In his dissenting opinion in this case, Cobb, J says: "When this act is construed as a whole, and in the light of its title, it is manifest that the legislative purpose was to declare places where intoxicating liquors are sold in violation of law to be a public nuisance, and vest in the courts the power to deal with them as such; a court of law to have authority to abate them by the proceedings usual in abatement of such nuisances, and a court of equity to abate them by the writ of injunction. What is commonly known as a 'blind tiger,' within the meaning of this law, is a place where intoxicating liquors are sold without authority of law. It is immaterial whether the sale is open or secret, if the person selling had no authority to sell from any one empowered, under the law of this state, to give such authority. In such a case, the place where the liquor is sold is a blind tiger within the meaning of that term as it is generally understood. This mry not be the meaning given that term by the lexicographers, but it is the ordinary popular meaning of the

term.

The only case where this term is judicially defined is that of Schulze v. Jalonick, 18 Tex Civ. App. 299, 44 S. W. Rep. 581. In this case, Chief Justice Fisher says: "A blind tiger' we find to be a place where such intoxicating drinks as are prohibited by the local option law are disposed of or sold in violation of that law." That was an action for libel, where the plaintiff alleged that the defendant had charged him with running a blind tiger.

THE NON-LIABILITY OF RAILROAD COMPANIES MAINTAINING HOSPITALS, FOR THE MALPRACTICE OF SURGEONS AND THE NEGLIGENCE OF NURSES THEREIN.

From the following review of a curious class of cases illustrating what I shall call the "charity defense," it appears that the courts are extending all the exemptions and immunities enjoyed by charitable institutions, to enterprises planned for the benefit of corporations organized and conducted for private profit.1 In nearly all of them railroads figure as de

1 Other enterprises thus judicially favored appear to have been devised with a view to benefiting the insurance companies by saving property contiguous to, or in, burning buildings, thereby diminishing the risk of loss. Fire Insurance Patrol v. Boyd. 120 Pa. 624, 1 L. R. A. 417, 6 Am. St. Rep. 745, 15 Atl. Rep. 553; Id. 113 Pa. 269, 6 At). Rep. 536, 5 Cent. Rep. 236. The theory of this decision recognizes this enterprise as a public agent auxilliary to the municipal corporation, the carrying out of the objects of which, assist in lessening the burdens of government. But a similar concern that sought immunity from liability for personal injuries sustained by one who had been run over by its patrol wagon was held by the Massachusetts Supreme Judicial Court mot entitled thereto, the

fendants in consequence of the malpractice or negligence of physicians, surgeons, and nurses in that adjunct to the "employees' relief association," known as the "hospital department." There is a regrettable lack of legal logic in the arguments with which the conclusion is judicially defended that such enterprises cannot be held to any stricter liability than such as exists in the case of public charitable institutions. Certain decisions have been made and seem to have established certain rules, but no logical statement of the reasoning can be made nothing beyond a digest of the decisions wherein the hospital department is judicially fostered. Let it be understood that we are not going to discuss here, an exemption from liabilities of a public charitable institution created as an instrumentality of government, nor of an institution conducted by a private association of persons inclined thereto from motives of piety or religious zeal, nor yet of an institution founded for the administration of a private benevolence.

The ratio decidendi of the judicial extension of immunity in each of those cases is apparent. To say that public charitable institutions possess no funds with which to pay damages is only asserting in another form of words that the courts will not permit taxes to be levied in order to create funds from which to pay damages unless the legislature expressly admits the principle of liability. This is the meaning intended to be conveyed by the saying that it is better that the private citizen suffer injury than that the public be inconvenienced. The logic of the proposition in the case of state, county and city charitable institutions is clear. The same proposition can be demonstrated in the case of public charitable institutions, owned and managed by private corporations and associations chartered for that purpose. When the courts say that these, too, have no funds with which to pay judgments for damages in negligence cases, it is not unreasonable to conclude that the judges are convinced that to cut down the resources of such institutions would impair or even cripple their usefulness by diminishing the number of persons to whom their bounty

principal object being to diminish the outlays for fire insurance losses to the underwriters. Newcome v. Boston Protective Department (Mass.), 6 L. R. A. 779, 151 Mass. 215.

could be extended, and that this would be followed in turn by an increased demand on the public for charitable relief by persons who could no longer be accommodated in institutions of that nature, and consequently additional taxes would have to be levied in order to enable institutions managed by the state, city, or county, to adequately meet the situation thus created.?

The true basis of the modern doctrine of immunity, therefore, is not to be found in any especial esteem in which the law holds piety and philanthropy as such; still less in a survival of the medieval disposition to regard the property and endowment of charitable institutions as solemnly consecrated to God and religion; still less in the logic by which some

The courts have often admitted the utility of private philanthropy from this point of view., In re Vassar's Estate. It was said that the general policy of the state government has been to foster and encourage charitable institutions like that under consideration (home for aged men), and where it operates to relieve the public from the support of the poor and indigent, thus relieving the public of the burden that it would otherwise have to assume, to regard it as an almshouse, and, as such, to exempt it from taxation. 27 N. E. Rep. (N. Y.) 394.

3 Charitable gifts to pious uses had their origin in the Christian dispensation. They were regulated by the code, and in course of time, the corporation administering such gifts acquired many privileges. Under Roman law, donations for pious uses which had not a regularly ascertained destination, that is, to institutions approved or authorized by the state, were liable to be adjudged invalid. Valentinian III. and Marcian promoted the growth of charitable institutions by edicts declaring that legacies in favor of the poor should be maintained even though no legatee was designated. Justinian completed the work by sweeping all such general gifts into the coffers of the Church to be administered by the bishops. The ecclesiastical control over all forms of charities, ranging from the care of the poor and the maintenance of hospitals, orphanages and foundling asylums, to schools, colleges and universities, during many centuries, is a matter of common historical knowledge. The civil law was borrowed from by the English judges in the development of the doctrine of charitable gifts, and, as a consequence, while the religious orders flourished, gifts to religious or pious uses of any nature that might be ultimately ascribed to motives of Christian benevolence, were extended immunity from every form of burden or liability incident to the ownership of lay property in the hands of the subject. For example, Freeman, in his work on Executions, says that at common law neither the church nor the glebe of the parsonage or vicarage could be extended under an elegit. They were regarded as solemnly consecrated to God and religion. In the case of Arbuckle v. Cawtor, 3 Bos. & Pul., Lord Alvaney said: "We have complete authority for saying that at common law no process ever issued to the sheriff to levy on ecclesiastical property the debt due in the action." The magnitude of the property possessed

jurisdictions have sought to discover distinctions between corporations organized for charitable purposes and those organized for private profit, so far as their mode or manner of representation by officers, agents, servants and employees, is concerned. The later English cases effectually dispose of each branch of that theory of immunity. The real basis of immunity is, therefore, public policy; a view of public policy dependent upon considerations of utility, promotive on the whole, of distributive justice. Are the judicial exemptions of railroad corporations from liability for the malpractice of their physicians and surgeons, and the negligence of their nurses in their socalled hospital departments reducible to the same basis, and therefore entitled to the same respectful consideration as those in the classes of cases already noticed? It seems to me that the language of the court in Glavin v. Hospital, could more appropriately be used in refutation of that proposition than in support of the conclusions of the court in favor of the liability of the charitable hospital: "The public is doubtless interested in the maintenance of a great public charity, but it, also, has an interest in obliging every person and every corporation which undertakes the performance of a duty, to perform it carefully, and it, therefore, has an interest against exempting any such person and any such corporation from liability for his or its negligence."

4

Nevertheless, railroads, operating hospitals even in connection with and as a part of their claims and legal departments, have, in malpractice and negligence cases, been put on exactly the same footing with the class of institutions we have just been considering, as will be seen from an investigation of the decisions herein collected. It is true that where

by the church during the term to which Lord Alvaney referred may be gathered by recalling the fact that the plundered monasteries alone comprised one-fifth part of the patrimony of England in the reign of Henry VIII., while yet earlier, at the beginning of the fourteenth century, the ecclesiastical revenues were twelve times greater than the civil, and half of the soil was in the hands of the clergy. When it is stated that down to the era of the Reformation, the Church, in England, dispensed, as a body corporate, the charity of the kingdom, through the instrumentality of religious orders of men and women, it should seem that the probable source of the modern doctrine of the exemption of charitable and eleemosynary institutions from taxation and liability for personal torts has been sufficiently indicated.

4 12 R. I. 411, 34 Am. Rep. 675.

a coal company employed and paid physicians and undertook to treat its employees when sick or injured, deducting fifty cents per month from each employee's wages, the employees being denied any interest in the funds thus raised, or in the distribution thereof, and when they ceased their employment, the right to be treated ceased, the surplus of the fund being retained by the company, and deposited in bank, along with, and undistinguished from, the rest of the company money, and otherwise undesignated as trust funds; the claim of the company that the treatment paid for by the company out of such funds constituted a charity, and the company was therefore exonerated from the malpractice of its physicians, was met by a Texas court by the observation "that so far from showing the creation of a charity, the record suggests rather a monopoly with accrued profits, in taking care of sick employees, and the law, therefore, implies an undertaking to give proper treatment.”5 It is also true that the "charity defense" was silently ignored by the Texas Supreme Court when interposed in an action for damages against a railroad company which, having undertaken to care for and treat one of its employees suffering from smallpox contracted in its hospital, negligently permitted him to escape while in the delirious stage of the disease, thereby communicating the disease to plaintiffs and their child.

But not elsewhere than in these two cases have I found any judicial dissent from the proposition that similar arrangements sufficiently come within the accepted definition of a charity, and that a railroad hospital so conducted is a charitable institution. In Richardson v. Carbon Hill Coal Co., the court went so far as to point out to defendant corporation what facts would have to be proved in order to satisfy the judicial mind of the charitable nature of the concern; the following language being used: "It does not appear whether this hospital was maintained as a charitable institution, or whether it was for the purpose of deriving profit therefrom, and a determination of this question bears materially on the plaintiff's rights in the

5 Texas & Pacific Coal Co. v. Connaughton, 50 S. W. Rep. (Tex.) 173.

6 M., K. & T. Ry. Co. of Tex. v. Wood, 56 L. R. A. 592.

76 Wash. 52, 20 L. R. A. 338, 32 Pac. Rep. 1012

premises. If said hospital was maintained as a charitable institution and was not designed as a source of profit to the company, but was simply provided as a place in which its laborers might stay while sick or disabled, for the purpose of being cared for, and the company simply further undertook to provide a physician also, for treating the men, without expense to them, the whole being in the nature of a gratuity on the part of the company, it would only be liable for a failure to exercise due care in selecting a competent physician. Under such an arrangement the company could not be held to have agreed to treat the injured employee through the agency of a physician, but only agreed to provide him the services of a physician, and he would not be the servant of the company. If on the other hand, the company was conducting a hospital with its own physician for the purpose of deriving profit therefrom, or if it contracted with the appellant to furnish him with the services of a competent physician, and he to treat him properly in case of an injury, it would be liable for the negligence or want of skill of its physician in attendance on him.” When the case again came before the court it was contended that the foregoing requirements had been fully met and that under the facts the railroad company was entitled to the immunity claimed. The court said, "this hospital was maintained and the physician provided for the sole purpose of relieving sick and injured employees without expense to them and without any intention on the part of the company of making any profit out of the undertaking. It was therefore a charitable institution and was supported by the contributions of the employees and carried on in their interests and if the company did employ the physician as claimed by the respondent to look after and treat the sick and injured, it is not liable for his negligence, but is responsible only for want of ordinary care in selecting him. It is not shown that the company was derelict in that particular. In fact, it is not even alleged in the complaint that it did not exercise ordinary and reasonable care select an ordinarily skillful physician. The action was not brought on that theory and the proof fails to support a finding of negligence on the part of the company and the judgment must therefore be reversed."8

to

8 Richardson v. Carbon. Hill Co., 39 Pac. Rep. 95, 10 Wash. 648.

Even though it should be admitted that it is within the scope of the corporate powers of a railroad company to obligate itself to the re ndition of surgical or medical aid to its injured by assuming it as a duty or otherwise, or to become liable under any circumstances, for any negligence of any such surgeon, acting in the line of his profession, the courts say that it is well settled that it will have performed its entire duty in that respect when it employs a person of ordinary competence and skill in that profession, and that having done so it cannot be held liable for the carelessness or negligence of such surgeon in the performance of his duties. A railroad company by retaining a portion of the monthly wages of each employee for medical services obligates itself to furnish such services as are practicable and reasonable, to each of them when sick or injured. But it incurs no liability for the mistakes of a surgeon to whose care one of them may while injured be temporarily committed. 10 And this is true irrespective of whether the company personally takes charge of such funds, or organizes an employee's association and secures a charter therefor as a benevolent or charitable corporation, and pays over the assessments as collected to the chartered association. 1 1 And where the railroad company maintained a hospital department under the control of its manager, for the better care of its sick and wounded employees, and employed a chief surgeon and others, and the money or funds from which such surgeons were compensated and the expenses of the department kept up, were derived from a hospital fund, raised by assessments of 50 cents per month per employee, the company contributing the rest of the expense, and did not conduct this department as a business. and derived no profit and had not designed to derive any profit therefrom, it was held that under such circumstances the railroad company cannot be held liable for the negligence of the physician furnished, except on the ground of want of proper care in selecting or retaining him. 12

9 South Florida R. R. Co. v. Price, 13 So. Rep. 638; Quinn v. Kansas City & R. R. Co., 30 S. W. Rep. 1036, 94 Tenn. 713.

10 Southern Pacific Co v. Malden, 46 S. W. Rep. 650. 11 Atchison, T. & S. F. R. Co. v. Zailer's Admx., 38 Pac. Rep. 283, 54 Kan. 340.

12 Galveston, H. & L. A. Ry. v. Handway, 57 S. W. Rep. 695.

In Eighme v. Union Pacific R. R. Co.,13 it was held that a railroad company voluntarily furnishing a hospital for the treatment of its employees in a case of injury, is not liable provided it furnished and employed competent surgeons, for the malpractice of such surgeon. The wrong and injury complained of was the putting of the plaintiff in the care of an inexperienced and unskillful student, who so carelessly, negligently and improperly treated his injured hand that the same became stiff and almost wholly useless. The facts brought out by the evidence showed that the alleged student was a competent physician, and that the physician in charge of the defendant's medical department was in all respects competent and skillful, although there was evidence from which the jury might have found that plaintiff had suffered from the physician's malpractice. "The medical department included a hospital building, of which a physician selected by the company had charge. The plaintiff went there to have his hand treated and was placed in a room and given a bed. It does not appear that the defendant assumed any obligation by contract to furnish surgical and hospital accommodations for its injured employees, and so far as is shown, its doing so was wholly voluntary.. Its employees were under no obligation to avail themselves of the facilities for treatment and paid nothing for them when accepted. That the defendant maintained its medical department for its own advantage and not for charitable purposes only, may be presumed; but that does not alter what appears to be the fact that it was not maintained to discharge any statutory or contractual obligation." The rule exempting one contracting to furnish a competent physician from liability for the malpractice of such physician, if the selection be made of a competent person, where, by the terms of the undertaking, the services of such physician were to cost the party treated nothing, taken in connection with the doctrine governing charitable hospitals as announced in McDonald v. Hospital,14 was applied in the present case, and the charge of the court below in regard to the liability of the defendant for its acts and omissions, based on the theory that responsi

13 93 Iowa, 538, 61 N. W. Rep. 1056, 40 Cent. L. J. 208. 14 120 Mass. 432.

bility existed for the surgeons' negligence, was held erroneous. And where the distinct charge of negligence made against the defendant and complained of by the plaintiff, was the omission of defendant's servants and employees, in charge and control of his hospital, to properly care for plaintiff's intestate, while an inmate of such hospital, whereby, while temporarily insane, he was allowed to wander away from said hospital, and was drowned in a nearby river, it was held, that the court below rightfully directed a verdict in favor of defendant at the close of plaintiff's evidence, the hospital in question, although owned and controlled by defendant, being entitled to the same immunities and exemptions as charitable hospitals.1

15

The

The ingenuity of the courts in discovering identities between the railroad hospital departments, and such institutions as are maintained by taxation, or founded by private philanthropy or piety, and as a consequence, equal right on the part of the railroad corporation to immunity from the consequences of its employee's negligence, in such hospitals, was never more strikingly illustrated than in the case of Union Pacific Railroad Co. v. Artist, 16 the pioneer decision in this new and strange application of that doctrine. The charitable trust fund from which defendant's hospital was maintained was raised by compulsory assessments on the employees. railroad contributed the amount necessary to pay the running expenses of the department after applying the sum raised by these assessments as far as the same would go, but when it was urged that such gift on the part of the company was prompted by an ulterior and selfish purpose to secure protection from claims for injuries resulting to its servants, the court said, that the motives of the donor were not to be looked into in determining whether or not the enterprise should be given all the immunities and exemptions of charitable institutions. It is true that with this fund the company maintained several hospitals and employed physicians and attendants to care for its injured employees, and that admission was not restricted in cases of injury to injuries received in its service, but to all employees except those injured in fights when drunk or those suffering from certain specific

15 Pierce v. U. P. Ry., 66 Fed. Rep. 44.

16 60 Fed. Rep. 365, 23 L. R. A. 581.

annum.

diseases. But it is apparent from the statement of the facts that this hospital was not open to the general public. The private patients of the hospital physician were also admitted, but were required to pay for their board and treatment, the income received from this source at the hospital in question being several hundred dollars per The plaintiff, an employee of the road, sustained personal injuries while in the line of his duty, and was taken to and treated at one of these railroad hospitals until discharged as cured. He executed, for a certain consideration, a release of damages for those injuries, but, subsequently through the negligence of the surgeon and attendants at the hospital, was subjected to protracted suffering and partial disability in consequence of a failure to withdraw a section of rubber drainage tube from one of the deep, punctured and lacerated wounds received in his right thigh, in the accident. For such malpractice and negligence he sued, and recovered a judgment for damages in his action, in the Circuit Court, United States, District of Wyoming, which was reversed by the Circuit Court of Appeals, Eighth Circuit, on the ground that the company is not liable for the malpractice of physicians or carelessness of the nurses and attendants to one undergoing treatment at a railroad hospital.

The court said, in part, that "one reason why corporations and individuals conducting hospitals, supported by charitable endowments and contributions, and operated to heal the sick and injured, but not for profit, are not liable for the negligence of their employees is, that the moneys in their hands constitute a trust fund devoted to a charitable purpose, and the courts refuse to permit it to be diverted to the different purpose of paying damages for the malpractice of physicians and the negligence of attendants. Moreover, the patient is not required to accept the proffered accommodations and attendance. They are freely offered him. He may refuse to accept them and seek other physicians and other accommodations. It would be a hard rule, indeed, a rule calculated to repress the charitable instincts of men that would compel those who have freely furnished such accommodations and services, to pay for the negligence and mistakes of physicians or attendants that