had established. It was said in the course of the opinion in that case, that "It is impossible to conceive of the endless complications and embarrassments which such a doctrine would involve, and of the extent to which the public interests would thereby suffer. It is safe to assume that if such were recognized as the law, no town would voluntarily assume corporate functions, and that every industrial and commercial interest would become paralyzed." The recent case of Bryant v. City of St. Paul, 21 Central L. Jour. 33, is directly in point. It was there held that a city was not liable for the misfeasance of members of the board of health selected by the city. Many authorities are cited in the note appended to that case, and from them it appears that the doctrine that public corporations to whose officers governmental powers are delegated, are not responsible for the negligence of the officers in the exercise of these governmental powers. This doctrine has long prevailed in this State. (Brinkmeyer v. City of Evansville, 29 Ind. 187; Robinson v. City of Evansville, 87 Ind. 334 (44 Am. R. 770); Faulkner v. City of Aurora, 85 Ind. 130 (44 Am. R. 1); City of La Fayette v. Timberlake, 88 Ind. 330.

We have many cases holding that counties, townships and cities are instrumentalities of government, and it must, therefore, be true that where they act simply as the local government they act for the State. As the State is not liable for the acts of its officers, neither can the public corporations be held liable for the acts of their officers in the exercise of political powers. (Robinson v. Schenck, 102 Ind. 307; Justice v. City of Logansport, 101 Ind. 326; Kistner v. City of Indianapolis, 100 Ind.

210.

There is no more reason for holding counties liable for the negligence of the commissioners in the exercise of the governmental functions delegated to them, than there is for holding cities liable for the acts of their firemen or police officers, or for holding counties and townships responsible for the torts of sheriffs and constables. In providing for the care of the poor, a police power which resides primarily in the sovereignty is exercised, and neither the sovereign nor the local governing body to whom such a power is delegated is responsible for the misfeasance of its officers.

Judgment affirmed.

HIGGINS v. MCCABE.

(126 Mass. 13. — 1878.)

TORT. The declaration alleged that the defendant while employed as midwife by plaintiff's mother, pretending to be competent and skillful in treating diseases of the eyes, such as plaintiff then had, undertook the treatment of plaintiff, and so negligently and unskillfully treated the plaintiff that the plaintiff became totally blind.

COLT, J. This action proceeds upon the ground that the defendant failed to discharge a legal duty which she owed the plaintiff, resulting in the injury complained of. The question is whether the evidence relied on by the plaintiff would justify a verdict in favor of the child; and, in the opinion of a majority of the court, it would not. It appears that the defendant was originally employed only as a midwife. The parents had employed her twice before in that capacity. There was no competent evidence that the treatment of diseases of the eyes which might be developed in the child was embraced in the duties which the defendant undertook as midwife; and there is no evidence that the defendant was unskillful or negligent in the performance of any of the duties with which she was properly chargeable in that capacity.

But it is insisted that, independently of the employment as midwife, the jury upon this evidence might properly find that the defendant, professing to have superior skill and experience, held herself out as competent to cure this particular disease, and thereupon was permitted by the mother to assume the treatment of it. The evidence on which it is sought to charge the defendant with this additional duty is found in the testimony of the mother; and that testimony must be construed with reference to the character and relation of the parties, and the admitted facts in the case. The services of the defendant in respect to the cure of this disease were wholly gratuitous; they were performed as acts of benevolence only. The defendant was a midwife; the jury would not be justified in finding that she claimed to pos

sess, or might reasonably be expected from her calling to have, the peculiar knowledge, skill, and experience of an expert in such matters. The representations of the defendant, that she could cure the child with simple remedies and washes, that she had cured other children in the same way who were similarly afflicted, and that there was no need of a doctor, were but the expression of an opinion as to the efficacy of her remedies, and did not imply that she undertook to use that higher skill of the medical profession which is required in the treatment of the more complicated and delicate organs. The question was whether she had discharged the duty which she assumed with that skill she professed to have, and with that diligence which might reasonably have been expected of her. Upon that question, the fact that the service was rendered without compensation must have an important if not decisive bearing.

It is often said, that a gratuitous agent is liable for gross negligence only; but, without regard to degrees of negligence, it is plain that the duty imposed upon such an agent is less stringent than when the service undertaken is founded upon a consideration paid.

Under the rule requiring ordinary care as applied to this case, we see no evidence of neglect in any degree. A physician must apply the skill and learning which belong to his profession; but a person who, without special qualifications, volunteers to attend the sick, can at most be only required to exercise the skill and diligence usually bestowed by persons of like qualifications under like circumstances. To hold otherwise would be to charge responsibility in damages upon all who make mistakes in the performance of kindly offices for the sick. (Gill v. Middleton, 105 Mass. 477, 479; Leighton v. Sargent, 11 Foster, 119; Simonds v. Henry, 39 Maine, 155; Lanphier v. Phipos, 8 C. & P. 475; Hancke v. Hooper, 7 C. & P. 81.)

The defendant was attentive and diligent in her treatment of the child, and in the use of the remedies she proposed. There was evidence, it is true, from regular physicians, that, if other and more powerful remedies had been seasonably applied, they would probably have effected a cure; but these were remedies known to the medical profession, of which the defendant neither had nor professed to have knowledge. It was not a case where

the defendant, as in the cases cited by the plaintiff, assumed to act as a regular surgeon or a regular practitioner. (Ruddock v. Lowe, 4 F. & F. 519; Jones v. Fay, 4 F. & F. 525.)

HAIGHT, J. This action was brought to recover damages of the defendant, a physician and surgeon, for alleged malpractice suffered by the plaintiff while undergoing treatment as a patient. On the 1st day of December, 1889, the plaintiff undertook to jump on to an engine of the Ulster & Delaware Railroad, in the city of Kingston, and in doing so slipped, and his left foot was caught by the tender, and a portion thereof crushed. Being destitute, he was taken to the city almshouse, where he was treated by the defendant, who was one of the city physicians having the care of the patients therein, and who was employed for that purpose. Thereafter, and on the 10th day of December, he amputated the plaintiff's leg above the ankle-joint, and six or seven days thereafter, gangrene having set in, he again amputated the leg, at the knee-joint. After the second amputation the leg did not properly heal, but became a running sore, and at the time of the trial the bone protruded some three or four inches. Evidence was given upon the trial from which the jury might find that the bones of the foot were so crushed that immediate amputation of the injured portions was necessary, and that the appearance of gangrene was in consequence of the delay of ten days in the operation; and that in the second operation the defendant neglected to save flap enough to cover the end of the limb and bone, and that the subsequent protrusion of the bone was owing to this neglect. The question of the defendant's liability consequently became one for the jury. We are aware that he claimed to have waited ten days before operating for the purpose of seeing whether the foot could not be saved, and that a physician and surgeon will not be held liable for mere errors in judgment. But his judgment must be founded upon his intel

ligence. He engages to bring to the treatment of his patient care, skill, and knowledge, and he should have known the probable consequences that would follow from the crushing of the bones and tissues of the foot.

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The defendant moved to dismiss the complaint upon the ground that it failed to show a contract relation between the parties, whereby the defendant was employed to attend the plaintiff, and that no facts were alleged showing it to be the duty of the defendant to treat him in skillful manner. This motion being denied, the defendant asked the court to charge that, as the defendant treated the plaintiff gratuitously, he is liable, if at all, only for gross negligence, which was refused. It has been held that the fact that a physician or surgeon renders services gratuitously does not affect his duty to exercise reasonable and ordinary care, skill, and diligence. (McCandless v. Mc Wha, 22 Pa. St. 261-269; Me Nevins v. Lowe, 40 Ill. 209; Gladwell v. Steggall, 5 Bing. N. C. 733.) But we do not deem it necessary to consider or determine this question, for it appears that the plaintiff's services were not gratuitously rendered. He was employed by the city as one of the physicians to attend and treat the patients that should be sent to the almshouse. The fact that he was paid by the city instead of the plaintiff did not relieve him from the duty to exercise ordinary care and skill. The judgment should be affirmed, with costs.

PER CURIAM. The wrong of which the plaintiff Eva Ewing complains was a collision of cars upon the railway of the defendant company, in consequence of which the cars "were broken, overturned, and thrown from the track, and fell upon the lot. and premises of the plaintiff, and against and upon the dwelling house of plaintiff, and thereby and by reason thereof greatly endangered the life of the said Eva Ewing, then being in said