12 R.I. 411 | R.I. | 1879
Lead Opinion
This is an action on the case to recover damages for unskilful and negligent surgical treatment. The declaration sets forth that the plaintiff, having received an injury in his hand and fingers for which he was in need of surgical and medical treatment and care, gave himself into the charge of the defendant corporation, who were owners of a large hospital where they were in the habit of receiving persons needing such treatment and care, and of treating and caring for them for hire; and that, in consideration of being so received and treated with skill and care, he promised to pay the defendant corporation a reasonable compensation therefor, and that the defendant corporation in consideration thereof, received him and promised to supply him with such surgical and medical treatment, skill, and attention as were necessary for the care and cure of his injuries. The declaration also sets forth that the corporation, its officers, agents, and servants, regardless of its and their duty, neglected properly to care for the plaintiff and his injuries, or to supply such medical and surgical treatment as was needed for their care and cure; but on the contrary conducted so carelessly, improperly, and unskilfully, that his hand and fingers by reason thereof became ulcerated and gangrenous, and likewise his arm, so that his life was endangered and his arm had to be amputated at or near the shoulder, c. The declaration also contains counts charging the defendant corporation with a neglect of duty in other ways, and especially in that, regardless of the obligation incumbent on it, it neglected to provide careful, competent, and skilful officers, agents, and servants to care for, attend to, and treat him and his injuries.
On the trial to the jury the plaintiff submitted testimony to show that on the 3d of October, 1873, he had two fingers of his right hand accidentally sawed off by a circular saw in a lumber yard where he was employed; that he was immediately taken to the hospital, where he was received by the superintendent, and committed to the care of the surgical interne, who etherized him and undertook to dress his wound; that a profuse hemorrhage occurred, being occasioned, as the plaintiff claims, by the negligence or unskilfulness of the interne; that the interne, after repeatedly trying in vain to arrest the hemorrhage by ligating the arteries, applied a tourniquet to the plaintiff's arm so tightly *421 as to stop circulation, and kept it applied for nearly seventeen hours, before the arrival of a surgeon who was skilful enough to ligate the arteries; that the plaintiff, in consequence, suffered excruciating pain, his arm being enormously swollen, and that afterward his arm mortified so that he had to have it amputated, and did have it amputated, after leaving the hospital, just below the shoulder joint.
The plaintiff also submitted testimony to show that his injury was such, especially in view of the hemorrhage, that some one of the experienced surgeons, attendant on the hospital, should have been immediately summoned; but that, in fact, no one of them was sent for until after nearly nine hours, and no one came until after nearly seventeen hours, though there were four, subject to call, residing and having their offices within a mile of the hospital. Further testimony was introduced by the plaintiff showing the treatment which he received both while he was in the hospital and after he left; showing the degree of care which was used in selecting the interne, and showing the charter of the corporation and the rules and regulations in force in 1873. It appeared that the plaintiff was taken from the hospital by his friends against the advice of the surgeon, and that when he left, October 22, 1873, a bill for board and attendance at $8.00 per week, amounting to $21.71, was presented to him in behalf of the defendant corporation, which was subsequently paid.
For the defendant corporation testimony was introduced to explain the management of the hospital generally, as well as the circumstances of the case of the plaintiff, and to show that there was no want of reasonable care, skill, and diligence on the part of the defendant corporation. Testimony was also introduced to show that the hospital was administered as a charity; that its income was derived mainly from its endowments and from voluntary contributions; that the physicians and surgeons attendant on the hospital, and the medical and surgical internes, gave their services without compensation, except that the internes, who were required to be constantly in attendance, had their board and lodging in the hospital, and that the bill which was rendered to the plaintiff was designed only to cover board, washing, warmth, and the services of nurses and ward tenders.
After the introduction of the testimony and the argument of *422 the case to the jury, the court instructed the jury that no testimony had been submitted which entitled the plaintiff to a verdict for damages, and directed the jury to return a verdict for the defendant corporation. The ground of the instruction was, that the defendant corporation being the dispenser of a public charity, and being dependent for its support, in a great measure, on voluntary grants and contributions, was, for reasons of public policy, exempt from liability for any negligence or unskilfulness on the part of its trustees, agents, servants, physicians, or surgeons, or of its medical or surgical internes; and that if any patient in the hospital suffered injury in consequence of any such negligence or unskilfulness, his remedy, if any he had, was to prosecute the person or persons who were directly chargeable with the negligence or unskilfulness, and not to bring his action against the defendant corporation.
The plaintiff contends that this instruction was erroneous, and that he was entitled to recover, first, because the defendant corporation delivered him over to an incompetent and unskilful interne, in selecting whom for his place the corporation did not exercise proper care; second, because the interne, acting within the scope of his appointment, unskilfully and negligently cared for him; third, because the interne caused his hemorrhage by his unskilfulness and negligence, andfourth, because the plaintiff being in a critical condition, it was the duty of the interne, under one of the rules of the hospital, to send immediately for some one of the attendant surgeons, and the duty of the corporation, under its charter, having established the rule, to put it in execution.
The court, in giving its charge to the jury, was guided byMcDonald v. The Massachusetts General Hospital,
The Supreme Judicial Court of Massachusetts, in the case above cited, referred to Holliday v. St. Leonard, 11 C.B.N.S. 192, decided by the Court of Common Bench in 1861, as authority for the point that the corporation was not liable to be sued for the tort of the house pupil without proof of negligence in selecting him. The doctrine enounced in Holliday v. St.Leonard is, that a corporate or quasi corporate board or body, having a public trust or duty to discharge gratuitously, is not liable for the torts of its servants or employees if it is personally without fault. The plaintiff calls our attention to cases in which Holliday v. St. Leonard has been qualified or impugned. Mersey Docks v. Gibbs, 11 H.L. 686; L.R. 1 H.L. 93;Forman v. Mayor of Canterbury, L.R. 6 Q.B. 214; Coe v.Wise, L.R. 1 Q.B. 711; 5 B. S. 440, 458. 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. Winch v. TheConservators of the Thames, L.R. 7 C.P. 458; 9 Ib. 378. The authority of McDonald v. The Massachusetts General Hospital, in so far as it rests upon Holliday v. St. Leonard, is seriously impaired by these cases; and the question arises whether it might not have been better decided on the other grounds suggested in the opinion of the court.
The other grounds suggested were two. The first was that the corporation could not be presumed to have agreed to do more than furnish hospital accommodations, and these the plaintiff had had. It is quite conceivable that a corporation might not agree to do more than furnish hospital accommodations, leaving the patient to find his own physician or surgeon. In such a case the corporation would plainly not be liable for the torts of the physicians or surgeons; for in such a case they would not be its servants and it would not have assumed any responsibility in their selection. But that is not this case. Here the physicians or surgeons are selected by the corporation or the trustees. But does it follow from this that they are the servants of the corporation? *424 We think not. If A. out of charity employs a physician to attend B. his sick neighbor, the physician does not become A.'s servant, and A., if he has been duly careful in selecting him, will not be answerable to B. for his malpractice. The reason is, that A. does not undertake to treat B. through the agency of the physician, but only to procure for B. the services of the physician. The relation of master and servant is not established between A. and the physician. And so there is no such relation between the corporation and the physicians and surgeons who give their services at the hospital. It is true the corporation has power to dismiss them; but it has this power not because they are its servants, but because of its control of the hospital where their services are rendered. They would not recognize the right of the corporation, while retaining them, to direct them in their treatment of patients.
But though the relation of master and servant cannot be said to exist between the hospital and the physicians and surgeons attendant on it, the hospital does nevertheless assume a responsibility, in that it uses its own judgment, or that of its trustees, in selecting them, and impliedly, therefore, undertakes to exercise reasonable care to get such as are skilful and trustworthy in their professions. A patient has a right to rely on the exercise of such care, and consequently if, through the neglect of the hospital to exercise it, he receives an injury, he is entitled to look to the hospital for indemnity, unless the hospital enjoys some extraordinary exemption from liability.
In the case at bar, however, the injury was not received from a physician or surgeon, but from a surgical interne, and it may be that a surgical interne stands on a different footing. There are some cases of minor importance in which the internes are allowed to act as physicians and surgeons; and in such cases I think that their relation to the corporation does not differ from that of a visiting physician or surgeon. But the internes act in still another capacity. The corporation undertakes to furnish physicians and surgeons for all kinds of cases, including the most critical. It has a regular staff of physicians and surgeons. But inasmuch as these are not, like the internes, constantly in attendance at the hospital, they must frequently be sent for. The corporation undertakes to send for them, and of course it must do *425 it through an agent. The internes are the persons appointed to perform this duty for it. A rule of the hospital prescribes that in all cases requiring immediate and important action, in all doubtful cases, and in all cases requiring an immediate operation, the interne shall send for the surgeon of the day, and, if he cannot be found, for one of the other surgeons. Here then we have the relation of principal and agent, or master and servant. If the interne neglects to call the surgeon in the class of cases designated, his neglect is the neglect of the corporation. Now the plaintiff contends that his injury was such that under the rule a surgeon should have been immediately sent for, and that the interne's neglect to do it cost him his arm. He also contends that the corporation did not use proper care in selecting the interne, who was incompetent for his position, and thereby he suffered the injury complained of. He contends that he was entitled to recover on both these grounds, and if the evidence was sufficient to establish them, we think that he was entitled to recover on both grounds, unless the hospital enjoys some peculiar immunity.
This brings us to the important question whether the hospital does enjoy any peculiar exemption from liability. The claim that it enjoys such an exemption rests upon two grounds: to wit, on the ground of public policy, and on the ground that the hospital had no funds except such as are exclusively dedicated to the charitable uses for which it was established, and which therefore cannot be applied to indemnify a patient who has been injured by the negligence or malpractice of a physician or surgeon, or of a medical or surgical interne.
The first ground is the ground on which the plaintiff was nonsuited. The argument is that hospitals, like the Rhode Island Hospital, are a public benefit; but if they are liable for the torts of the physicians or surgeons attendant on them, or of the medical or surgical internes, or of their nurses and other servants, people will be discouraged from voluntarily contributing to their foundation and support, and therefore public policy demands that they shall be exempted from liability. In our opinion the argument will not bear examination. The public is doubtless interested in the maintenance of a great public charity, such as the Rhode Island Hospital is; but it also has an interest in obliging every person and every corporation which undertakes *426 the performance of a duty to perform it carefully, and to that extent, therefore, it has an interest against exempting any such person and any such corporation from liability for its negligences. The court cannot undertake to say that the former interest is so supreme that the latter must be sacrificed to it. Whether it shall be or not is not a question for the court, but for the legislature.
The second ground is one of the grounds suggested inMcDonald v. Massachusetts General Hospital. No authority was cited in that case except Holliday v. St. Leonard, previously mentioned. The defendants, however, have referred us to Feoffeesof Heriot's Hospital v. Ross, 12 Cl. Fin. 507, which is very much in point. Heriot's Hospital was an eleemosynary foundation created under a will for the benefit of fatherless boys. The suit was in behalf of a boy who was alleged to have been illegally refused the benefit of it. The question was whether the action would lie against the trustees as such for damages for the refusal. The House of Lords held that the plaintiff had no right to indemnity out of the trust funds. Lord Cottenham was of the opinion that to give damages out of the trust fund would be to divert it from its proper purpose. Lord Campbell thought it would be contrary to reason, justice, and common sense to sanction the suit. "Damages are to be paid," he said, "from the pocket of the wrong-doer, not from a trust fund." Lord Brougham strongly expressed the same opinion.
The authority relied on to support the decision was a decision of the House of Lords in Duncan v. Findlater, 6 Cl. Fin. 894. There the action was against trustees appointed under a public road act, to charge them in their quasi corporate capacity for an injury occasioned by the negligence of the men in making the road, and the House of Lords held that the action was not maintainable. The case resembles Holliday v. St. Leonard, and like it, in the light of the later decisions, it has no value as a precedent for any case where there are funds which can be applied to the payment of damages.
We have previously, in this opinion, cited the cases which limit the authority of Holliday v. St. Leonard. It may help us to consider the leading case more in detail. The leading case is Mersey Docks v. Gibbs, 11 H.L. 686, decided in the House of *427 Lords in 1865. The action was against a quasi corporate board charged with the duty of keeping certain docks in order, and authorized in consideration thereof to collect tolls and dock rates. The board had no interest in the rates and tolls, being bound to expend them on the docks or in the payment of a debt incurred in building them. A vessel belonging to the plaintiff was injured in entering the docks in consequence of a neglect to keep them fit for navigation. The House of Lords decided that the action for the injury would lie against the board, the plaintiff being entitled to indemnity out of the public fund. The case was decided with great deliberation, the judges being summoned in. Mr. Justice Blackburn, after advisement, delivered the unanimous opinion of all the judges who heard the case. The opinion was that such corporations, though acting without reward, are in their very nature substitutions, on a large scale, for individual enterprise, and that in the absence of anything in the statutes which create them showing a contrary intent, it must be held that their liability was intended to be, to the extent of their corporate funds, the same as that of individual owners of similar works. He also remarked that, if the true interpretation of the statute is that it casts a duty on the corporation, not only to construct the works, but also to use reasonable skill and care in their construction and in their maintenance for use, there is nothing illogical in holding that those who are injured by a neglect of the duty may maintain an action against the corporation, and be indemnified out of the funds vested in it by the statute. The case of Duncan v. Findlater was cited by Mr. Justice Blackburn in his opinion, and the language there used by Lord Cottenham, which was chiefly relied on as authority for the decision of Feoffees of Heriot's Hospital v. Ross, was expressly disapproved. It is remarkable, however, that the case of Feoffees of Heriot's Hospital v. Ross, though cited by counsel, does not seem to have attracted the attention of either Mr. Justice Blackburn or of the three learned lords who delivered concurring opinions.
The language used by Lord Cottenham in Duncan v.Findlater was criticised by Lord Westbury more pointedly even than by Mr. Justice Blackburn. He said in effect that he supposed Lord Cottenham regarded the funds of statutable boards as being in the nature of trust property, and had the idea that trust property *428 would be protected in equity from seizure and sale on execution for the torts of the trustees. He expressed the opinion that this belief was erroneous. "It is much more reasonable," he says, "in such a case, that the trust or corporate property should be amenable to the individual injured, because there is then no failure of justice, seeing that the beneficiary will always have his right of complaint and his title to relief against the individual corporators who have wrongfully used the name of the corporation."
In all the English cases decided since the decision ofMersey Docks v. Gibbs, which we have seen, the cases ofDuncan v. Findlater and Holliday v. St. Leonard, as authority for the broader doctrines declared in them, are uniformly regarded as overruled.
In view of these later decisions the question here is, whether a charitable corporation, like the Rhode Island Hospital which holds its property for the charity, is more highly privileged than a corporation created for public purposes, which holds its property for such purposes; whether, in fact, because it holds its property for the charity, it is relieved from all responsibility for the torts or negligences of its officers, trustees, agents, or servants. We have come to the conclusion, after much consideration, that it is not. We understand the doctrine of the cases which we have just been considering to be this: that where there is duty, there there is, prima facie at least, liability for its neglect; and that when a corporation orquasi corporation is created for certain purposes which cannot be executed without the exercise of care and skill, it becomes the duty of the corporation or quasi corporation to exercise such care and skill; and that the fact that it acts gratuitously, and has no property of its own in which it is beneficially interested, will not exempt it from liability for any neglect of the duty, if it has funds, or the capacity of acquiring funds, for the purposes of its creation, which can be applied to the satisfaction of any judgment for damages recovered against it. We also understand that the doctrine is that the corporate funds can be applied, notwithstanding the trusts for which they are held, because the liability is incurred in carrying out the trusts and is incident to them. We do not understand, however, that the corporate property is all equally applicable. For instance, *429 in the case of Mersey Docks v. Gibbs, it was not decided that the docks themselves could be resorted to, but only the unapplied funds which the board then had or might afterwards acquire. So in the case at bar; it may be that some of the corporate property, the buildings and grounds for example, is subject to so strict a dedication that it cannot be diverted to the payment of damages. But however that may be, we understand that the defendant corporation is in the receipt of funds which are applicable generally to the uses of the hospital, and, following the decision in Mersey Docks v. Gibbs, we think a judgment in tort for damages against the corporation can be paid out of them. Indeed, we cannot see why these funds are not as applicable to the payment of damages for tort as to the payment of counsel for defending an action for such damages. Both payments are to be regarded as incident to the administration of the trust.
Concurrence Opinion
I concur in granting a new trial but for reasons somewhat different from those given by the other members of the court.
The plaintiff sues the defendant for maltreatment by one of its surgeons, i.e. the interne, while he was at the hospital. He alleges that the defendant corporation undertook to treat him by its agents and servants, and treated him so negligently and unskilfully that he lost his arm, c., c.
It is contended on the part of the defendant that it used proper care in the selection of the surgeon, which is all it is bound to do; that it undertook to provide shelter and nursing and free medical attendance, and no more; that it did not undertake to perform the duties of a surgeon, but only to place the plaintiff in charge of its surgeon; and that on grounds of public policy, being a charitable corporation, dispensing without charge a public charity, and having no other than trust funds for the purposes of that charity, and having no other than trust funds for the purposes of that charity, it cannot be held liable for the negligence of its unpaid servants.
The arguments of counsel have been very able, but their researches have only discovered one case nearly in point,McDonald v. The Massachusetts Hospital,
We are therefore left to settle the case on general grounds.
And it seems to me that all that is requisite for the decision *430 is the application of a few simple and generally acknowledged principles.
That a private person, acting without compensation, is in many cases liable for negligence, is well settled. In Shiells v. Blackburne, 1 H. Bla. 158, Lord Loughborough declared that "If a man gratuitously undertakes to do a thing to the best of his skill where his situation or profession is such as to imply skill, an omission of that skill is imputable to him as gross negligence;" and this holding, although perhaps not necessary to the decision of that particular case, has been sustained by all the decisions and text writers since. So Judge Story, Bailments, §§ 180, 182 a, lays down the law to be that where the man's situation or employment does not necessarily imply any particular skill, he is liable only for bad faith or gross negligence, if acting gratuitously; if his situation or employment implies ordinary skill or knowledge adequate to the undertaking, he will be responsible for any injury resulting from the want of exercise of that skill or knowledge.
And Dr. Warton, after stating the cases, says that this is not only the doctrine of the common law, but was the doctrine of the old Roman law, and is that of the jurists of France and Germany of the present day. Wharton on Negligence, 2d edition, §§ 504, 640, 730. See also 1 Smith Lead. Cas. *294, *335, *337, *341.
The only difference between the case of a corporation and a private citizen is, that while a private person may do the service himself, the corporation cannot itself give the medicine or the treatment, but must do it through an agent. If a person should volunteer to pay for a physician selected by the sick person himself, there could of course be no liability. If the same person should send a physician gratuitously to a sick person, provided the physician was of reputable standing, there would be no good ground for holding the sender liable for the doctor's negligence; but suppose he should send a quack or an ignoramus, by whose treatment the patient should be seriously injured, it might well be questioned whether he ought to be free from liability unless the patient knew the character of the person sent and the risk he was incurring.
But to go a step farther: Suppose any private person, from *431 charity, undertook to furnish physicians gratuitously, and so advertised to the public, would it not be his duty to send persons of competent education and skill? And would it not be negligence in him not to do so?
The cases are numerous where a person who holds out to the public his readiness to perform the duties resulting from any particular trade or employment, and who, instead of doing the particular work himself, sends a servant to do it, is held liable for the incompetence of his servant, or even for the carelessness of a competent servant. It is true that in most of these cases last mentioned, the master who is held liable not only pays the servant, but he expects pay from the person for whom the work is to be done.
In the present case the services were gratuitous to the person injured, but the agent is indirectly compensated by the corporation; i.e. by the opportunities for acquiring skill, experience, reputation, and subsequent practice in the profession.
But a corporation can act in no other way than by agents. It is the corporation acting through them. On no other principle can corporations be held liable at all. Wharton on Negligence, §§ 279, 280. If this is sound we come back to the ground before stated. It is the same case as if the corporation were itself a physician and offered to perform the service gratuitously, in which case it would be held answerable for gross negligence.
If an individual, holding himself out as possessing particular skill in a particular branch of business, is so liable, even if his services are offered gratuitously, can there be any other rule for a corporation? There is no principle of law and no analogy to justify any distinction.
The fact that the corporation is a charitable one can give it no greater exemption from liability than a charitably disposed individual could claim.
It is in no sense a public corporation. It has no governmental powers, no civil authority whatever. It may be, as an effective organization of charity, and as concentrating the efforts of individuals, a great public benefit. So railroads, banks, may be of public use, but still are private corporations.
But it is said that it is a quasi public corporation, because its object is public charity. So may be a college; and so may be a *432 church corporation which opens its doors and seats freely to all people. Still they are in law private corporations and treated as such; a mere aggregation of individuals and of individual effort for the more effectual carrying out of some particular purpose: generally, it is true, with an exemption from private liability, but with perfect liability so far as their general property, i.e. property not held under special trusts, is concerned. This exemption from private liability is indeed one of the principal reasons for resorting to acts of incorporation. But to hold such corporations exempted from corporate liability is a very different thing.
And this remark, that it is a private corporation and in no sense a public one, it may be well to keep in remembrance while examining some of the English cases to which we have been referred.
In the case of Duncan v. Findlater, 6 Cl. Fin. 894, the defendants were trustees under a local act of parliament to build a certain road. By the language of the act the funds raised were to be applied to certain purposes and "to no other purpose whatever," and in reading the opinions, it is evident that the language of the act had considerable weight, although the lords do make remarks of a very general character. Here the object was a public one, and it was in the exercise of one of the ordinary powers of government.
In the case of Feoffees of Heriot's Hospital v. Ross, 12 Cl. Fin. 507, the head note lays down the rule broadly, that charity trust funds are not liable for breach of trust of the trustees. But on looking at the case we find that certain property had been given to the city of Edinburgh for the relief and education of fatherless boys, and the complaint was that the trustees had refused to admit a certain boy. This was the only question.
In this and the preceding case some very strong language was used by Lord Cottenham and others as to the non-liability of such corporations. And this language is strongly criticised by Lord Westbury in Mersey Docks v. Gibbs, 11 H.L. 686, 732. Query, whether in the case of Heriot's Hospital the managers ought not to have been personally liable.
In the case of Mersey Docks v. Gibbs, 11 H.L. 686, L.R. 1 H.L. 93, the docks corporation was created by acts of parliament *433 for a public purpose, and was held liable for the damages claimed. By § 134 of 6 Geo. IV. cap. 187, the masters, i.e. harbor masters and dock masters, were specially authorized to pay out of the rates levied under the act any damages occasioned by the negligence or misconduct of their officers and servants. The provision of itself might sustain the decision.
But in all these cases the discussion takes a wide range, and although profitable for instruction, it is rather difficult to discover what principles, if any, are settled by them. They are well reviewed in Levingston v. Guardians of the Lurgan Union, I.R. 2 C.L. 202.
But it may be further contended that the corporation in this case does not offer to furnish the medical treatment directly, but only to furnish the surgeons and the accommodations for the patients; that this is all it engages to do; and this is the best light in which the case of the hospital can be placed.
But it seems to me that in this case, as in others, it is the corporation itself which treats the patient through its officers. They do not furnish physicians, but a physician, a regular officer or employee of the corporation; they hold him out to the public as their physician, create a confidence in him, and thus in a measure warrant his competency.
In giving the opinion of the judges at the request of the lords, in Mersey Docks v. Gibbs, 11 H.L. 686, 707, Blackburn, J., takes the ground that as these corporations are merely substitutes for private enterprise, there is no reason why the substituted person should not be liable, and this opinion is approved by the lord chancellor in delivering the judgment of the lords. 11 H.L. 728.
If there had been several persons acting separately, each employing a portion of his property in furnishing a physician gratuitously, each would have been liable for negligence in the cases we have stated.
If each one takes the same amount of property and they join together and form a corporation to carry out the same object, why should the property be exempted in one case more than in the other.
The corporation is in fact a mere agency for effecting the same purpose more conveniently and economically. *434
Railroad corporations, like others, can only act through agents. The trustees or directors exercise the powers of the corporation in appointing these agents. Generally such corporations carry passengers for pay. But sometimes by agreement, for certain purposes, and sometimes by favoritism, passengers are carried free. In the first case there may be said to be a consideration or something equivalent to pay. But if the passenger is carried for no consideration whatever the rule is the same.
It might as well be argued in the case of such free passengers, and even in the case of paying passengers, that the corporation merely agrees to furnish proper cars and proper officers to run them, and that if it does this it is not liable.
But these corporations are held liable by the policy of the law, as common carriers, and because it is considered absolutely necessary for public safety. The lives and property of the passengers are intrusted to them and are under their control. And so here; the limbs and lives of patients are intrusted to the corporation, and although it acts gratuitously, it should for public safety be held to the strictest responsibility.
The railroad company is bound to exercise proper care and is held liable for want of it. And there seems to be a stronger reason for the application of the principle in the present case, because, although it may be the habit of railroad officials to give their friends free passages, that is not the business for which the corporation was formed; whereas in the present case gratuitous treatment is one of the most important objects, almost the principal object, for which the defendant corporation was created.
It is enough that confidence is tendered and accepted. That is a sufficient consideration; and the fact that the service is rendered gratuitously is immaterial. "The confidence induced by undertaking any service for another is a sufficient legal consideration to create a duty in the performance of it," said Grier, J., citing Coggs v. Bernard, and 1 Smith Lead. Cas. *95; Philadelphia Reading Railroad v. Derby, 14 How. U.S. 468, 485; Wharton on Negligence, §§ 640, 641. The remarks of the last cited author in § 437 and the authorities there cited apply. If a person undertakes to do an act or discharge a duty by which the conduct of others may properly be governed, he is bound to do it in such a manner that those who act upon the faith of it *435 shall not suffer from his negligence; and this even if there was in the beginning no consideration for the promise.
The only safe ground, therefore, is to hold that the corporation is itself present, acting in and through its officers selected for the particular purpose, and is therefore liable to the same extent he would be himself; and in this case we have already stated the rule which governs the liability.
Is it not better and safer for the court to follow out the analogies of the law, and then if the legislature is of opinion that public policy demands a limitation of this liability, it is in its power to interfere and grant an entire or a partial exemption.
Petition granted.
NOTE. — The case was subsequently settled by the defendant.
