action, but was really surplusage, as the issue as to appellant's age was already made in the first paragraph. The third paragraph is a plea of contributory negligence, without any averment that the appellant was above the age of 16 years, or denial that he was under that age. The fourth paragraph contained no denial that appellant was under the age of 16 years, and presents for a defense the allegations that the appellee is a charitable institution and immune from a claim for damages on account of negligence of its servants, agents, and employees, or negligence to be attributed to it. It is alleged that it is a corporation duly organized and existing under sections 879, 880, 881, and 882, Ky. Stats., providing for the organization and incorporation of religious, educational, and charitable institutions; that the principal object and purpose for which it was formed, and for which its existence is continued, was and is to found and maintain a hospital for the poor and needy sick; its officers and trustees receive no salaries; its funds arise from gifts, donations, and contributions by individuals, who make same. for the purpose that they shall be held by the trustees and devoted exclusively to purely charitable uses in the conduct of its hospital; and that every sum received is held by the appellee as a trustee and nurse to care for in the usual way. It was placed in a basket, with a little blanket folded over it and a hot water bottle placed next to the covering. Later, when the nurse went to bathe and dress the baby, she found that it was badly burned by the hot water bottle, the injuries proving to be so serious that the child died within a week. It appeared that the nurse in question had been in training for 3 years, and had passed the state examinations entitling her to graduation as a trained nurse. The defendant was a charitable institution, conducted by a religious order solely for benevolent purposes, and all of its income from pay patients and other sources was used in furtherance of these purposes. It was alleged, however, that neither plaintiff nor her husband was aware of the charitable nature of the enterprise at the time they arranged for plaintiff's reception. It did not appear that the defendant had been guilty of negli gence in the selection or retention of the nurse whose negligence caused the death of the child. In affirming a judg ment for the defendant entered upon demurrer to the plaintiff's evidence, the court held that since plaintiff was chargeable with notice of the charitable nature of the defendant corporation, her lack of actual knowledge thereof was immaterial; that if the nurse be regarded, not as a servant of the defendant, in respect of the serv ice attempted for the plaintiff, but as an independent contractor, no liability would attach to defendant for her neg. ligence; that if the nurse was in fact an agent of the defendant and was negligent as alleged, still no liability would devolve upon defendant, for the reason that the child, like the plaintiff, was a beneficiary of the charity service of fered and given by the defendant in a measure sufficient to bring into operation the rule, established by the weight of authority, that a charitable organi applied to those charitable uses and no other. The ninth section of its articles of incorporation, which is made a part of the answer, provides: "No person shall ever derive private pecuniary profit from the operations of this association.'' The trustees are elected by the persons who contribute to providing the funds for the operations of the hospital. The appellant offered a demurrer to each of the two last paragraphs of the answer. The court held that each of them presented a complete defense to the matters pleaded in the petition, and hence overruled each of the demurrers, and, appellant declining to further plead, the petition was dismissed, and appellant has appealed. (a) It is readily apparent that the third paragraph which presents the defense of contributory negligence is not a complete defense to the allegations of the petition, since the allegations in the petition fail to show that the appellee is a charitable institution, and contributory negligence is not a defense where the employment is unlawful, as it would be if the appellant was under the age of 16 years, as alleged in the petition. Casperson v. Michaels, by, etc., 142 Ky. 314, 134 S. W. 200; Smith's Adm'r v. National Coal & Iron Co., 135 Ky. 671, 117 S. W. 280; Louisville, H. & St. L. Ry. Co. v. Lyons, 155 Ky. 396, 159 zation is not liable to a beneficiary Plaintiff brought suit against the defendant hospital corporation, alleging that while he was a patient in the hospital, an attendant in its service negligently administered a certain treatment to him, whereby he was seriously and permanently injured. The suit was defended solely upon the ground that the hospital was a public charity and, as such, exempt from liability for the neg ligence of its employees. The trial court, after hearing the evidence, directed a verdict for the defendant and rendered judgment accordingly. On appeal, it was urged that the trial court should have submitted to the jury the issue of negligence and also the issue tendered on the claim that the defendant was a charitable enterprise, within the meaning of the rule contended for. It was further argued that the evidence not only failed to show the defendant to be a charitable enterprise as claimed but conclusively showed the contrary to be the case. The testimony showed that the defendant hospital was operated by a religious order as one of a large number of hospitals located in various parts of the world, each hospital being operated under a distinct corporation or community responsible to central au S. W. 971, 48 L. R. A. (N. S.) 667; Higgins Mfg. Co. v. Griesinger's Adm'r, 145 Ky. 1, 139 S. W. 1059; Stearns Coal & Lumber Co. v. Tuggle, etc., 156 Ky. 714, 161 S. W. 1112; Carter Coal Co. v. Love, 173 Ky. 49, 190 S. W. 481. (b) The fourth paragraph was the one upon which the action of the trial court was chiefly rested, and, if it presents a complete defense to the cause of action set out in the petition, the judgment must be affirmed. There is no precedent in this jurisdiction upon which the rights of the parties having such relations to each other as those in this record can be appealed to for our guidance. There has been no adjudication, so far as our research has extended, in this jurisdiction, involving the right of an employee of a charitable institution, which is not conducted by the state, county, or municipality, to recover damages against it for a personal injury incurred through the negligence of the officers, servants, agents, and employees of the institution. It seems that there would be no other way for a claim to be made against such an institution, since its affairs must all be conducted by its servants. and agents, although there are some cases which hold that there are certain nondelegable duties which the corporation in itself must see to; but it is impossible to see how such a corporation could act, except through its managers, servants and employees. In Cook v. Norton thority. It appeared that the plant of the hospital was in part donated by citizens of the locality where it was situated, and in part purchased by funds furnished by the central organization. It likewise appeared that while the hospital received and cared for a considerable number of pay patients, of which the plaintiff was one, its income from this source had never equalled its expenses, and the testimony showed that if at any time there was a surplus of income over expense, such surplus would be devoted to the charitable purposes of the order generally. Members of the corporation received no profit from the hospital, but the resident physician and certain minor attendants were on salary. It was held that the evidence justified the conclusion of the trial court that the enterprise was charitable in character, and its direction of a verdict on the ground that the trust funds of the hospital could not be diverted from the purpose to which they were devoted, in satisfaction of liabilities growing out of the negli gence of the hospital attendants, whatever might be the rule if the negligence alleged were that of the hospital itself. Barnes v. Providence Sanitarium (Tex. Civ. App.), 229 S. W. 588 (1921). Plaintiff alleged that while she was a patient at the defendant hospital, paying the regular charges for the services rendered, she was injured by the negligence of nurses employed by the hospital. Her testimony, while tending to support these allegations, failed to show any negligence on the part of the defendant in the employment of its hospital attendants, including the nurses. It appeared also, that the defendant was incorporated as a charity and freely received, at all times, patients unable to pay for their own care, so that while the majority of its patients did pay, the hospital, as a whole, did not operate at a profit, but suffered an annual loss exceeding $18,000, which Memorial Infirmary, 180 Ky. 330, 202 S. W. 874, L. R. A. 1918E, 647, recently decided, a patient in that institution was denied damages for torts suffered from the negligence of the attendants and servants. The institution was similar to the appellee here, in that it was conducted by private persons, and was in no sense a governmental agency; but the complainant was a patient, and not an employee, and the courts in all the jurisdictions in this country, except possibly two or three, deny damages to a patient for torts suffered in such an institution, on account of the negligence of its servants. In Williamson v. Louisville Industrial School of Reform, 95 Ky. 251, 24 S. W. 1065, 15 Ky. Law Rep. 629, 44 Am. St. Rep. 243, an inmate, who was a beneficiary of the institution, sought damages against it, because of a tort inflicted by the malicious act of an employee; but the right was denied upon the ground that the institution was supported by taxation and state aid, and was an agency of the government for the reformation of delinquent children. In Ketterer's Adm'r v. State Board of Control et al., 131 Ky. 287, 115 S. W. 200, the action was for maltreatment of an inmate, resulting in his death, by the servants of the institution. The institution was the Eastern Kentucky Asylum for the Insane, which is conducted, maintained, and controlled by the state government. The recovery was denied, upon the ground that was covered by voluntary donations. The trustees served without pay, but the hospital staff was salaried. On this showing the court sustained a judgment dismissing the complaint, holding that the plaintiff was, to some extent at least, the beneficiary of the charity for which the defendant was organized to dispense, and hence had impliedly contracted to exempt the benefactor from liability for the consequences of negligence on the part of its servants. Burdell v. St. Luke's Hospital, 37 Cal. App. 310, 173 Pac. 1008 (1918). In Deming Ladies' Hospital Ass'n v. Price, 276 Fed. 668 (1921), plaintiff alleged that while she was a patient in the defendant's hospital, and unconscious as the result of the use of an anesthetic administered prior to the performance of an operation for the removal of her appendix, a nurse in the defendant's service negligently placed, in close proximity to her legs, a metal hot water vessel containing water at a high temperature, with the result that she was seriously burned, causing painful and permanent injury. Defendant denied that the nurse was its agent or servant, and further pleaded that it was operating the hospital as a strictly charitable enterprise, receiving no profit therefrom and devoting its entire income, including sums paid by plaintiff and other patients to the furtherance of its benevolent purposes. Appeal was taken from a judgment recovered by the plaintiff, on the ground that the court erred in refusing to instruct the jury that if defendant's hospital was in fact a charitable institution it could not be held liable in this suit, and upon other grounds not material here. Reversing the judg ment, the court held that by the weight of authority the trial court erred in refusing the instruction above stated. Morrison v. Henke, 165 Wis. 166, 160 N. W. 173 (1916), was an action to recover damages for personal injuries sus the policy of the law made both the state and the officials of such institution immune from damages on account of malicious or negligent acts of the employees. The officials here referred to were the members of the state board of control and the superintendent of the asylum; the reason truly being that the institution was an arm of the government and performing a governmental duty. In Leavell v. Western Ky. Asylum for the Insane, 122 Ky. 213, 91 S. W. 671, 28 Ky. Law Rep. 1129, 269, 12 Ann. Cas. 827, an employee sued the institution and sought damages because of a personal injury suffered on account of the act of an irresponsible lunatic, in starting certain machinery. in motion in the laundry of the institution. The lunatic was an inmate, and the servants in charge of the asylum permitted the lunatic to work in the laundry. The claim of damages was denied upon the grounds that the asylum was a governmental agency, the rule of respondeat superior did not apply, and also that the funds of the institution were held upon trust, which could not be violated. The first of the grounds was, however, amply sufficient, and there doubtless it should have been rested. In I. C. R. R. Co. v. Buchanan, 126 Ky. 288, 103 S. W. 272, 31 Ky. Law Rep. 722, it was held that, where a railroad company set up a hospital for its employees, which was supported by certain contributions of the employees, the company having the tained by the plaintiff while a patient at the defendant hospital, under the care of the two defendant physicians. The injuries were caused by the alleged negligent placing of a hot water bag in such close proximity to plaintiff's legs that they were badly burned, the alleged tortfeasor being a nurse employed by the hospital and placed in charge of the plaintiff. The jury found that there was no evidence of negligence on the part of the physicians, except in permitting the nurse in question to attend plaintiff, but found the nurse to have been negligent as charged. The court set aside the finding against the physician as unsupported by the evidence, and dismissed the action as to the defendant hospital, in whose service the nurse was acting, on the ground that it was a charitable corporation and hence not liable for the torts of its servants. The judgment so established was affirmed, the court holding that the defendant hospital, performing a quasi public function in ministering to the poor and the sick, was exempt from the operation of the rule of respondeat superior so far as injuries to beneficiaries of its charity were concerned, and that the exemption applied likewise in a case like that at bar, where the patient paid for the services he received. Plaintiff became a patient at the defendant hospital for the purpose of having a hip fracture reduced. After the operation and while he was still under the influence of the anesthetic, he was placed in a bed which was being kept warm by means of several hot water bottles. In some unexplained manner one of these bottles got under his shoulder, remaining there long enough to cause severe burns. To recover damages for the injury thus sustained, plaintiff brought this action, alleging that the proximate cause thereof was the negligence of the nurse whom defendant had placed in charge |