Brown v. La Société Française De Bienfaisance Mutuelle

[476]

SMITH, C.

This is an appeal by the defendant from a judgment in favor of the plaintiff for the sum of $1,550 damages suffered by him while an inmate of defendant’s hospital, from the negligent and unskillful conduct of defendant’s surgeon in setting his fractured leg. No question is made by the appellant as to the sufficiency of the evidence to justify the verdict as to amount, or as to the negligence of the surgeon, but the sole question is as to the liability of the defendant therefor.

The plaintiff was admitted to the defendant’s hospital for surgical treatment upon the terms of paying for the operation fifty dollars, and for a separate room, if occupied by him, three dollars, or if occupying the general ward, two dollars per day. The operation was performed by the surgeon-in-chief of the society, who is paid by the month, the amounts received from the plaintiff going to the society. From this statement it it clear that the contract of the plaintiff was with the defendant, and that the surgeon was merely its servant or agent. The defendant, therefore, unless excepted from the general rule of

respondeat superior,

is liable for his negligence. (Deering’s Civ. Code, see. 2338, and eases cited.) But the contention of the appellant is, that it is a charitable institution, and that, as such, in the absence of allegation or proof of negligence fix their selection, it is not liable for the negligence of its servants. Two questions are thus presented,—the one as to the legal proposition involved, the other as to the character of the association. In support of the legal proposition, numerous authorities are cited by the appellant; and, though the proposition is not altogether undisputable, either on principle or authority, it may, for the purposes of the decision, be assumed to be correct.

(Ward

v.

St. Vincent’s Hospital,

50 N. Y. Supp. 466; 23 Misc. Rep. 91;

Hearns

v.

Waterbury Hospital,