amount due the attaching creditor. This would rule, but can not consent to hold it applicable to certainly be against the weight of authorities in our court. The language of Chief Justice Swift, this country, and in most cases be productive of in his opinion in Church v. Knox, 2 Conn., is very the greatest injustice.

appropriate to it. He observes, on page 518, “ It In the cases of Sheedy v. Second National is further said, if the plaintiffs have recovered Bank, 62 Mo. 18, and Myers v. Smith, 29 Ohio, 120, more than the proportion of the defendant in this it was held that partnership demands can not be debt, and it should be wanted for the payment of garnished for the separate debt of one of the part- partnership debts, the other partners may call ners. And to the same effect are the decisions in them to account, and recover back such money. Vermont, New Hampshire, New York, Louisiana At this rate a judgment may be rendered in favor and Mississippi. See Drake on Attachment, (4th of a man for a sum certain, with a liability to reedition,) sec. 570, and notes. The exception to fund the whole, or a part of it, on some continthis rule is, where equity powers have been con- gency. It is sufficient to state the proposition to ferred by statute upon the common law courts, show the absurdity of it. What right can a court and when by virtue of such powers they can com- have to say, that a certain part of a debt due to a pel a settlement of the partnership for the pur- partnership may be taken to pay the private debt pose of ascertaining whether one of partners has of a partner in a suit where the partners are not such an interest in a particular debt due the firm, parties; and then, if wanted to pay the debts of as to justify its appropriation to the payment of the partnership, to oblige them to resort to the his individual indebtedness. As no such powers

creditor?" have been conferred upon the common law But the case of Wallace v. Patterson, 2 Harris & courts of this State, the exception can not be ap- McHenry, 463, is relied upon to sustain this atplied to an attachment here.

tachment. It is to be said of that case, which was The only cases in this country in which it is decided as far back as 1792, that no opinion of the claimed a contrary doctrine is held, and to which court was filed in it, and it is impossible from the we have been referred, are the cases of McCarty report of the case to ascertain the true ground v, Emlen, 2 Dallas, 277; Knox v. Scheler, 2 Hill, upon which the judgment was given. The case is 595, and Wallace v. Patterson, 2 H. & McH. 463. altogether too unsatisfactory to be adopted as a The case of McCarty v. Emlen is a very old one, binding authority. In the case of Berry, Garn. v. having been decided in 1797. If it has not been Harris, Adm’r. 22 Md. 30, the point was made, expressly overruled, it certainly has been very that the separate creditor of one partner can much shaken by the case of Knerr v. Hoffman, attach a debt due the partnership, and the case of 65 Pa. 126, in which the opinion of the court was Wallace v. Patterson, was cited in support of the delivered by Judge Sharswood. So much so, proposition. Although this case was decided upon that the doctrine it announces can hardly be the ground, that the defendant was a surviving considered as the present recognized doctrine of partner, and that by virtue of his survivorship the the courts of Pennsylvania. And in this view we legal interest in the debt attached was absolutely are strengthened by what is said by Judge Agnew transferred to him and therefore liable to be atin the case of Alter v. Brook and Barrington, 9 tached for his separate debt, the general proposiPhila. 258. But apart from this, the doctrine tion contended for was noticed. And the court announced in that case does not recommend itself then intimated in the strongest manner, that the to our judgment, and we are not disposed to adopt case of Wallace v. Patterson would not be considit. The case of Knox v. Schepler, 2 Hill, ered a binding authority for the point to which it like the case in 22 Md. 30, is one where the de- was cited. On page 40, Judge Bowie, who delivfendant was the sole surviving partner of the ered the opinion of the court, uses this language: firm of Gable, Cowell & Schepler. It there- “If this was a case of continuing partnership, we fore rested

upon a different principle from should have much difficulty in distinguishing it on the case before us, in which the partnership is a principle from the case of Fisk sv. Herrick, 6 Mass. continuing one at the time of the attachment. It 281; Lyndon v. Gorham, 1 Gall. 367, and the cases is, however, said in the opinion of the court that in Alabama and Tennessee; but the case of a the interest of one partner may be taken in execu- surviving partner, invested with the entire legal tion or may be the subject of attachment at the property, and control over the chattel, so broadly suit of a separate creditor of that partner.” But marks the line between them, that we are not at the rule laid down in regard to the disposition of liberty to disregard the legal claims of the atthe fund after judgment of condemnation, shows taching creditor. The case of Wallace v. Patterthat under the law as recognized in South Caro- son, 2 H. & McH. 463, was the case of a domestic lina, the case is brought at least within the equity creditor, against one of several non-resident partof the exception to which we have above alluded. ners, whose firin as well as the debtor partner had The judgment of the court was, that the money become bankrupt. The distinction between attachshould be paid over conditionally to the attaching ments against tangible chattels and choses in accreditor that is, it was to be held by him as the tion belonging to the firm, and attachinents issued defendant had it, subject to the equities of the during the existence of the firm, and after its disother partners and of the creditors of the firm, solution, was not adverted to, and no opinion

was and he was also to give bond - to answer any

given; we do not regard it, therefore, as decisive claim which might thereafter be made on such of the point to which it was cited.” fund." We are not disposed to quarrel with this So satisfied are we upon the ground of reason

and expendiency, and the great weight of authority' that the partnership credits of a continuing partDership should not be subjected to the process of attachment at the suit of a separate creditor of one of the partners, that we can not adopt the case of Wallace v. Patterson to the extent which is claimed for it.

In our opinion then, in a case like the present where the partnership is a continuing one, and where there has been no adjustment of partnership affairs, a debt due the partnership can not be taken by garnishment to pay the individual debt of one of the members of the firm.

This judgment will therefore be reversed and judgment entered for the appellant. Judgment reversed, and judgment for appellant.




Supreme Court of Rhode Island, July 26, 1879.

1. NEGLIGENCE -INJURY THROUGH NEGLIGENCE OF SURGEOX LIABILITY OF TRUSTEES OF HOSPI. TAL-A, who had been for some three weeks a patient in the Rhode Island Hospital, paying $8 per week, brought an action against the hospital for damages, alleging severe injuries caused by the unskilfulness and negligence of the surgical interne, a house officer of the hospital. At the trial, a verdict for the defendant was directed by the presiding judge, on the ground that the hospital, being a public charity, was exempt for reasons of public policy from the liability charged. Held, that in the absence of legislative provisions granting such exemption, the exemption could not be allowed, public policy requiring that duty asFumed should be faithfully performed.

2. AGENTS-LIABILITY FOR ACTS OF-SURGEONS. - Although the attending physicians and surgeons could not be considered as servants of the hospital, yet the hospital was responsible for the exercise of reasonable care in selecting them, and liable for their negligence.

3. THE GENERAL TRUST FUNDS of a charitable corporation are liable to satisfy a judgment in tort recovered against it for the negligence of its officers or servants.

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 hands and fingers by reason thereof become 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, etc. 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 by 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 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, 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 regnlations in force in 1873. It appeared that the plaintiff was taken from the hospital by his friends against the advice of the surgeon, and when he left, October 22, 1873, a bill for board and attendance at $8.00 per week, amounting to $21.75, was


Petition for a new trial.

Charles E. Gorman, for plaintiff; Charles Bradley & Charles Hunt, for defendant.

DURFEE, C. J., delivered the opinion of the court:

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

presented to him in behalf of the defendant cor- the reason that the corporation could not be held poration, which was subsequently paid.

to have agreed to do more than furnish hospital For the defendant corporation testimony was in

accommodations, which the plaintiff had had, and troduced to explain the management of the hos- for the further reason that any judgment recovpital generally, as well as the circumstances of the ered against the corporation could only be satisfied care of the plaintiff, and to show that there was no out of funds which, being dedicated to the charity, want of reasonable care, skill and diligence on the could not be lawfully used to pay it. part of the defendant corporation. Testimony The Supreme Judicial Court of Massachusetts, was also introduced to show that the hospital was in the case above cited, referred to Holliday r. St. administered as a charity; that its income was de- Leonard, 11 C. B. N. S. 192, decided by the Court rived mainly from its endowments and from vol- of Common Pleas in 1861, as authority for the untary contributions; that the physicians and sur- point that the corporation was not liable to be geons attendant on the hospital, and the medical sued for the tort of the house pupil without proof and surgical internes, gave their services without

of negligence in selecting him. The doctrine compensation, except that the internes, who were announced in Holliday v. St. Leonard is that a correquired to be constantly in attendance, had their porate or quasi-corporate board or body, having a board and lodging in the hospital, and that the bill public trust or duty to discharge gratuitously, is which was rendered to the plaintiff was designed not liable for the torts of its servants or employees only to cover board, washing. warmth, and the if it is personally without fault. The plaintiff calls services of nurses and ward tenders.

our attention to cases in which Holliday v, St. After the introduction of the testimony and the Leonard has been qualitied or impugned. Mersey argument of the case to the jury, the court in- Docks 1. Gibbs, 11 H. L. 686, L. R, 1 H. L. 93; structed the jury that no testimony had been sub- Forman v. Mayor of Canterbury, L. R:6 Q. B 214; mitted which entitled the plaintiff to a verdict for Coe v. Wise, L. R. 1 Q, B. 711, 5 B & S. 410, 458, damages, and directed the jury to return a verdict These cases hold that a board or body having for the defendant corporation. The ground of the work to do for the public gratuitously are liable instruction was, that the defendant corporation for the torts of their servants or employees, the being the dispenser of a public charity, and being same as a private business corporation, provided dependent for its support, in a great measure, on they have funds or are in receipt of an income out voluntary grants and contributions, was, for reas

of which a judgment against them can be satisfied. ons of public policy, exempt from liability for Winch v. Conservators of the Thames, L. R. any negligence or unskilfulness on the part of its 7 C. P. 458, 9 Ib. 328. The authority of McDonald trustees, agents, servants, physicians, or surgeons, v. Massachusetts General Hospital in so far as it or of its medical or surgical internes; and that if

rests upon Holliday v. St. Leonard, is seriously any patient in the hospital suffered injury in con

impaired by these cases: and the question arises sequence of any such negligence or unskilfulness,

whether it might not have been better decided on his remedy, if any he had, was to prosecute the

the other grounds suggested in the opinion of the person or persons who were directly chargeable

court. with the negligence or unskilfulness, and not bring his action against the defendant corporation.

The other grounds suggested were two. The first The plaintiff contends that this instruction was

was that the corporation could not be presumed erroneous, and that he was entitled to recover,

to have agreed to do more than furnish hospital first, because the defendant corporation delivered

accommodations, and these the plaintiff had had. him over to an incompetent and unskilful interne,

It is quite conceivable that a corporation might in selecting whom for his place the corporation did

not agree to do more than furnish hospital accomnot exercise proper care; second, because the in

modations, leaving the patient to find his own terne, acting within the scope of his appointment,

physician or surgeon. In such a case the corporaunskilfully and negligently cared for him; third,

tion would plainly not be liable for the torts of the because the interne caused his hemorrhage by his physicians or surgeons; for in such a case they unskilfulness and negligence, and fourth, because would not be its servants and it would not have the plaintiff being in a critical condition, it was assumed any responsibility in their selection. But the duty of the interne, under one of the rules of

that is not this case. Here the physicians or surthe hospital, to send immediately for some one of geons are selected by the corporation or the trusthe attendant surgeons, and the duty of the cor- tees. But does it follow from this that they are poration, under its charter, having established the the servants of the corporation? We think not. rule, to put it in execution.

If A out of charity employs a physician to attend The court, in giving its charge to the jury, was B, his sick neighbor, the physician does not beguided by McDonald v. Massachusetts General come A's servant, and A, if he has been duly careHospital, 120 Mass. 432. In that case a hospital ful in selecting him, will not be answerable to B patient sued the corporation for unskilful surgical for his malpractice. The reason is, that A does treatment by a house pupil, a functionary simi

not undertake to treat B through the agency of lar to a surgical interne. There was no evidence the physician, but only to procure for B. the serof any want of care in selecting the house pupil, vices of a physician. The relation of master and and the court held that without such evidence the servant is not established between A and the action could not be maintained, and at the same physician, and so there is no such relation betime strongly intimated an opinion that it could tween the corporation and the physicians and surnot be maintained even with such evidence, for geons who give their services at the hospital. It

is true that 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 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 the 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 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 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 proper care in selecting the interne, who was incompetent for his position, and thereby he suffering 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 enjoys 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 has no funds except such 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 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 iş so supreme that the latter must be sacrificed to it. Whether it shall be or not is not a question for a court but for the legislature.

The second ground is one of the grounds suggested in McDonald 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 Feoffees of 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 wrongdoer, 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, has no value as a precedent for any case where there are funds




which can be applied to the payment of damages. relief against the individal corporators who have

We have previously, in this opinion, cited the wrongfully used the name of the corporation." cases which limit the authority of Holliday v. In all the English cases decided since the decisSt Leonard. It max help us to cousider the lead- ion of Mersey Docks v. Gibbs, which we have seen, ing case more in detail. The leading case is the cases of Duncan v. Findlater and Holliday v. Mersey Docks v. Gibbs, 11 H. L. 686, deeided in St. Leonard, as authority for the broader doctrines the llouse of Lords in 1865. The action was declared in them, are uniformely regarded as against a quasi-corporate board charged with the overruled. duty of keeping certain docks in order, and author- In view of these later decisions, the question rized in consideration thereof to collect tolls and here is, whether a charitable corporation, like the dock rates. The board had no interest in Rhode Island Hospital, which holds its property the rates and tolls, being bound to

for the charity, is more highly privileged than a pend them on the docks or in the payment of a corporation created for public purposes, which debt incurred in building them. A vessel belong- holds its property for such purposes; whether, in ing to plaintiff was injured in entering the docks, fact, because it holds its property for the charity, in consequence of a neglect to keep them fit for it is relieved from all responsibility for the torts or navigation. The House of Lords decided that the negligences of its officers, trustees, agents, or seraction for the injury would lie against the board, vants. We have come to the conclusion, after the plaintiff being entitled to indemnity out of the much consideration, that it is not. We underpublic fund. The case was decided with great stand the doctrine of the cases we have just been deliberation, the judges being summoned in. Mr. considering to be this: that where there is duty, Justice Blackburn, after advisement, delivered the there is, prima facie at least, liability for its negunanimous opinion of all the judges who heard the

lect; and that when a corporation or quasi corpocase. The opinion was that such corporations,

ration is created for certain purposes which can though acting without reward, are in their very

not be executed without the exercise of care and natures substitutions on a large scale for individual / skill it becomes the duty of the corporation or quasi enterprise, and that in the absence of anything in corporation to exercise such care and skill; the statutes which create them showing a contrary

and that the fact that it acts gratuitously, and intent, it must be held that their liability was in- has no property of its own in which it is beneficitended to be, to the extent of their corporate funds, ally interested, will not exempt it from liability the same as that of individual owners of similar for any neglect of the duty, if it has funds, or the works. He also remarked that, if the true inter- capacity of acquiring funds, for the purpose of its pretation of the statute is that it casts a duty on

creation, which can be applied to the satisfaction the corporation, not only to construct the works,

of any judgment for damages but also to use reasonable care and skill in their ed against it. We also understand that the docconstruction and in their maintenance for use, tride is that the corporate funds can be applied, there is nothing illogical in holding that those who notwithstanding the trusts for which they are are injured by a neglect of the duty may maintain held, because the liability is incurred in carrying an action against the corporation, and be indem- out the trusts and is incident to them. We do nified out of the funds vested in it by the statute.

not understand, however, that the corporate propThe case of Duncan v. Findlater was cited by Mr. erty is all equally applicable. For instance, in Justice Blackburn in his opinion, and the language the case of Mersey Docks v. Gibbs it was not dethere used by Lord Cottenham, which was chietly

cided that the docks themselves could be resorted relied on as authority for the decision of Feoffees to, but only the unapplied funds which the of Heriots Gospital v. Ross, was expressly disap

board then had might afterwards proved. It is remarkable, however, that the case quire. So in the case at bar; it may be of Feoffees of Heriot's Hospital v. Ross, though that some of the corporate property-the buildcited by counsel, does not seem to have attracted ings and grounds for example—is subject to the attention of either Mr. Justice Blackburn or of

so strict a dedication that it cannot be diverted to the other three learned lords who delivered con- the payment of damages. But however that may curring opinions.

be, we understand that the defendant corporation The language used by Lord Cottenham in Dun

is in the receipt of funds which are applicable gencan v. Findlater was criticised by Lord Wesbury

erally to the uses of the hospital, and following more pointedly even than by Mr. Justice Black

the decision in Mersey Docks v. Gibbs, we think a burn. He said in effect that he supposed Lord

judgment in tort for damages against the corporaCottenham regarded the funds of statutable boards

tion can be paid out of them. Indeed, we cannot as being in the nature of trust property, and had

see why these funds are not as applicable to the the idea that trust property would be protected in

payment of damages for torts as to the payment of equity from seizure and sale on execution for the

counsel for defending an action for such damages. torts of the trustees. He expressed the opinion

Both payments are to be regarded as incident to that this belief was erroneous. "It is much more

the administration of the trust. reasonable," he says “in such a case, that the POTTER, J., concurring: trust or corporate property should be amenable to

I concur in granting a new trial, but for reasonsthe individual injured, because there is then no somewhat different from those given by the other failure of justice, seeing that the beneficiary will members of the court. always have his right of complaint and his title to

The plaintiff sues the defendant for maltreat



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