(dissenting). In Morrison v. Henke, 165 Wis. 166, 170, 160 N. W. 173, in pronouncing in favor, of the doctrine of immunity of a charitable, hospital for the negligent acts of a servant, it is said:
“Since the hospital derives no profit from its work, and since it is founded for the sole purpose of conserving the health and life of all who may need its aid, and since it ministers to those who cannot pay as well as those who can, thus acting as a good Samaritan, justice and sound public policy alike dictate that it should be exempt from the liability attaching to masters whose only aim is to engage in enterprises of profit or of self-interest. The patient who accepts the services of such an institution, if injured therein by the negligence of an employee, must be content to look for redress to such employee alone. The principle *183invoked is analogous to that which exempts municipalities from the rule of respondeat superior in the discharge of their governmental functions.”
The first case in this country involving the immunity of a charitable hospital from liability to a patient on account of the negligence of a servant is McDonald v. Massachusetts Gen. Hosp. 120 Mass. 432, and the decision in that case is based upon an English case which at the time of the rendition of the decision in the McDonald Case had, without the knowledge of the court or counsel in the McDonald Case, been overruled by the House of Lords, and such doctrine was therefore at that time not the recognized doctrine in England. Following this decision in the McDonald Case are numerous cases in various courts of last resort in the states, where the doctrine of immunity was based upon various and different grounds. Some of the early cases were decided upon what is known as the trust-fund doctrine, under which it was determined that a charity fund could not be used to compensate injured parties because it would have a tendency to divert the fund to purposes not intended by the donor and because it would frustrate the purposes of the creators or founders of the fund. This doctrine has quite generally been repudiated in the United States, for reasons which are plain and which need not now be reiterated. 13 Ruling Case Law, p. 946, § 10, and cases cited under note 9.
Many of the courts based their opinions upon the so-called doctrine of public policy, 'and give as a reason that such institutions are inspired and supported by benevolence and devote their assets and energies to the relief of the destitute, sick, and needy, and that the common welfare requires that they should be encouraged and held exempt from liability for tort, and that to do otherwise would operate to discourage the charitably inclined, dissipate the assets of such institutions in damage'suits, and ultimately *184destroy them. With respect to this doctrine, it is said in 13 Ruling Case Law, p. 945, § 9:
“In answer to this argument, however, it has been said that while the public has an interest in the maintenance of a great public charity, it also has an interest in obliging every person and corporation which undertakes the performance of a duty to perform it carefully, and to that extent, therefore, it has an interest against exempting any person and any such corporation from liability for its negligence, and that moreover it is solely for the legislature, and not for the courts, to say that the former interest is so supreme that the latter must be sacrificed to it.”
This public-policy doctrine has been disapproved in University of Louisville v. Hammock, 127 Ky. 564, 106 S. W. 219; Bruce v. Central M. E. Church, 147 Mich. 230, 110 N. W. 951; McInerny v. St. Luke’s Hosp. Asso. 122 Minn. 10, 141 N. W. 837; Hewett v. Woman’s Hosp. Aid Asso. 73 N. H. 556, 64 Atl. 190; Hordern v. Salvation Army, 199 N. Y. 233, 92 N. E. 626; Glavin v. Rhode Island Hosp. 12 R. I. 411; Basabo v. Salvation Army, 35 R. I. 22, 85 Atl. 120; Hospital of St. Vincent v. Thompson, 116 Va. 101, 81 S. E. 13.
The third class of cases holding to the doctrine of immunity is based upon the implied-waiver doctrine, under which it is held that one who accepts the benefit either of a public or private • charity enters into a relation which exempts his benefactor from liability for the negligence of his servants in administering the charity. In such cases it is said:
“There is an assumption of risk by the patient who seeks and receives the services of a public charity.” Powers v. Massachusetts H. Hosp. 109 Fed. 294; 13 Ruling Case Law, p. 947, § 11.
In the Morrison Case (165 Wis. 166, 160 N. W. 173) this court rested its decision upon the doctrine that a hospital performs a gwsi-govemmental function, and for that *185reason the doctrine of respondeat superior does not apply. From what has been said it will readily appear that the courts have labored under great difficulty at all times in justifying their attitude with respect to the question.
It is said in 5 Ruling Case Law, 376:
“A careful study of the decisions, however, is convincing .that the doctrine of respondeat superior does apply though the business of the master is not carried on for the purpose of profit,” citing cases under note 18.
The doctrine which is perhaps most generally recognized by the courts is the implied-waiver doctrine, being the doctrine of waiver by acceptance of benefits, and this doctrine only applies to patients. It has therefore been held that recovery could be had in favor of a stranger injured by reason of the unsafe condition of hospital premises, or by an employee’s mechanic working on the hospital premises, or. by one injured by the careless driving of a hospital’s servant, or by an apprentice nurse put in charge of a patient suffering with a contagious disease without warning, whereby she contracted it. 13 Ruling Case Law, 949, and numerous cases cited in the notes.
While I do not agree with the decision in the Morrison Case, but assuming that the doctrine declared for therein is now the law in this state, the question arises whether it should be extended to immunize an institution like the defendant in the instant case. Exemption from liability for negligence in cases of private institutions should be founded solely upon acts of the legislature, and such exemption is particularly a province of the legislature. The legislature in this state has seen fit, in a number of instances, to exempt property of such institutions from taxation. Surely such exemptions would not have been within the proper field of determination for the courts. While hospitals, Young Men’s Christian Associations, and similar institutions are actively engaged in the welfare of humanity and tend to *186minister to the wants and ills of mankind, and to a large extent relieve the public from the performance of its duties in that regard, we cannot lose sight of the necessity of holding all persons amenable to the law with respect to the exercise of due care in the performance of their duties. In the course of time we have developed a complex industrial system. Human ingenuity has been active in inventing mechanical appliances and processes, all designed to relieve labor of its burdens and to secure greater efficiency. The automobile has- become so common and .its use so general that by fa¿- the greatest number of casualties reported spring from the use of that instrumentality. The number' of fatal accidents resulting from the use of the automobile since the great war far exceeds the casualties resulting in death of our soldiers engaged in such war. By far the vast majority of those injured in industrial pursuits or in automobile accidents receive treatment in private charitable hos-. pitáis. As a matter of public policy, the question resolves itself as follows:
Under the present-day existing circumstances, is it a wiser policy to hold to the doctrine of immunity or to the doctrine of liability; and assuming that the doctrine of immunity shall be continued with respect to hospitals in regard to their patients, should such doctrine be extended to include injuries received by strangers ?
The Young Women’s Christian Association has been a powerful factor for good in every civilized community. To my mind it is repulsive to the very idea underlying the organization and its purpose to make claim to or grant immunity, especially where an injury is sustained through the negligence of a servant of the association by a stranger. What reason is there for immunizing an association of this kind on account of the negligence of its servants, and placing the entire consequences of an injury upon an innocent third person or upon the family of such injured person? The doctrine of responsibility for negligence is *187not solely based upon the doctrine of compensation, but has its primary source in a desire on the part of the public to secure careful and reasonable conduct. This latter doctrine is made applicable to nearly all the affairs of life, and it has resulted in raising the standard of human conduct. Any other doctrine leads to carelessness, neglect, and injury to mankind and property. For an association like the defendant to claim immunity from the negligence of its servants is like a minister of the Gospel pleading the statutes of limitations to avoid the payment of a just obligation. I think it is wrong in principle, is not in accordance with the prevailing doctrine in this country, and is not conducive to human welfare, and should not receive the sanction of this court.
The immunity declared in the instant case is a corollary derived from the principle laid down in the 'Morrison Case. .The error is in the premise, and therefore the final results are not true; but, in any event, the limits of the public-policy doctrine declared in the Morrison Case should have been there drawn, for if an exemption on the ground of public policy can be legally declared under the facts existing in the Morrison Case, such exemption can be judicially limited.
In this present day charity is administered mainly through the agency of corporations, which 'can act only by and through agents, so that'the immunity doctrine in effect results in a license to commit irremediable torts; a doctrine which the plaintiff, an innocent traveler on the highway, injured through the negligence of the defendant’s agents, resulting in epileptic fits — a rather serious human ailment,— will never be fully able to understand or appreciate. Charity from the modern viewpoint is an attribute of justice and springs from the Christian doctrine of service to mankind, and is not only a privilege but a duty, at least in the moral sense. The protection of life and limb by organized society is of greater importance to mankind than any species of *188charity, and it is superior to the rights of property.. It would be better that all forms of private charity were abolished if it can be maintained solely at the expense of the life, health, and limb of the members of the community. The view that the doctrine of respondeat superior only applies where the agent performs services on account of which the master profits, may be in harmony with modern ideas of political economy, but such doctrine is not generally or universally approved by the courts; and it would seem to be a dangerous doctrine.
For the reasons stated I respectfully dissent from the majority opinion.