(130 Md. 265) mayor and city council by ordinance to delegate to the commissioner of highways the LOEFFLER v. TRUSTEES OF SHEPPARD choice as between different materials, and & ENOCH PRATT HOSPITAL. there is some of the language in the case of Baltimore v. Stewart, supra, which would seem sufficient warrant for the intimation; but when writing the opinion in the Gahan Case five years later than the Stewart Case, Chief Judge McSherry referred to the language used by him in the earlier case as being "obiter" on the question of the selection of material, and in the Gahan Case distinctly sustained the committee to the board of awards a selection as between different materials after bids had been opened. In the Owners' Realty Co. v. Baltimore, 112 Md. 477, 76 Atl. 575, the action was one to recover from an owner the cost of the removal of a nuisance. By the ordinance then being considered such recovery was to be had by suit, and the effect of this provision was therefore to give the owner his day in court, where the propriety of the charge made against him could be fully heard and properly determined. In deciding the Ulman Case, supra, special reliance was placed upon the decision of the Supreme Court of the United States in Spencer v. Merchant, 125 U. S. 345, 8 Sup. Ct. 921, 31 L. Ed. 763, with which decision that in the Ulman Case was made to conform. In varying ways the same question has been a number of times presented to the Supreme Court of the United States since, the last reported case being that of the St. Louis Land Co. v. Kansas City, 241 U. S. 430, 36 Sup. Ct. 647, 60 L. Ed. 1072, decided in 1916, where it was held that, if the Legislative body provides for notice to and hearing of each proprietor at some state of the proceedings upon the question of tax which shall be assessed upon his property, there is no taking without due process of law. It is not now intended to say that to enable a tax to be collected provision must be made in every instance for a hearing in court. There have been instances where boards or commissioners have been vested with quasi judicial powers for a limited, clearly defined class of cases; but what is now decided is that, unless there is a provision in the statute or ordinance which gives an opportunity to the owner of the property to be heard with regard to any tax or assessment levied upon his property, the same is invalid, and not capable of enforcement. The ordinance under which the highway engineer assumed to act in this case was without any such provision, and the decree of the circuit court No. 2 of Baltimore city, from which this appeal is taken, must be reversed, and the case remanded, to the end that a final decree may be entered therein, in accordance with the views herein expressed. Decree reversed, with costs to the appellant, and the cause remanded. (No. 5.) (Court of Appeals of Maryland. Feb. 2, 1917.) CHARITIES 45(2)-LIABILITY FOR TORT. dition of a fire escape attached to realty of a A fireman, injured through the defective concharitable corporation administering a trust fund for the care and cure of the indigent insane, could not recover damages against the tort cannot be recovered from a fund held in corporation for his injuries, since damages for trust for charitable purposes. [Ed. Note.-For other cases, see Charities, Cent. Dig. § 103.] Appeal from Baltimore City Court; Robert F. Stanton, Judge. "To be officially reported." Suit by Frederick John Loeffler against the Trustees of the Sheppard & Enoch Pratt Hospital, a body corporate. From a judgment for defendant, plaintiff appeals. Affirmed. Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ. H. Arthur Stump, Jr., and Michael P. Kehoe, both of Baltimore, for appellant. Julian S. Jones, of Baltimore, for appellee. THOMAS, J. This suit was brought by the appellant against the Trustees of the Sheppard & Enoch Pratt Hospital, a body corporate, to recover for injuries alleged to have been caused by the negligence of the defendant. The narr. alleges that the defendant was the owner of the premises known as 121 West Baltimore street, and that the plaintiff was "employed in the fire department of Baltimore City"; that on the 14th of December, 1912, the plaintiff with other members of his company was ordered to the defendant's premises for the purpose of putting out a fire in the rear of its building; that, after the fire had been gotten under control, he was ordered to lower the fire escape; and that in order to do so he stepped on the fire escape, and, while going up the same to lower the ladder, the ladder, because of its defective condition, which was known or should have been known to the defendant, slipped and broke his arm in several places. The defendant filed the general issue plea and two additional pleas. The second plea avers that the defendant was incorporated by the Act of 1853, c. 274, at the instance of the late Moses Sheppard, of Baltimore City, who by his last will and testament bequeathed and devised to the defendant "large and valuable property" for the purpose of founding and maintaining an asylum or hospital in which the insane poor, and those suffering from mental and nervous diseases, could be treated, and that the late Enoch Pratt, of Baltimore City, died in 1896, leaving a will by which he gave the residue of his estate to the defendant with directions that the income therefrom should be used in the first instance to complete the defendant's buildings and for the erection of such other buildings as would accommodate not less than 200 additional inmates, and that thereafter the income should be devoted to the cure of the indigent insane. The plea then alleges: "That ever since the said asylum or hospital has been so put in operation, in December, 1891, it has been conducted under the said charter as an asylum or hospital, in which the indigent insane, and those suffering from mental and nervous diseases, are received and treated, and, while so conducting the said asylum or hospital, the defendant has made provision for the reception and treatment of a limited number of patients who are able to make compensation for the room and attention they require. That all of the money needed to pay the expenses of the management and operation of the said asylum or hospital is supplied by the income derived from the investments of the money and the property devised and bequeathed to it by the last will of Moses Sheppard, and by the last will and testament of the late Enoch Pratt, and from several small donations and bequests from other persons, and by the money received from the limited number of patients who are able to make compensation for the room and attention they may require, all of which funds form the common fund out of which the expenses of the management and operation of the said asylum or hospital are paid. The said defendant corporation has not at any time ever had any stockholders, and that none of the trustees of the said corporation receive any compensation of any kind for themselves as such trustees, and all of the funds and revenues derived by the said corporation from the investments of its property, and from such patients as pay for room and attention afforded them in the said asylum or hospital, are applied and apportioned, either to the payment of the salaries of the physicians, surgeons, servants, and agents necessary and required for the proper operation and management of the said asylum or hospital, or to the payment of the other expenses necessarily involved in the management, operation, and development of the said asylum or hospital, so as to enable the said defendant to provide in the said asylum or hospital for the reception and treatment without charge of indigent insane and indigent persons suffering from nervous and mental diseases, without regard to age or sex, and that all of the funds are held in trust solely for the charitable purposes above set forth. That the premises described in the declaration as 121 West Baltimore street constitute a part of the trust estate held by the defendant for the said charitable purposes as above set forth, and that the fire escape mentioned in the declaration was erected and constructed by an experienced, skillful, and competent contractor, and the work was done by experienced and competent mechanics." third pleas, but the court overruled the demurrer, and, the plaintiff having declined to reply to these pleas, judgment was entered for the defendant. From that judgment, the plaintiff has appealed. The defense relied on in this case is one that has given rise to much discussion and a great diversity of judicial opinion, not only as to the proper rule in such cases, but also as to the principle upon which it should be based. In the case of Tucker v. Mobile Infirmary Ass'n, 191 Ala. 572, 68 South. 4, L. R. A. 1915D, 1167, decided in 1915, the Supreme Court of Alabama, dealing with the question as an open one in that state, says: "While it must be conceded that the great weight of authority in this country is in favor of exemption to an institution engaged in charitable work from liability for the torts of its servants or agents, yet there is some contrariety of opinion as to the principles upon which this result is rested, and varied reasons are given not at all consistent one with the other. For the purposes of this case, these authorities may be grouped into three classes. One line of decisions would rest exemption from liability upon what might be termed 'the trust fund theory': that is, that all funds of such institutions are held in trust for the particular charitable purpose, and that it is a breach of trust to apply them to any other purpose, and that the payment of damages due to the negligence of the servants of the institution is not a purpose contemplated by the trust, and that therefore their funds cannot be diverted to the payment thereof. Other authorities rest their conclusion, it seems, upon the theory that the rule of respondeat superior does not apply to such institutions, for the reason that the servants in the exercise of their duties are not engaged in the work which is for the benefit or profit of the master, and that such is essential to call for the application of this rule. Still other authorities base their conclusion upon what might be termed an 'implied assent theory'; that is, that one who accepts the benefit of charity must be taken impliedly to have assumed the risk of negligent injuries caused to him by servants who have been properly employed or retained in his service, or to have waived liability of a charitable institution for injuries so received." In that case, the court, after an extended discussion of the cases supporting the several theories mentioned, rejected the doctrine of absolute exemption upon the "trust fund theory," and the theory that the rule of respondeat superior does not apply to such institutions, and, while crediting the theory of "implied assent" with the weight of what it termed the more recent and best considered cases, held that a paying patient in a hospital, "conducted without stock or profit, in which indigent patients are treated without cost," could recover damages for injuries inflicted through the negligence of an attending nurse. The third plea, which alleges that the "defendant is a corporation, duly incorporated under the laws of the state of Maryland, for the charitable purpose of organizing and conducting an asylum or hospital in which the indigent insane, and those suffering from In the case of Downes v. Harper Hospital, nervous and mental diseases, may be treat- 101 Mich. 555, 60 N. W. 42, 25 L. R. A. 602, ed," contains substantially the same aver- 45 Am. St. Rep. 427, where it was held that ments in regard to the sources of the defend- there could be no recovery against an eleeant's income, the application thereof, its ti- mosynary institution for an injury to an intle to the property 121 West Baltimore street, mate caused by the negligent or tortuous and the construction of the fire escape. acts of its managers or employés, the Su ger," it is possible to reconcile most of the decisions on the question. However that may be, what has been spoken of as the "trust fund theory" was adopted in this state in Perry v. House of Refuge, 63 Md. 20, 52 Am. Rep. 495, without qualification, and has been followed and approved in the later decisions of this court. In that case, Judge Yellott, speaking for the court, and referring to the funds of the House of Refuge, said: "If the contention of the learned counsel for the plaintiff be true, it follows that the charity or trust fund must be used to compensate injured parties for the negligence of the trustees, or architects and builders, upon whose judgment reliance is placed as to plans and strength of materials; of physicians employed to treat patients; and of nurses and attendants. In this way the trust fund might be entirely destroyed, and diverted from the purpose for which the donor gave it. Charitable bequests cannot be thus thwarted by negligence for which the donor is in no manner responsible. If, in the proper execution of the trust, a trustee or an em"These are the funds of the institution, conployé commits an act of negligence, he may be trolled by the managers, not for their own profit held responsible for his negligent act; but the or benefit, but solely for the charitable purposes law jealously guards the charitable trust fund, designated by its organic law. This, then, is and does not permit it to be frittered away by an institution resting on an eleemosynary founthe negligent acts of those employed in its ex-dation. In McDonald v. Mass. General Hospiecution. The trustees of this fund could not by tal, 120 Mass. 432 [21 Am. Rep. 529], it is held their own direct act divert it from the purpose that a corporation, deriving its funds mainly for which it was given, or for which the act of from public and private charity, and holding the Legislature authorized the title to be vested them in trust for the object of sustaining the in the defendant. It certainly follows that the hospital, without expectation or right on the fund cannot be indirectly diverted by the tor- part of those immediately interested in the cortuous or negligent acts of the managers of the poration to receive compensation for their own fund, or their employés, though such acts result benefit, is a public charitable institution; and, in damage to the innocent beneficiary. Those where it has exercised due care in the selecvoluntarily accepting the benefit of the charity tion of its agents, it is not liable in an action accept it upon this condition. The fact that for injury caused by their negligence.' patients who are able to pay are required to do so does not deprive the defendant of its eleemosynary character, nor permit a recovery for damages on account of the existence of contract relations. The amounts thus received are not for private gain, but contribute to the more effectual accomplishment of the purpose for which the charity was founded." After quoting the language of Lord Cottenham, Lord Brougham, and Lord Campbell in Heriot Hospital v. Ross, 12 C. & F. 507, Judge Yellott said further: "In the absence of any decisions in Maryland, we are constrained to adopt the exposition of principles by these eminent English judges, and are thus led to the determination that damages cannot be recovered from a fund held in trust for charitable purposes. In the language of Lord Campbell, 'the wrongdoer must pay from his own pocket.'" The later case of Bruce v. Central M. E. Church, 147 Mich. 233, 110 N. W. 954, 10 L. R. A. (N. S.) 74, 11 Ann. Cas. 150, holds that the rule announced in the Downes Case only applies where the party seeking to re- In Weddle v. School Com'rs, 94 Md. 334, cover is a beneficiary of the trust, and Jus- 51 Atl. 289, where the action was brought tice Carpenter, speaking for the court, says: against the board of county school commis"I conclude from this reasoning that corpora- sioners of Frederick county to recover damtions administering a charitable trust, like all ages for the death of a child while a pupil other corporations, are subject to the general laws of the land, and cannot therefore claim in one of the public schools of the county alexemption from responsibility for the torts of leged to have been caused by the negligence their agents, unless that claim is based on a con- of the defendant in allowing a wire to be tract with the person injured by such a tort, and strung across the school lot against which that Downes v. Harper Hospital and other similar cases are consistent with this rule. They the child ran and was injured, the court, rest upon the principle, correctly stated in Pow-through Judge Briscoe, said: ers v. Homœopathic Hospital, supra [109 Fed. 2941, 47 C. C. A. 122 [65 L. R. A. 372], viz., that the beneficiary of such charitable trust enters into a contract whereby he assumes the risk of such torts." In Hordern v. Salvation Army, 199 N. Y. 233, 92 N. E. 626, 32 L. R. A. (N. S.) 62, 139 Am. St. Rep. 889, the Court of Appeals of New York follows the rule announced in Bruce v. Central M. E. Church, supra; and in the later case of Schloendorff v. Society of New York Hospital, 211 N. Y. 125, 105 N. E. 92, 52 L. R. A. (N. S.) 505, Ann. Cas. 1915C, 581, where the hospital surgeon operated against the wishes of the patient, the court held the hospital not liable on the ground that the surgeon was not the servant of the defendant. "There is no power given the boards of school commissioners to raise money for the purpose of paying damages, nor are they supplied with means to pay a judgment against them. All of their funds are appropriated by law to specific purposes and they cannot be diverted by them. The Constitution of the state (section 3, art. 8) provides that the school fund of the state shall be kept inviolate and appropriated only to the purposes of education. In Perry v. House of Refuge, 63 Md. 27 [52 Am. Rep. 4951, this court distinctly held, in adopting the English decisions on the subject, that damages could not be recovered from a fund held in trust. for charitable purposes." In Martin v. Moore, 99 Md. 41, 57 Atl. 671, Perry v. House of Refuge is again referred to as authority for the proposition that: "A corporation instituted for charitable purposes cannot be made liable in an action for damages for an assault committed by one of its officers." And in the case of State v. Rich, 126 Md. 643, 95 Atl. 956, decided in 1915, this court, speaking through Judge Urner, said: It is said in 5 R. C. L. p. 375, that by dividing the decisions into two classes, "those cases in which the injury was received by a person who, at the time, was a recipient of the benefit of the charity, and those cases in "In the case before us it cannot be successful a conclusion. the terms were used in Perry v. House of Refuge, and that in the case of Farrigan v. Pevear et al., 193 Mass. 147, 78 N. E. 855, 7 L. R. A. (N. S.) 481, 118 Am. St. Rep. 484, 8 Ann. Cas. 1109, the Supreme Judicial Court of Massachusetts held that: can rightfully apply any of the funds in its | fendant in Mersey Board v. Gibbs was not a hands to the payment of claims for personal charitable institution in the sense in which injuries, or that it is invested with any authority to raise money for that purpose. The plain and explicit provisions of the law defining the powers of the commission, and directing the application of its funds, effectually prevent such The right of a person assaulted by an officer of the House of Refuge to maintain an action therefor against that institution was denied in Perry v. House of Refuge, 63 Md. 20 [52 Am. Rep. 495], the theory ply in case of trustees who are administering a "The rule of respondeat superior does not apof the decision being that 'damages cannot be recovered from a fund held in trust for charita- fund created for the sole purpose of educating ble purposes. The ruling in that case was cited and maintaining indigent boys without recomin Weddle v. School Com'rs, supra, as support-pense, who have exercised reasonable care to ing by analogy the conclusion that a board of select competent servants.' school commissioners is not suable in tort because the funds it administers are fully appropriated by law to uses which do not contemplate such a liability." It is true, in Perry v. House of Refuge the assault for which damages were sought was committed upon an inmate of the institution, but the decision was not based upon the doctrine of "implied assent," waiver, or assumed risk by the beneficiary of a charitable trust. It was made to rest upon the principle that trust funds cannot be diverted from the purposes to which they are devoted by the terms of the trust, and it was in recognition of that principle only that Perry v. House of Refuge was cited and relied upon by this court as authority for the conclusions reached in Weddle v. School Com'rs, supra, and State v. Rich, supra. the English and Massachusetts decisions upBut whatever may be the present state of on the question, the rule announced in Perry v. House of Refuge is firmly established in this state, and approved in Parks v. Northwestern University, 218 Ill. 381, 75 N. E. 991, 2 L. R. A. (N. S.) 556, 4 Ann. Cas. 103; Williamson v. Louisville Industrial School of Reform, 95 Ky. 251, 24 S. W. 1065, 23 L. R. A. 200, 44 Am. St. Rep. 243; Leavell v. Western Ky. Asylum, 122 Ky. 213, 91 S. W. 671, 4 L. R. A. (N. S.) 269, 12 Ann. Cas. 827; Jensen v. Maine Eye and Ear Infirmary, 107 Me. 408, 78 Atl. 898, 33 L. R. A. (N. S.) 141; Adams v. University Hospital, 122 Mo. App. 675, 99 S. W. 453; Whittaker v. St. Luke's Hospital, 137 Mo. App. 116, 117 S. W. 1189; Fire Insurance Patrol v. Boyd, 120 Pa. 624, It is suggested by the appellant that the 15 Atl. 553, 1 L. R. A. 417, 6 Am. St. Rep. case of Heriot Hospital v. Ross, 12 C. & F. 745; Gable v. Sisters of St. Francis, 227 Pa. 507, relied upon in Perry v. House of Refuge, 255, 75 Atl. 1087, 136 Am. St. Rep. 879; was overruled in Mersey Board v. Gibbs, 14 | Abston v. Waldon Academy, 118 Tenn. 24, 102 L. T. Rep. 677, and that the further decisions | S. W. 351, 11 L. R. A. (N. S.) 1179; Hill v. in Massachusetts show that the doctrine an-Tualatin Academy, 61 Or. 190, 121 Pac. 901. nounced in McDonald v. Mass. General Hos- The facts set up in the defendant's secpital, 120 Mass. 432, 21 Am. Rep. 529, referred to in Perry v. House of Refuge, was not intended to apply to injuries received by persons not beneficiaries of a charitable institution. It may be observed that the de ond and third pleas and admitted by the demurrer constitute a bar to the plaintiff's action, and we must therefore affirm the judgment of the court below. Judgment affirmed, with costs. (40 R. I. 214) PARKER v. SUPERIOR COURT. (No. 272.) (Supreme Court of Rhode Island. March 30, 1917.) 1. PROCESS 36-RETURN-County. Unless a proceeding has been removed to another county, the statute and orderly practice require that process be made returnable in the county where the proceeding was started. [Ed. Note. For other cases, see Process, Cent. Dig. $ 30, 31.] 2. PLEADING 335-FILING-PLACE. Pleadings, motions, etc., should ordinarily be filed with the clerk of court for the county in which the action was brought. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 1015, 1016.] 3. MOTIONS 9-PLACE OF FILING. A motion should be filed in the county where suit was brought, although the court had ordered the papers transmitted to another county under Gen. Laws 1909, c. 273, § 12, and had power to hear motions in such other county under Gen. Laws 1909, c. 287, § 8. law was brought in the superior court for the county of Kent, and was duly entered by filing the bill of complaint in the office of the clerk of said court. On January 19, 1917, a justice of the superior court ordered the clerk of the superior court for the county of Kent to transmit the papers in said cause to the clerk of the superior court for the counties of Providence and Bristol. The reason for said order does not appear. On January 23, 1917, the complainant filed her motion in the office of the clerk of the superior court for the counties of Providence and Bristol asking that said cause be set down for the framing of issues of fact. On February 17, 1917, at Providence, said motion was heard before a justice of the superior court, and said justice ordered the entry of a decree appointing a master to frame issues of fact. The respondent objected to said action on the ground that the motion was not properly fil [Ed. Note.-For other cases, see Motions, ed in Providence, and that said justice was Cent. Dig. § 6.] 4. CERTIORARI 4-JUDICIAL PROCEEDINGS. Ordinarily certiorari will lie only to correct final determinations and where no other remedy is expressly provided. [Ed. Note.-For other cases, see Certiorari, Cent. Dig. § 4.] 5. CERTIORARI 29-TECHNICAL ERrors. Certiorari will not lie to correct a technical or formal error which has caused petitioner no substantial injury. The without jurisdiction in the premises. respondent now asks this court, on review in certiorari, to quash the record of said order and decree. [1-3] By law the superior court holds its sessions at certain times and places within and for each of the different counties of the state, save that it holds sessions at Providence for the counties of Providence and [Ed. Note. For other cases, see Certiorari, Bristol. Said court has a separate seal in Cent. Dig. & 42.] 6. CERTIORARI 9-DISCRETION OF COURT. Issuance of a writ of certiorari is discretionary with the court. [Ed. Note. For other cases, see Certiorari, Cent. Dig. §§ 15, 16.] 7. CERTIORARI 4 INTERLOCUTORY DECREE APPOINTING MASTER. Certiorari will not lie to quash a record because an interlocutory decree appointing a master to frame issues was entered upon a motion filed in the wrong county, where such decree is not final, and substantially the same result could be secured upon a correctly filed motion, although the suit involves the title to real es tate. [Ed. Note. For other cases, see Certiorari, Cent. Dig. § 4.] Original certiorari proceedings by Ezra K. Parker against the Superior Court. Writ denied. each of the counties of Providence, Newport. Kent, and Washington. There is a clerk of said court for the counties of Providence and Bristol and a clerk of said court for each of the other counties of the state. Each of said clerks has an office and is required to keep minutes and records of all matters relating to causes and proceedings pending before said court in their respective counties. Unless there has been the removal of a proceeding from one county to another, in accordance with the statute, for the purpose of obtaining a fair and impartial trial in such proceeding, we find it to be the intent of the statute and essential to orderly practice that process in the superior court should be made returnable to that court in the county where the proceeding to which the process relates has been brought, and that pleadings, motions, and papers to be filed in a cause should be filed in the office of the clerk of said court for the county in which said cause has been brought. The statute required that the suit in equity now under consideration should be brought in the superior court for the county of Kent, and it is pending in the court for said county. The record of said cause as it proceeds should be made up by the clerk of the court for that county. It is essential to the completeness of the record, as the orderly history of the cause, that all papers to be filed in the proceeding should be filed with him. It is from the record in his office that Said cause in equity in accordance with the parties are to learn of the travel of the W. Louis Frost, of Providence, for petitioner. Dubois & Dubois, of Providence, for respondent. SWEETLAND, J. This is a petition for a writ of certiorari to be directed to the superior court ordering said court to certify for our inspection its record relating to the entry of a certain interlocutory decree in the cause in equity entitled Mary H. Steere v. Ezra K. Parker, now pending in said superior court, to the end that said record may be quashed as illegal. A writ of certiorari has been issued as prayed for and said record has been certified to us. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |