NEGLIGENCE OF RUBLIC TRUSTEES. I. Liability of Charitable Hospitals for Negligence of their Surgeons. III. Cases to which this Principle extends. (1.) Ministerial Public Officers. (2) Private Corporations owning Public Works. (4.) Municipal Corporations. IV. Payment of Damages out of Trust Funds. I. Liability of Charitable Hospitals for Negligence of their Surgeons. The Supreme Court of Rhode Island has lately decided that a corporation which maintains a hospital as a public charity, receiving its income mainly from endowments and voluntary contributions, charging patients only for board, warmth, washing, and nursing, and furnishing them medical and surgical attendance gratuitously, that is, calling in for them, when necessary, certain physicians and surgeons who give their services to patients of the hospital without charge, is liable in damages out of its corporate funds for an injury to a patient by the negligence of its surgical interne, the same being a medical student who is required to attend constantly at the hospital, but who receives no other compensation for his services than his board, lodging, and the experience thereby acquired. This decision acquires interest from the fact that the Supreme Judicial Court of Massachusetts decided otherwise in a much similar case.2 In that case a hospital patient sued the corporation for unskilful surgical treatment by a house pupil, a functionary similar to a surgical interne. There was no evidence of any want of care in selecting the house pupil, and the court held I Glavin v. Rhode Island Hospital, 9 Cent. L. J. 329. Opinions by Durfee, C. J., and Potter, J. 2 McDonald v. Massachusetts General Hospital, 120 Mass. 432. that without such evidence the action could not be maintained, and at the same time strongly intimated an opinion that it could not be maintained even with such evidence, for the reason that the corporation could not be held to have agreed to do more than furnish hospital accommodations, which the plaintiff had had, and for the further reason that any judgment recovered against the corporation could only be satisfied out of funds which, being dedicated to the charity, could not be lawfully used to pay it. The Massachusetts court proceeded on the authority of Holliday v. St. Leonard,' a case the doctrine of which has been since overturned by a case in the House of Lords, and other cases in the same country. These cases hold that a board or body having work to do for the public gratuitously are liable for the torts of their servants or employees, the same as a private business corporation, provided they have funds or are in receipt of an income out of which a judgment against them can be satisfied. II. The Principle governing such Liability stated. — The governing principle of the Rhode Island case appears to the writer to be that embraced in the reasoning of Potter, J., and which may be stated thus: Whenever an individual or a corporation undertakes the performance of a duty for another, whether for reward or gratuitously, he or it is bound to discharge such duty: where it is undertaken for a reward, with the skill and diligence of a good business or professional man who undertakes to perform like services; and where it is undertaken gratuitously, with ordinary care and skill, that is, with the care and skill which grows out of ordinary social relations, that which pertains to good neighborhood or fair dealing; and that for a failure, in either of these cases, to perform with the requisite care and skill I 11 C. B. (N. s.) 192; s. c. 8 Jur. (N. S.) 79; 30 L. J. (C. P.) 361; 9 Week. Rep. 604; 4 L. T. (N. S.) 406. 2 Mersey Docks Trustees v. Gibbs, 11 H. L. Cas. 686; L. R. 1 H. L. 93; Foreman . Mayor of Canterbury, L. R. 6 Q. B. 214; Coe v. Wise, L. R. 1 Q. B. 711; 5 Best & S. 440, 458; Winch v. Conservators of the Thames, L. R. 7 C. P. 458; s. c. L. R. 9 C. P. 378. the duty undertaken, an action lies on behalf of the party in favor of whom such duty was undertaken. In all such cases, as stated by Mr. Justice Grier in a leading case, the confidence induced by undertaking to perform such a service is a sufficient consideration to create a duty in the performance of it.' III. Cases to which this Principle extends. — Among the cases to which this principle extends may be mentioned, — 1. Ministerial public officers who act distributively for. individual members of the public; 2. Private corporations which act distributively for the public; 3. Corporations holding public offices; 4. Municipal corporations, when acting in the discharge of private duties undertaken for members of the public distributively, but not when acting in their public or governmental capacity. Let us examine these separately. (1.) Ministerial Public Officers acting for Individuals. - We may leave out of view in this discussion that numerous class of officers legislative, judicial, and administrative - whose duties require the exercise of discretion, and confine ourselves to those who act ministerially, that is, who are required to obey the mandates of positive law. The duties of such officers are either (1) duties which the officer owes to the State exclusively, just as an agent owes duties to his principal, or (2) duties which he owes to individuals distributively. If the duty is of the former class, and the officer fails to perform it, or performs it in an imperfect manner, he is answerable for his dereliction only to his principal,— that is, to the State or the municipality whose officer he is. If the duty is of the latter class, he is answerable for its non-performance, or for its imperfect performance, to the particular individual who has the right to claim its performance at his hands, or for whom he has undertaken to perform it. Mr. Justice Cooley has happily illustrated the distinction be 2 2 1 Philadelphia etc. R. Co. v. Derby, 14 How. 468, 485. Liability of Public Officers. St. Louis: G. I. Jones & Co. (Pamphlet. tween these two classes of officers by taking the case of a policeman. He goes to sleep on his beat, and a robbery is committed which would not have been committed had he remained awake and attending to his duty. Yet, although the municipality whose officer he is may punish him for his neglect of duty by depriving him of his office, or otherwise as provided by law, he is not answerable for the damages suffered by the person robbed. There is no privity between them. He is the officer of the city, and not of the citizen. Take, again, the case of an overseer of highways. From his mere neglect to discharge his duty and keep the highway in repair, a traveller may suffer grievous damage; yet it has been frequently decided in England and in this country that the traveller thus injured cannot maintain an action against him, for the same reason which obtains in the case of the policeman. He is an officer of the public, and not of the traveller. In conformity with this doctrine, it has been held Young v. Davis, 7 Hurl. & N. 760 (affirmed in Exchequer Chamber, 2 Hurl. & Colt. 197). Chief Baron Pollock, in the court below, ruled the case on the authority of McKinnon v. Penson, 8 Exch. 319 (in error, 9 Exch. 609). This view of the non-liability of such officers is taken by some courts in this country (Bartlett v. Crozier, 17 Johns. 438 (reversing s. c. 15 Johns. 250); Garlinghouse v. Jacobs, 29 N. Y. 297; Young v. Commissioners of Roads, 2 Nott & M. 538; Nobles v. Langley, 66 N. C. 287; Tyson v. Commissioners of Baltimore County, 28 Md. 510; Walter v. Commissioners of Wicomico County, 35 Md. 385; Ball v. Winchester, 32 N. H. 435), and denied by others. Hover v. Barkhoof, 44 N. Y. 113; Robinson v. Chamberlain, 34 N. Y. 389; Smith v. Wright, 24 Barb. 170; Bryan v. Landon, 3 Hun, 500; s. c. 5 N. Y. S. C. (T. & C.) 594; Rector v. Pierce, 3 N. Y. S. C. (T. & C.) 416; Day v. Crossman, 4 N. Y. S. C. (T. & C.) 122; Bostwick v. Barlow, 14 Hun, 177; McCord v. High, 24 Iowa, 336. It was also ruled in England that turnpike trustees were not personally liable for damages happening to travellers in consequence of the negligence of those whom they were obliged to employ to keep the turnpike in repair; they were answerable only for their own personal defaults. (Harris v. Baker, 4 Mau. & Sel. 27; Humphreys v. Mears, 1 Man & R. 187; Hall v. Smith, 2 Bing. 156). And the same rule has been declared by the House of Lords under the law of Scotland, which in this respect is the same as the law of England. Duncan v. Findlater, 6 Cl. & Fin. 894. This rule, as we shall see, does not apply to incorporated boards charged with the same duty, who have a fund out of which damages may be paid. Infra, (3). An exception to this rule has been declared in New York with reference to the liability of contractors for the repair of public canals belonging to the State. These persons are held by the courts of that State, on grounds not sound in principle, but sustained, perhaps, by views of public policy, liable in damages in England that a civil action does not lie against the postmaster-general. The same doctrine has been applied in this country to the case of a deputy or local postmaster and his assistants, duly appointed and qualified. These, in like manner, are regarded as the agents and servants of the government; who are liable for their own acts and defaults, and not as the agents and servants of the postmaster, for whose acts and defaults he is the insurer. So the trustees of a union school-district in New York have been held not liable in their personal capacity for failing to keep a schoolhouse in repair,3 and the same reasoning has exempted a municipal corporation from the same liability. But in apparent conflict with this doctrine, it has been held in Virginia that a mail-contractor is responsible in a civil action to the owner of a letter for the negligence of his servant in losing it.s To the class of public officers who act distributively for individuals belong clerks of courts, notaries-public, recorders of deeds, sheriffs, constables, coroners when executing civil to any person using the canal, for any injury he may have sustained by their neglect to perform the duty of keeping their respective sections of the canal in repair. Adsit v. Brady, 4 Hill, 630; Fulton Fire Ins. Co. v. Baldwin, 37 N. Y. 648; Robinson v. Chamberlain, 34 N. Y. 389; Conroy v. Gale, 5 Lans. 344 (affirmed, 47 N. Y. 665); Stack v. Bangs, 6 Lans. 262; Johnson v. Belden, 2 Lans. 433 (affirmed, 47 N. Y. 130). Under the statutes of Mississippi, bridge contractors who engage with the police boards of the counties to keep the county bridges in repair for stated periods, and who seem to occupy, with reference to what they undertake, substantially the same position as canal contractors in New York, are liable to travellers for the damages they may sustain in consequence of their bridges being suffered to get out of repair. Sutton v. Board of Police, 41 Miss. 236. 1 Lane v. Cotton, 1 Ld. Raym. 646; Whitfield v. Le Despencer, Cowp. 754. 2 Schroyer v. Lynch, 8 Watts, 453; Wiggins v. Hathaway, 6 Barb. 632; Dunlop v. Monroe, 7 Cranch, 242; Bolan v. Williamson, 1 Brev. 181. 3 Bassett v. Fish, 19 Alb. L. J. 160 (reversing s. c. 12 Hun, 200). 4 Hill v. Boston, 122 Mass. 344; infra, (4). 5 Sawyer v. Corse, 17 Gratt. 230. In this case Joynes, J., made the following statement, which is evidently too broad: "It is well settled that a public officer, or other person who takes upon himself a public employment, is liable to third persons in an action on the case for any injury occasioned by his own personal negligence or default in the discharge of his duties." 6 Houseman v. Girard Mutual Building Assn., 81 Pa. St. 256; McCarraher |