Where the act or neglect constituted a violation of a duty resting upon the employer. A master or principal will be responsible for the wrongful acts of the servant or agent in which he participated or which he subsequently ratified. But this does not depend upon rules peculiarly applicable to these relationships, and hence will be discussed when the liability of joint wrongdoers is considered. At present we are concerned only with the responsibility of the employer as such towards third persons who have been injured by the employé in cases where participation or ratification is lacking. Viewed from this standpoint, the employer will be responsible (1) where the employé has acted within the course of his employment; (2) where the act or neglect of the employé was a violation of duty resting upon the employer. (1) Acts Within Course of Employment It is difficult to explain the basis for the rule, except upon grounds of public utility. A master is answerable because it is on the whole better that he should suffer from defaults in the conduct of his business than that innocent third persons should bear the losses that such defaults cast upon them."2 It is, of course, essential that the relation of master and servant or principal and agent exist, in order that the doctrine of respondeat superior apply. It has already been intimated that no such result follows where there is a lack of control over the delinquent individual, for which reason, as will be seen later, the principal will not generally be re 62 See Huffcut on Agency, 194; Pollock on Torts, 72-74. CHAP.TORTS-14 |