This is an appeal by the defendant from a judgment in favor of the plaintiff for the sum of $1,550 damages suffered by him while an inmate of defendant’s hospital, from the negligent and unskillful conduct of defendant’s surgeon in setting his fractured leg. No quеstion is made by the appellant as to the sufficiency of the evidence to justify the verdict as to amоunt, or as to the negligence of the surgeon, but the sole question is as to the liability of the defendant therefor.
The plaintiff was admitted to the defendant’s hospital for surgical treatment upon the terms of paying for thе operation fifty dollars, and for a separate room, if occupied by him, three dollars, or if occupying the general ward, two dollars per day. The operation was performed by the surgeon-in-chiеf of the society, who is paid by the month, the amounts received from the plaintiff going to the society. From this statement it it clear that the contract of the plaintiff was with the defendant, and that the surgeon was merely its servant or agent. The defendant, therefore, unless excepted from the general rule of
respondeat superior,
is liable for his nеgligence. (Deering’s Civ. Code, see. 2338, and eases cited.) But the contention of the appellant is, that it is a charitable institution, and that, as such, in the absence of allegation or proof of negligence fix their selection, it is not liable for the negligence of its servants. Two questions are thus presented,—the one аs to the legal proposition involved, the other as to the character of the association. In support of the legal proposition, numerous authorities are cited by the appellant; and, thоugh the proposition is not altogether undisputable, either on principle or authority, it may, for the purрoses of the decision, be assumed to be correct.
(Ward
v.
St. Vincent’s Hospital,
From the by-laws of the defendant, of date May 10, 1854, it appears that the society was originally organized as a voluntary association, but was afterwаrds incorporated by the filing of a certificate of election of trustees, June 7, 1854, (Hittell’s Gen. Laws, art. 1024); and оn May 5, 1895, new by-laws were adopted. From these it appears that “the society is established on the basis оf mutuality for the treatment of sick members,” or, as more specifically provided, for the purpose of securing to its members (without payment otherwise than of dues) medical and surgical treatment, including the servicеs of its physicians, surgeons, apothecaries, dentists, nurses, etc., and also medicines. Nor do we find in it any prоvision for assistance to others, except to paying patients, or sick persons not members, admitted to treatment for agreed compensation. It is therefore merely an association for mutual рrofit or benefit, similar in its essential nature to other societies formed for such purposes.
(Gorman
v.
Russell,
In reaching this сonclusion we have not left out of view the original by-laws of the society, which are apparently much relied on by the appellant. But assuming it was within the powers of the society to adopt the new by-laws (abоut which there seems to be neither doubt nor dispute), the former must be regarded as superseded by the latter, аnd therefore as immaterial to the question involved, which is as to the present character of the sоciety. Our conclusion, however, would be in no way affected, were the society still operating under its оriginal by-laws. These, indeed, permit, and even contemplate, the exercise of charity as one of the aims of the society, but there is nothing in them requiring the application of the funds of the society to such рurposes
(Donnelly
v.
Boston Catholic Cemetery,
*478 Other points urged on behalf of appellant may be briefly disposed of.
Of the eases cited by its counsel relating to railroad surgeons, etc., all except three are cases of treatmеnt of injured employees or others by surgeons gratuitously furnished by defendants. In each of them the decision was rested exclusively on that ground, which has no .application here.
(Secord
v.
St. Paul etc. R. R. Co.,
The excepted cases relate to hospitals maintained by railroad companies for the free treatment of its employeеs, partly supported by monthly deductions from the pay of the latter, and partly by the company, which, it was hеld, are to be regarded as charitable institutions.
(Union Pac. R. R. Co.
v.
Artist,
The decisions as to steamship surgeons, also cited by appellant’s counsel, stand upon considerations peculiar to the cases involved, and come within the exception provided in section 2338 of the Civil Code, cited supra.
The remаining point urged by appellant is not altogether clear, but it seems to be, that the surgeon was a sub-agent appointed by the defendant as agent of the plaintiff, and therefore the agent of the latter. It is hardly nеcessary to say that the contention is without merit.
We advise that the judgment appealed from be affirmed.
Haynes, C., and Gray, C., concurred.
For the reasons given in the foregoing opinion the judgment appealed from is affirmed.
McFarland, J., Lorigan, J., Henshaw, J.