June 22, 1914. The opinion of the Court, en banc, was delivered by This is an action for damages alleged to have been sustained by the plaintiff, through the negligence of one of the nurses employed by the defendant, in placing the plaintiff in the bed where there were hot bottles that burnt her severely, while she was unconscious, after undergoing a surgical operation. The jury rendered a verdict in favor of the plaintiff for $1,800, and the defendant appealed upon exceptions assigning error, on the part of his Honor, the presiding Judge, in refusing a motion to direct a verdict in favor of the defendant, on the ground that "the uncontradicted evidence shows that it was a charitable or eleemosynary institution, and, as such, is by law exempt from liability for the injury sued upon."
The rule is thus stated in 6 Cyc. 975, 976: "A charitable corporation is not liable for injuries, resulting from the negligent or tortious acts of a servant, in the course of his employment, where such corporation has exercised due care in his selection. While this rule of law is well established, the reasons assigned for it are not uniform. Some Courts hold that the funds of a charitable corporation cannot be appropriated to payment for an injury arising from the neglect or wrongdoing of the servants; others exempt charitable corporations from liability, on the ground of public policy; still others hold that one who accepts the benefits of a charity assumes the risk of negligence."
To the same effect is the principle announced as follows in 5 Enc. of Law. 923: "With regard to the liability of charitable corporations or their trustees, for the negligence of agents or employees, there is some difference of opinion; but the decided weight of authority denies such liability. This on two grounds: First, that if this liability were admitted, the trust fund might be wholly destroyed, and diverted from the purpose for which it was given, thus thwarting the *Page 28 donor's intent as the result of negligence for which he was in nowise responsible. Second, that since the trustees cannot divert funds by their direct act, from the purpose for which they were donated, such funds cannot be indirectly diverted, by the tortious or negligent acts of the strangers of the funds or their agents or employees."
In the notes also in the argument of the appellant's attorneys, there are numerous authorities sustaining the forgoing texts.
The true ground upon which to rest the exemption from liability is that it would be against public policy to hold a charitable institution responsible for the negligence of its servants, selected with due care. But the question whether it would be liable for negligence in the selection of its servants without due care is not before the Court for consideration.
Much confusion has arisen from the effort to apply language used in some of the English and American decisions to cases in which the facts were entirely different from those in which it was used. Adams v. University Hospital,122 Mo. App. 675, 99 S.W. 453.
We have been able to find only a single case decided by any Court in the United States in which it was held that a charitable institution was liable for the negligence of its servants when that question was involved, to wit, Glavin v. R.I.Hospital, 12 R.I. 411, 34 Am. Rep. 675, and in that case the language of the Court was broader than was warranted by the facts. After that decision was rendered the legislature of Rhode Island enacted a statute changing the rule announced by the Court.
The next question for consideration is whether the defendant is a charitable corporation. The following admission on the part of the plaintiff's attorney appears in the record: "Mr. Robinson: I do not contend it is not an eleemosynary institution; it is an eleemosynary institution under the laws of this State, the charter says that; I do take an issue about *Page 29 the question of charity, whether it falls under a public charity." The petition for a charter recited that its purpose was "to conduct and carry on a hospital for the care and treatment of the sick," and in article 1 of the constitution it is stated that "its object shall be to erect and maintain a hospital at Columbia, S.C. for sick persons." The corporators were certain physicians of Columbia and a number of ladies, but the ladies afterwards resigned, and, under a resolution adopted by the association, an arrangement was made by which their places were filled by physicians; but the general purposes of the organization were to be continued of force, without material change, as will appear from section 4 of the resolution, which was as follows: "In this way all the rights, privileges, and immunities of the present organization will be preserved, its obligations of every nature whatsoever will be respected and remain unimpaired, and the hospital building and improvements will be left with the names, under which it has been fostered, through the care and zeal and self-sacrifice of the ladies." The charitable nature of the defendant is thus stated in its answer: "The defendant is not a business corporation and has no stock or stockholders, but is an eleemosynary or charitable corporation, and as such conducts a hospital in the city of Columbia, in said county and State, and holds all of its property in trust for the conduct and maintenance of the same; that said hospital is supported and maintained in part by gifts and bequests, which are and have been made to it from time to time, and in part by fees and charges paid by patients treated therein; that in the conduct of said hospital some patients are treated entirely free, and others pay more or less according to their circumstances, but all sums so received are devoted solely to the maintenance, support, improvement, and equipment of said hospital as an eleemosynary institution."
The respondent's attorney urges several reasons why the defendant cannot be regarded as a charitable institution so *Page 30 as to be exempt from liability for the negligence of its servants.
In the first place, he relies upon the fact that the defendant is controlled by the physicians of Columbia, who are members of the hospital association. We have already shown that they are mere trustees for the purpose of carrying into effect the original purposes for which the hospital association was organized. They are not entitled to any part of the profits, and the only benefits they derived from the association are merely incidental to their practice. There is no common fund to be divided among the physicians, but each must look to the particular patient employing him for his fee without reference to the fees of the other physicians.
The second ground upon which the respondent relies is that the defendant is not a public charity. The defendant is a public charity, but the same principle would apply if it were a private charity. Parks v. N.W. University, 218 Ill. 381, 75 N.E. 991, 2 L.R.A. (N.S.) 556, 4 Ann. Cas. 103, and note.
The respondent next relies upon the fact that the plaintiff was a pay patient. In order to show that this proposition is untenable, it is only necessary to refer to the cases of Jensen v. Maine Eye Ear Infirmary, 107 Me. 408, 78 A. 898, 33 L.R.A. (N.S.) 141, and Duncan v. Nebraska Sanitarium,92 Neb. 162, 137 N.W. 1120, 41 L.R.A. (N.S.) 973, Ann. Cas. 1913E, 1127, in which it was held that a hospital supported mainly by charity does not lose its character as a charitable institution by the fact that it accepts compensation and makes a charge for the use of rooms to those who are able to pay for them.
The next ground upon which it is urged that the defendant should be held liable is that the hospital is a training school for nurses. This is a mere incident to the main purpose for which the association was chartered and does not destroy its charitable nature, but tends to render it more efficient. Furthermore, the question whether the defendant *Page 31 exercised due care in the selection of its employees was not an issue in the case.
Lastly, it is contended that the hospital is a convenient and practical necessity and adjunct in the practice of the physicians. The respondent relies upon the case of Universityof Louisville v. Hammock, 32 Ky. Law Rep. 431, 106 S.W. 219, 14 L.R.A. (N.S.) 784, in which the Court used the following language: "Appellant's third contention, that it is a charitable institution, and, by reason thereof, exempt from liability for the negligence of its servants, is in conflict with more than one decision of this Court. The hospital in which appellee received the injuries complained of is an adjunct of the appellant's school of medicine, known as the `University of Louisville,' and is maintained principally because of the advantages it affords to the students and professors of that institution. It is, however, also conducted for compensation and profit. In the main, patients received and treated at the hospital are required to compensate those in charge of it for the services rendered. This is certainly true, according to the evidence, as to patients able to pay. It is true some patients unable to pay are received and treated free of charge, but this does not show that appellant conducted a purely public charity; and, to escape liability for the wrongful acts or negligence of its servants, it should have proved that such was the character of the hospital and the use to which it is devoted." The Court then proceeds to quote the following language from the case of Gray State Infirmary v.Louisville, 65 S.W. 11, 23 Ky. Law Rep. 1274, 55 L.R.A. 270: "Dr. Grant testified that the institution would not have been established, except that the incorporators hoped to receive pecuniary advantage from it, either directly or through their connection with the college. We have no doubt from the testimony that the professors in the medical college do a great deal of charitable work in the infirmary; yet the real purpose in establishing the infirmary was to make their college more attractive to students, and to induce *Page 32 attendance by reason of instruction and clinical experience, received in the infirmary, and in this way to increase the pupils of the professors operating the college. Certainly such an institution cannot be exempt from taxation, on the ground that it is purely an institution of public charity." The Court also quotes the following language from the case of Wathen v. Louisville, 85 S.W. 1195, 27 Ky. Law Rep. 635: "It is manifest from the evidence that the hospital is maintained because it is necessary to the successful conduct of the school of medicine. Without the clinical instructions and operations by the professors in the presence of the students the school could not be maintained with success. The hospital is an adjunct or a part of the medical school. Whatever gain may result from the operation of the medical school goes to the owners of the property. While the evidence shows a great deal of charity work is performed in the treatment of patients and in dispensing medicines, still the institution is conducted for profit. As it is operated for gain, no part of it is exempt from taxation." It will thus be seen that the infirmary was a mere incident to the medical college, and that the profits were not devoted to charity, but to private ownership.
In the case under consideration, however, the profits arising from the management of the hospital must be expended for charitable purposes, and not for the private benefit of the physicians in charge thereof.
Judgment reversed.
MR. ASSOCIATE JUSTICE HYDRICK, and CIRCUIT JUDGES PRINCE, MEMMINGER, DeVORE, SHIPP, FRANK B. GARY, SPAIN and MOORE concur in the opinion announced by the Chief Justice.