It is shown that the administrators of the charity were them-

selves negligent in the appointment of incompetent servants

or in the discharge of some other corporate or specially im-

posed duty." The theory of this class of cases seems to be

the one most generally acceptable, namely, that while a

charitable corporation may be liable for negligence in the

^ Glavin v. Rhode Island Hospital, 12 R. I. 411; Foreman v. Mayor,

L. R. 6 Q. B. 214. See also Donaldson v. Commissioners, 30 NewBruns.

279.

^ Powers V. IVl ass. Hqinoeo|mthic Hospital, 101 Fed. Rep. 896. And

see Gooch v. Association, 109 Mass/SoS;

8 Ibid.

* Ward V. St. Vincent's Hospital, 39 N. Y. App. Div. 624 ; Richard-

son V. Carbon Hill Coal Co., 6 Wash. 52, S. C. 10 Wash. 648. See Glavin

V. Rhode Island Hospital, supra.

* McDonald v. Massachusetts General Hospital, 120 Mass. 432 ; Union

Pacific Ry. v. Artist, 60 Fed. Rep. 365; Joel v. Woman's Hospital, 89

Hun (N. y.), 73; Van Tassell v. Manhattan Eye & Ear Hospital, 39 N. Y.

St. Rep. 781, 15 N. Y. Supp. 620; Hearns v. AVaterbury Hospital, 66 Conn.

98; Eighmy v. Union Pac. Ry., 93 Iowa, 538; Richardson v. Carbon

Hill Coal Co., 10 Wash. 648.

320 LIABILITY OF PUBLIC BODIES

performance of a corporate dut}-, the doctrine of respondeat

superior is not applicable to it so as to render it liable for the

torts of its servants.^ This is merely an extension to chari-

ties of a doctrine elsewhere applied, that officers or trustees

for public purposes are exempt from liability for torts of

servants 2 but not for their own torts j^ quaiilied by the

further consideration that some duties are imposed upon

public bodies in such a way tliat they cannot rid themselves

of liability by putting the performance of the duty into hands

of servants.* Under this view a charitable hospital, for

example, has imposed upon it the duty to use due care to

provide safe and suitable hospital appliances and skilled

and competent physicians, surgeons, and nurses, and for a

failure to fulfil this duty it would be liable to one injured

thereby; but having fulfilled this duty, it is not liable for the

negligence of such attendants or servants.^ It is further to

be noted that physicians and surgeons arc not the servants

of the hospital or other body that furnishes them and that in

any event liability can attach only for negligently furnishing

incompetent practitioners.^

Two classes of cor{)orations or agencies must be distin-

guished. First, where a corporation or board of managers

exercises governmental ])Owers as an agent of the state or

municipality, it falls under the head of })ublic agencies

already considered.'^ Second, private corporations organized

for the protection of some interest of their supporters, as a

" protective association " supported by insurance companies,

1 See the very full and able discussion by Hamersley, J., iu Ilearns v.

Waterbury Hospital, O'j Conn. 98.

'- Ilolliday r. St. Leonard's, 11 C. B. N. s. 192.

8 Mersey Docks v. Gibbs, L. R. 1 II. L. 93; Coe v. Wise, 5 B. & S.

440.

* Mersey Docks v. Gibbs, supra.

5 Union Pacific Ry. v. Artist, 60 Fed. Rep. supra ; Ilearns v. Water-

bury Hospital, supra.

6 Ante, В§ 2:52.

' City of Richmond i'. Long's Adm'r, 17 Gratt. (Va.) 375 ; Benton v.

Trustees, 140 Mass. 13 ; Williamson v. Louisville Industrial School, 95

Ky. 251.

FOE TORTS OF SERVANTS. 321

are not public charities merely because they incidentally

render aid gratuitously to outsiders.^

В§ 262. Liability of private person served by public ofiBcer.

Any person may avail himself of the services of a public

officer. If he directs the doing of a lawful act he is not

liable if the officer does an unlawful one or carries out the

mandate by unlawful means.^ In order to render the em-

ployer liable it is necessary to show that he either directed

an unlawful act or subsequently ratified it ; ^ in such cases

the employer becomes a participant in the unlawful act.

Even where the statute requires the keepers of places of

amusement who apply for a special police officer to pay his

salary and " to be liable to parties aggrieved by any official

misconduct of such police officer, to the same extent as for

the torts of agents and servants in their employment," it is

held that such an officer is not a servant and the person who

applies for his appointment and pays his salary is not liable

for his official misconduct in which such person does not par-

ticipate.* But such officer, if in fact also a servant in and

about the place, may act either as officer or as servant : if he

acts as officer the employer is not liable on the doctrine of

respondeat superior ^^ but if he acts as servant the employer

may be liable on that doctrine.^

^ Newcomb ik Boston Protective Department, 151 Mass. 215; {Cf. Fire

Ins. Patrol v. Boyd, supra); Chapin v. Holyoke, &c. Assn., 165 Mass. 280.

See also Wabash R. v. Kelley, 153 Ind. 119.

2 Sutherland v. Ingalls, (33 Mich. 620.

8 Hyde v. Cooper, 26 Vt. 552. See Mechem on Public Officers, §§ 904-

907.

* Healey v. Lothrop, 171 Mass. 263.

6 Ibid. '

6 Dickson v. Waldron, 135 Ind. 507.

21

322 LIABILITY OF MASTER

CnAPTER XXIII.

LTAinLTTY OF MASTER FOR PENALTIES AND CRIMES.

В§ 263. Introductory.

An agent or servant in the course of his master's business

may do an act which is subject to a penalty or to punishment

as a crime. Such an act may give rise to an action by a pri-

vate person to recover a penalty, or to a criminal prosecution

by the state. The problem in either case is whether the act of

a servant in the conduct of the master's business and in the

course of the employment, but not authorized or participated

in by the master, will subject the latter to the penalty or to

a conviction for crime.

В§ 264. Liability to private penalties.

Penalties recoverable by private persons are usually the

result of the commission of a statutory tort, that is a tort

created and defined by statute and not by the common law.

There seems to be no distinction between the liability of a

constituent for the act of his representative amounting to a

common-law tort and an act amounting to a statutory tort.