dissenting:
I find myself unable to concur in the conclusion of the majority opinion in this case.
It is true that while the law of torts was being developed the doctrine that a charitable corporation is not liable for injuries resulting from the negligent or tortious acts of ministerial servants in the course of their employment, where the corporation has exercised due care in their selection, became very generally established by the decisions in most jurisdictions. But it seems now very clear that this doctrine cannot be sustained on principle, except in those cases in which the actual tender of service—the actual undertaking—on the part of the corporation is óf a .qualified or limited character of service, and such qualified tender of service is accepted by the person complaining, as, for example, when a hospital does not undertake to do anything more for its patients than to use due care in the selection of its servants who may have the care of the patients.
The opinion of the district court in the case of Powers v. Massachusetts Homeopathic Hospital, 109 Fed. 294, 47 C. C. A. 122, 65 L. R. A. 372, chiefly relied on in the majority opinion, is a well reasoned opinion until it comes to the ground on which the decision is placed, namely, that if a suffering man avails himself of gratuitous services, as of a charity embodied in a charity hospital, he takes the risk of malpractice, if the agents of the hospital have been carefully selected. Such a conclusion, thus broadly stated, seems to be a palpable departure from principle. It rests upon the position that no duty exists on the part of the hospital to perform the service of proper ministerial care of and attention to its patients if that service is gratuitously undertaken by the hospital. The fallacy of that position was *613established as early as the case of Coggs v. Barnard, 1 Smith’s Lead. Cas. 95, as is pointed out in the concurring opinion of Judge Potter in Glavin v. Rhode Island Hospital, 12 R. I. 411, at p. 434, 34 Am. Rep. 675, at p. 689. As there •said: “It is enough that confidence is tendered and accepted. That is a sufficient consideration; and the fact that the service is rendered gratuitously is immaterial. ‘The confidence induced by undertaking any service for another is a sufficient legal consideration to create a duty in the performance of it,’ said Grier, J., citing Coggs v. Bernard, and 1 Smith’s Lead. Cas. 95; Philadelphia & Reading Railroad v. Derby, 14 How. 468, 485; Whart. on Neg. §§437, 640, 641. The remarks of the last-cited author in section 437 and the authorities there cited apply. If a person undertakes to do an act or discharges a duty by which the conduct of others may properly be governed, he is bound to do it in such a manner that those who act upon the faith of it shall not suffer from his negligence; and this even if there was, in the beginning, no consideration for the promise.”
As said in.the opinion of the court in Gilbert v. Corporation of Trinity House, 17 Q. B. Div. L. R. 795, at p. 799: “The law is plain that whoever undertakes the performance of, or is bound to perform, duties * * however they may arise, is liable for injuries caused by his negligent discharge of those duties. It matters not whether he makes money or profit by means of discharging the duties, or whether it be a corporation or an individual who has undertaken to discharge them. It is also immaterial whether the person is guilty of negligence by himself or by his servants. If he elects to perform the duties by his servants, if, in the nature of things he is obliged to perform the duties by employing servants, he is responsible for their acts in the same way that he is responsible for his own.”
*614It seems to me that the error in the reasoning of the opinion in the Powers Case, supra, 109 Fed. 294, 47 C. C. A. 122, 65 L. R. A. 372, upon which its conclusion is based, consists in this: The cases of common employment, of athletic sports, and of the good Samaritan, who, in an individual instance, takes to his home a wounded stranger for care, are considered as the same in principle as that of a hospital established with the money of a number of persons who are good Samaritans for the purpose of conducting the business of rendering the service of care to wounded strangers. The cases are not analogous. In those of common employment, there is no undertaking of any duty by one fellow-servant to the other. The same is true of those voluntarily associating themselves together while engaged in athletic sports. And, in the case of the individual instance of the action of a good Samaritan stated, that, upon well settled principles, would not constitute the conduct of such a business on the part of the good Samaritan—it would not constitute an undertaking on his part to render the service of care of the wounded person, but merely to furnish to the latter the use of the house as it stood and such ministering care as the facilities and servants in that home, chosen, not for that, but for other purposes, and not held out to be suitable or competent for that purpose, might perchance render in the emergency in which the stranger is found until such time as he, or those owing him the duty to act in the premises, may obtain from some other source some actual undertaking of the rendering of the service of care. Whereas, in the case of the hospital, the material distinction is that it conducts a business of rendéring the service of the care in question'; it holds itself out as undertaking to perform such service; it tenders such service as an actual under*615taking on its part; and when such tender is accepted by any one, the duty of performing the undertaking attaches.
If, indeed, the conduct of a patient in entrusting himself to the care of a charity hospital (or, as in the case in judgment, if the conduct of the father in entrusting his infant child to the care of the hospital), was not governed, i. e., induced by the unqualified undertaking on the part of the hospital of the duty of performing the service of proper ministerial care of and attention to the patient, for the reason that he actually or constructively knew at the time the relationship of patient was established that the hospital did not undertake to do more for its patients than to use due care in the selection of its servants who might have the care of the patients; in such case it would be true that the patient (or, in the case in judgment, the father for the infant patient) would be deemed to have impliedly agreed to assume the risk of the negligence of such servants as were selected with due care. And this, in truth, is the extent of the holding on this subject in the opinion of the Virginia court in Hospital v. Thompson, 116 Va. 101, 81 S. E. 13, 51 L. R. A. (N. S.) 1025.
But it is apparent that this situation exists only where the hospital does not hold itself out to the public as doing the business of undertaking the unqualified duty of performing the service aforesaid, and the latter fact is actually or constructively known to the patient, or the person acting for the patient, at the time the relationship of patient is established. In the absence of actual qualification in the tender of service by the hospital, as aforesaid, the qualified duty of service cannot be inferred from the meré fact that the service is gratuitous. The gratuity is immaterial. The material fact is what service was tendered— was actually undertaken—by the hospital, and was actually expected by or for the patient to be performed, which ex*616pectation governed or induced the establishment of the relationship of patient.
In Tucker v. Mobile Infirmary Ass’n, 191 Ala. 572, 68 So. 4, L. R. A. 1915-D, 1167, the fact was that the injured patient paid full compensation for the services received. It does not appear whether the patient knew or did not know that the hospital was a charitable corporation. In reference to the principle of “implied assent” or the “assumption of risk” aforesaid, this is said in the opinion of the court in such case: “The principle, if held to be sound, must rest upon the fact that it is giving and receiving of charity that creates the exemption, and not th« nature of the institution administering it.” And the court holds that, in that case, the patient did not in fact accept charity, and, hence, that the principle mentioned had no application. That is to say, even if the qualified undertaking aforesaid would be inferred from the giving and receiving of the gratuitous service, that inference would not arise unless the fact that the service was to be gratuitous was known to the recipient of it at the time ef its acceptances and was so accepted.
In Stewart v. California Medical, etc., Ass’n, 178 Cal. 418, 176 Pac. 46, the injured patient paid the full price asked by the hospital for the services rendered, and the patient “had no knowledge that the hospital was, or claimed to be, a charitable institution.” In the opinion of the court, in reference to the principle of the “assumption of risk” aforesaid, which is referred to as the “rule” enunciated in Basabo v. Salvation Army, 35 R. I. 22, 85 Atl. 120, 42 L. R. A. (N. S.) 1144, this is said: “* * * if this rule is followed, the defendant could hardly claim to be thereby relieved of responsibility, for the reason that the plaintiffs had no knowledge whatever of the charitable character of the organization.”
*617The question under consideration is a pure question of fact. The majority opinion infers that there was a tender by the hospital of a qualified or limited service from the bare circumstance that it is a charitable institution. It is precisely at this point that I find myself unable to concur in that opinion. I do not think that because the hospital may have tendered a qualified service it must be inferred that it did so.
It affirmatively appears from the record before us that the father, who established the relationship of patient of the infant, did not know at the time that the hospital was a charitable institution, or claimed to be. He undertook to pay the full price asked by the hospital for the service. The hospital undertook to render the service without any qualification. It thereby held itself out as doing the business of undertaking the unqualified service aforesaid—precisely the same business as that done by non-charitable hospitals, and in competition with the latter. That being the character of the business, surely the mere purpose with which it is done cannot change its character. In the case in judgment there was, therefore, as it seems to me, a tender and acceptance of an unqualified service, from which arose the duty on the part of the hospital of performing the service with reasonable care, as aforesaid.
This view of the law is in accord with the majority holding of the courts in railroad and mine hospital cases; is in harmony with general principles; is also, as I am deeply convinced, in accord with true policy; and will induce, in the ultimate result, the greater efficiency of such public charities as charity hospitals, as it will, upon the whole, greatly enlarge their beneficial service. Reasonably efficient service is, after all, the only service which can be regarded as true charity. And in the absence of mutual agreement for less, or of governmental institutions ren*618dering a less service (where the somewhat antiquated maxim that “The king can do no wrong,” is in substance put into force and shields the Commonwealth, and its political subdivisions, when acting as agencies of the State in governmental matters, from the application of the wise general rule of the common law aforesaid), I- feel that the courts should firmly apply the general rule of the common law.
The Virginia cases of Richmond v. Long, 17 Gratt. (58 Va.) 374, 94 Am. Dec. 461, and Maia v. Eastern State Hospital, 97 Va. 507, 34 S. E. 617, 47 L. R. A. 577, rests upon the principle that the corporations involved were acting as agencies of the State in governmental matters. It is recognized by all the authorities that such a case as that in judgment does not fall within that principle.
Saunders, J., also dissents.