and is now acting as the administrator of the estate of the said Nancy M. Taylor, deceased, as is set forth in said amended petition.

Defendant says that it is now, and has been ever since it was organized, a public and charitable corporation; that it was incorporated and organized, and has been operated, exclusively for the purpose of providing hospital accommodations for the sick and injured; and that it never has had, has not now, and cannot have, any capital stock; that it never has declared, and cannot declare, dividends; and that it never made, and cannot make, any profits, either for the corporation or for its members; that its funds and income have always been, and will continue to be, derived from the rents, donations, devises and bequests, moneys and supplies from, and by, benevolent persons; that such funds and income have been heretofore used for the erection, support and maintenance of a public and charitable hospital for the sick and injured, and they will have to be used in the future for the improvement of said hospital, and the support and maintenance of the sick and injured therein lodged; that the persons who have heretofore made such donations, grants, devises, bequests and subscriptions, are so numerous that they could not be stated in this pleading.

Defendant further says that said hospital has always been, and is now, open to all persons who apply for its benefits and accommodations, as long as it has rooms to accommodate them.

That it has had, and now has, rooms which are for the occupation of patients who are gratuitously lodged and cared for, and it has had, and now has a number of rooms for those who are able to and willing to pay for lodging and care a reasonable compensation, and the income so received from pay patients has always been used to support and maintain the said hospital.

Defendant further says that the said Nancy M. Taylor engaged and agreed to pay this defendant ten ($10) dollars per week for her boarding and nursing during the time she was at the hospital. She occupied a room, and was furnished board and nursing from the 25th day of May, until the 30th day of June, 1899, for which she paid the hospital the sum of $51.40. That such sum so paid to this defendant was wholly inadequate as compensation for the board and nursing so furnished to the said Nancy M. Taylor.

Wherefore, this defendant prays to be hence dismissed, with its costs in this behalf expended.

REPLY.

Plaintiff for reply to the second defense set out in the answer of the defendant herein says:

That he has no knowledge and is not advised, except from the allegations of the said second defense, as to whether defendant is a public and charitable corporation; that it was incorporated and organized, and has been operated exclusively for the purpose of providing hospital accommodations to the sick and injured, and that it never has had, is not now, and cannot have any capital stock; that it never has declared and can not declare dividends; and that it never made and cannot make any profits either for the corporation or its members; that its funds and income have always been and will continue to be derived from the rents, donations, devises, and bequests, moneys, and supplies from and by benevolent persons; that such funds and income have been heretofore used for the erection, support, and maintenance of a public and charitable hospital for the sick and injured, and will have to be used in the future for the improvement of said hospital and the support and maintenance of the sick and injured therein lodged; that the persons who have heretofore made such donations, devises, bequests and subscriptions are so numerous that they can not be stated in this pleading; and he therefore denies each and every allegation of said second defense of defendant's answer in reference thereto.

Plaintiff further replying, says, that he has no knowledge and is not advised, except from the allegations of the said answer, as to whether defendant's said hospital has always been and is now open to all persons who apply for its benefits and accommodations as long as it has rooms to accommodate them; and therefore denies said allegations of said second defense.

Plaintiff further replying says, that he has no knowledge and is not advised, except from the allegations of said answer, as to whether the defendant has had and now has six wards which will accommodate forty-five patients, and which are for the occupations of patients who are gratuitously lodged and cared for, and that it has had and now has forty-five rooms for those who are able to and willing to pay for lodging and care a reasonable compensation, and that the income so received from pay patients has always been used to support and maintain said hospital; and therefore denies each and every allegation of defendant's second defense in said answer in reference thereto.

Plaintiff admits that defendant derives an income from the pay of patients treated and cared for at its said hospital.

Further replying, plaintiff denies that the sum paid by the said Nancy M. Taylor was wholly inadequate as compensation for the board and nursing so furnished to the said Nancy M. Taylor.

And with the exception of the admissions in said answer of matters.

alleged in plaintiff's amended petition and of the facts herein before expressly admitted, the plaintiff denies each and every allegation in defendant's second defense in its said answer contained.

JOHNSON, J. The question presented by the demurrer to the second defense of the answer is whether, under the facts set out in that defense, the defendant is liable for the negligence of the nurse in leaving the sponge in the body of the deceased. More definitely: Do the averments that the defendant is a public and charitable corporation, engaged in operating, maintaining, and supporting a public charitable hospital in the manner and for the purposes set forth, exempt defendant from liability for the negligence of the nurse in connection with the operation on the decedent at the time she was a pay patient of the hospital? This question has been decided in some other jurisdictions, and counsel have rendered valuable assistance by able and exhaustive briefs.

Defendant contends that the judgments of the courts below may be sustained on all or any of the several grounds, the first of which is that, being a charitable corporation operating a charitable hospital, it was not liable for the negligence of its employees, if such employees were selected with reasonable care. The position of plaintiff is that the doctrine of respondeat superior applies, and should be enforced, notwithstanding the character of the corporation or the nature of its undertakings, and that, having accepted deceased as a pay patient, a contractual relation existed between the parties, which imposed obligations on the defendant different from those to one who did not sustain such relation. Section 3240, Revised Statutes, provides for the elecrion of trustees of a corporation, such as defendant, and § 3261, Revised Statutes, provides that the trustees of a corporation, created other than for profit, shall be personally liable for all debts of the corporation contracted by them.

'There is a direct allegation in the answer in this case that defendant is a public and charitable corporation maintaining a public and charitable hospital. We think this hospital, owned and operated in the manner set out, is a public charity, and this without reference to whether some of the patients are what are termed pay patients or not. In Gerke v. Purcell, 25 Ohio St. 229, the court declares: "The fact that the use of property is free is not a necessary element in determining whether the use is public or not. If the use is of such a nature as concerns the public, and the right to its enjoyment is open to the public upon equal terms, the use will be public, whether a compensation be exacted or not."

In McDonald v. Massachusetts General Hospital, 120 Mass. 432, 21 Am. Rep. 529, the corporation, from the description of its objects and the manner of its creation and operation, was similar to the defendant in this case. The court says in deciding the case: "The fact that its funds are supplemented by such amounts as it may receive from those who are able to pay wholly or entirely for the accommodation they receive does not render it the less a public charity. All sums thus obtained are held upon the same trust as those which are the gifts of pure benevolence. * * * If, however, any contract can be inferred from the relation of the parties, it can only be on the part of the corporation that it shall use due and reasonable care in the selection of its agents. *** The liability of the defendant corporation can extend no further than this: If there has been no neglect on the part of those who administered the trust and control its management, and if due care has been used by them in the selection of their inferior agents, even if injury has occurred by the negligence of such agents, it cannot be made responsible. The funds intrusted to it are not to be diminished by any such casualties, if those immediately controlling them have done their true duty in reference to those who have sought to obtain the benefit of them."

In Hearns v. Waterbury Hospital, 66 Conn. 98, 33 Atl. 595, 31 L. R. A. 224, the court state that the only question was the liability of the defendant for the negligent conduct of physicians and nurses employed by it, and in the selection of whom it has exercised due care. In this case there is a very full discussion of English and American cases touching the question, and the conclusion arrived at was that the hospital corporation was not liable, on grounds of public policy, for injuries caused by personal neglect of duty by a servant whom it has selected with due care.

The plaintiff, in Powers v. Mass. Homeopathic Hospital, 109 Fed. 294, 47 C. C. A. 122, 65 L. R. A. 372, was a pay patient, and was injured by the negligence of a nurse in placing a rubber bag full of hot water against her side, burning her. Her counsel contended, as counsel for plaintiff in this case contend, that, she being a pay patient, the hospital was liable, because she was not the recipient of their charity; but the court denied the relief, and say: "In our opinion, a paying patient in the defendant hospital, as well as a nonpaying patient seeks and receives the services of a public charity."

Liability to a pay patient was denied in Downes v. Harper Hospital, 101 Mich. 555, 60 N. W. 42, 25 L. R. A. 602, 45 Am. St. Rep. 427, and one of the grounds on which the court puts its decision was that decedent, having accepted the benefit of the charity, did so on

the understanding that the fund could not be diverted by the torts of the managers of the fund or their employees. The court say: "The fact that patients who are able to pay are required to do so does not deprive the defendant of its eleemosynary character, nor permit a recovery on account of the existence of the contract relations."

Other cases in which the same conclusion was arrived at, some of the courts adopting a somewhat different line of reasoning, are: Farrigan v. Pevear, 193 Mass. 147, 78 N. E. 855, 7 L. R. A. (N. S.) 481, 118 Am. St. Rep. 484; Fire Ins. Patrol v. Boyd, 120 Pa. 624, 15 Atl. 553, 1 L. R. A. 417, 6 Am. St. Rep. 745; Union Pac. Ry. Co. v. Artist, 60 Fed. 365, 9 C. C. A. 14, 23 L. R. A. 581.

Judge Stewart, in his excellent work on Legal Medicine (§ 96), after an examination of the cases on the subject, says: "The doctrine of the Massachusetts cases may be said to be the law followed by other States, and is the proper legal view to take of this question; the reasoning of the court being so sound as to seem irrefutable."

Counsel for plaintiff suggests that some of the American cases are predicated on the English case of Holliday v. Vestry of St. Leonard's, 11 C. B. (N. S.) 192, and some other cases, which, he insists have been impliedly repudiated by the later case of Mersey Docks v. Gibbs, L. R. 1 H. L. 93, which enforced the doctrine of respondeat superior.

We think this contention is not sound, because the company in the latter case was a trading company, and not a public charity in the sense that defendant here and similar corporations are. Mr. Justice Blackburn, who gave opinions in the cases referred to, said, in Docks v. Cameron, 11 H. L. 465: "Whatever may be the law as to exemption of property occupied for charitable purposes, it is clear that the docks in question come within no such exemption."

But even if it appears that the greater weight of authority outside of Ohio falls against his view, counsel for plaintiff insists that such authority is not in harmony with the established doctrine in this State, and refers to the cases of Smith v. Cincinnati, 4 Ohio, 500-514; Dayton v. Pease, 4 Ohio St. 80; Dunn v. Agricultural Society, 46 Ohio St. 96, 18 N. E. 496, 1 L. R. A. 754, 15 Am. St. Rep. 556; Toledo v Cone, 41 Ohio St. 149; Murphy, Adm'r v. Holbrook, 20 Ohio St. 137, 5 Am. Rep. 633.

We do not think these cases sustain plaintiff's view of the question made by this answer. Smith v. Cincinnati, Dayton v. Pease, and Toledo v. Cone, supra, were cases in which the injury was done by the employees of the cities, in the performance of public works undertaken for the benefit of the cities, and in the exercise of powers and duties granted and imposed on them as municipal corporations. Of