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setting forth the law upon this subject, have expressed their views, which are as varied as are the cases. It may be true, as held in the majority of cases that customers of a bank know of the necessity and custom of sending paper for collection at distant places to correspondent banks. And it is because of this custom that the customer goes to his bank to perform this service, knowing and feeling that the bank can do it so much better than himself, and he gener ally leaves the manner and method of collection to the bank entirely. Because of the knowledge and superior advantages of the bank to perform this service, the customer is willing to pay for it, and for this compensation the bank assumes all the responsibility in what shall be done in making the collection, and it selects its own agencies. There is not a great deal of wisdom in the variation of the rules of agency as applied by the courts to this relation. In the modern banking world, it is generally true that, in the principal cities, the banks have their own regular correspondents, with whom they may have accounts, and especially in such cases it would seem to be a sounder doctrine to hold that they should be responsible for their neglect.105

§ 110. Hospitals-Liability for Torts. Charitable institutions, so called, may be formally organized as corporations, or as mere voluntary associations. They may be an adjunct of a municipality. In what

Pennsylvania: Mechanics' Bank v. Earp, 4 Rawle, 384.

Tennessee: Bank of Louisville v. First Nat. Bank, 8 Baxt. 101, 35 Am. Rep. 691.

Wisconsin: Stacy v. Dane Co. Bank, 12 Wis. 629.

104 Daniel on Negotiable Instruments, sec. 342; Morse on Banks and Banking, 406-417.

105 See discussion of this topic, with citation of authorities, 34 Am. Dec. 313, note.

Torts, Vol. I-14

ever form we find them their liability for torts is based upon the same principle. Hospitals have generally always been classed among charitable institutions, and there has been considerable discussion in this connection as to what constitutes a charitable hospital, the question being important, in the opinion of some courts, as to whether or not a hospital is held responsible for the acts of its physicians who may happen to treat their patients. Upon the question of the liability of hospitals for the torts of those whom they may employ, we find some sharp conflict, and it has received very earnest consideration from an early period. The only theory evolved upon which such an institution may be held is, as in the case of ordinary corporations, that the hospital and the physician sustain the relation of master and servant, and by virtue of such relationship the master—the hospital-is responsible for the neglect of the servant -the physician.

First, will be considered the question as to what constitutes a charity, and whether a hospital is within the meaning of that term. There is perhaps no controversy that a corporation organized to conduct a hospital, using whatever income comes to it to maintain and operate it, without private gain to its managers, and even though patients do pay for their accommodation, is a public charity. This is well sustained.106 Next, then, is what degree of care is to be exacted of a charitable hospital in the selection of its physicians and surgeons, and does the feature of charity make any difference. This, it seems, should determine the responsibility, but it ap

106 McDonald v. Massachusetts General Hospital, 120 Mass. 432, 21 Am. Rep. 529; Jackson v. Phillips, 14 Allen, 539; Downes v. Harper Hospital, 101 Mich. 555, 45 Am. St. Rep. 427, 60 N. W. 42; State v. Moder, 7 Ohio N. P. 514; Humphries v. Little Sisters, 29 Ohio St.

pears that the cases have proceeded upon other grounds; having come to the conclusion that such institutions are charitable in their nature, and that the funds, whether derived from pay patients or gift, are held by the managing trustees to carry out these purposes, that, therefore, they have no fund with which to pay any judgment that may be rendered against them. It is considered that to give damages out of a trust fund would be to divert it from its proper purpose. This doctrine was first announced in an English case where the trust was created by will, and where there was merely a refusal to admit a patient, so that the question of care was not involved.107 But upon the latter question the doctrine was announced that such a corporation was not liable to be sued for the tort of its servants, employees or pupil, without proof of negligence in selecting them. 108 It is claimed, however, that this rule was modified by later cases in effect holding that a board or body having work to do gratuitously is liable for the neglect of its servants or employees the same as a private business corporation, provided it has funds out of which a judgment against them can be satisfied.109 It has been held in this country, however, that a corporation, established for the maintenance of a public charitable hospital, even though it receives payment for the board of its patients, is not liable for injury to a patient by one of its ser

107 Foeffees of Heriot's Hospital v. Ross, 12 Clark & F. 507. See Fire Ins. Patrol v. Boyd, 120 Pa. St. 624, 6 Am. St. Rep. 745, 15 Atl. 553.

108 Holliday v. St. Leonard (1861), 11 Com. B., N. S., 192.

109 Mersey Docks v. Gibbs, 11 H. L. 686, L. R. 1 H. L. 93; Forman v. Mayor of Canterbury, L. R. 6 Q. B. 214; Coe v. Wise, L. R. 1 Q. B. 711, 5 Best & S. 440; Winch v. Conservators etc., L. R. 7 C. P. 458.

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vants, if care has been exercised in their selection.' The same rule has been applied where employers or transportation companies have employed surgeons for the benefit of any servant or patron who may desire his services.111 On the contrary, the supreme

court of Rhode Island has held that one who sustains injury at a public hospital from unskillful surgical treatment by an unpaid surgeon may maintain an action against the hospital therefor, although the hospital is a public charity, supported by trust funds, and the plaintiff paid nothing but a small amount for board and attendance.112

110 McDonald v. Massachusetts General Hospital (1876), 120 Mass. 432, 21 Am. Rep. 529; Downes v. Harper Hospital (1894), 101 Mich. 555, 45 Am. St. Rep. 427, 60 N. W. 42; Conner v. Sisters, 7 Ohio N. P. 514; Hearns v. Waterbury Hospital, 66 Conn. 126, 33 Atl. 595. 111 Laubheim v. De Koninglyke etc. Co., 107 N. Y. 228, 1 Am. St. Rep. 815, 13 N. E. 781; Pittsburgh etc. Ry. Co. v. Sullivan, 141 Ind. 83, 50 Am. St. Rep. 313, 40 N. E. 138.

112 Glavin v. Rhode Island Hospital (1879), 12 R. I. 411, 34 Am. Rep. 675.

CHAPTER VIII.

LIABILITY OF PERSONS AS AFFECTED BY DUTY TO PUBLIC- COMMON CARRIERS - TELEGRAPHTELEPHONE-INNKEEPERS.

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§ 112.

Common carriers of goods-Liability, in general.

§ 113. Telegraph companies-Their legal status.

§ 114. Telegraph companies, further considered-Care exacted of them.

115. Same-May make rules and regulations.

§ 116. Action by sender of messages.

§ 117.

Action by receiver of message.

§ 118. Instances of actionable negligence.

§ 119. Telephone companies-Their legal status.

§ 120. Innkeeper defined.

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§ 122. When one becomes a guest-Continuance of relation. § 123. Duties and liabilities of innkeepers.

Explanatory. The position in the eyes of the law of the common carrier, telegraph and telephone company, and innkeeper is markedly different from that of other private corporations and individuals. Their business is of a quasi public character, and the duties exacted of them, though nominally in the interest of the general public, are in reality in the interest of the individuals. And the basis of their liability, in some respects, depends upon this public duty. This is the reason for the treatment of the liability of this class of corporations and persons in a separate chapter.

§ 111. Who is a Common Carrier.-A common carrier is one who, by virtue of his calling, undertakes,

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