542 HARVARD LAW REVIEW. in Feoffees of Heriofs Hospital v. Ross^ 12 CI. & Fin. (1846), also a Scotch appeal case. Holliday v. St. Leonard's Parish, it C. B. n. s. 192 (186 1), although dealing with the liability of a local surveying board, lays down a rule which is often invoked to protect charitable corporations :
- ' Persons intrusted with the performance of a public duty, discharging it
gratuitously, and themselves taking no personal share in the mode of its performance, are exempted from liability for the negligent acts of the persons employed by them." (Per Erie, C J., p. 204.) The great case on this point of law was decided in the House of Lords in 1866 {^^ Mersey Docks and Harbor Board '^ Trustees v. Gibbs, L. R. i H. L. 93). This case also, though not dealing with charitable corporations, is applicable to them. The court overthrows the dictum in Duncan v. Findlater. Trustees here managed certain docks solely for the public benefit ; but according to the terms of the incorporating statutes, as in- terpreted by Blackburn, J., a duty was imposed upon the corporation "to take reasonable care that they" (i.e. the docks) "were in a fit state " for public use ; and it was held that the corporation, despite its public nature, could not rid itself of liability for non-performance of its duty, by relegating performance of that duty to its servants. The funds of the corporation were held applicable to the payment of damages recovered for breaches of duty. Foreman v. Mayor c^c, L. R. 6 Q. B. 214 (1884), marks the limit reached by the English cases. K servant of the local board of highway surveyors had negligently left stones on the highway. It does not appear whether this was a breach of the duty imposed on the board, or mere collateral negligence of the servant. It was said, however, that a corporation established for public purposes was liable for the negli- gence of its servants to the same extent that a private person or private corporation would be liable; and it was also said that Mersey Docks d^r. Trustees v. Gibbs had overruled Holliday v. St. Leonard's, though not by name. In Donaldson v. Commissioners 6^r., 30 New Bruns. Rep. 379 (1890), plaintiff brought suit against a hospital for negligent treatment at the hands of the hospital physicians and nurses. The defendant's demurrer admitted the alleged duty to see that its patients received pro])er treat- ment, but rested its defence on the broad claim that a charitable cor- poration is not liable for torts of its servants, and cited Holliday v. St. Leonard's, and the earlier House of Lords cases, supra. It was properly held, however, that as the defendant had admitted a duty to bestow careful treatment, it was liable for non- performance of that duty, although the non-performance was due to its servants' negligence. This case plainly goes no farther than Mersey Docks &>c. Trustees v. Gibbs. In the United States, the decisions are irreconcilable. Downes v. Harper Hospital, loi Mich. 555 (1894), takes the extreme view supported in Feoffees 6^r. v. Ross^ supra, that a charitable corporation can never be liable for the negligence of its servants. McDonald v. Massachusetts General Hospital, 120 Mass. 432 (1876), and Ufiion Pacific Ry. Co. v. Artist, 60 Fed. Rep. 365 (1894), take a middle ground, that the duty of a charitable hospital corporation is confined to the exercise of reasonable care in furnishing suitable accommodations and competent attendants ; and that beyond the performance of these duties there is no liability of the corporation for the negligence of its servants. Clavi?i v. R. I. Hos- pital, 12 R. I. 411 (1879), 01^ the other hand, holds that, once the relation
