GARDNER, J.
Plaintiff (appellant here) brought this suit against the Mobile Infirmary Association for the recovery of damages alleged to- have been sustained by being scalded with boiling water both internally and. externally as a result of the negligence of one of the-nurses employed by defendant in care of the plaintiff,, and while such nurse was engaged in the duties of said employment. There were two counts in the complaint..
[575]*575The reporter will set out counts 1 and 2 and pleas 2 and 3 in his report of the case. Demurrers to these pleas were overruled and replications were filed. Plaintiff took nonsuit on account of adverse rulings'on the pleadings and brings the case here for review.
We think the pleas to the two counts ordered to be set out will be sufficient to present the question raised by the record.
Each of the counts alleged that for a reasonable compensation the defendant undertook and promised to properly nurse and care for plaintiff preparatory to and during a surgical operation and thereafter until she had sufficiently recovered to leave the institution.
In the first count the injuries are alleged to have been the result of negligence of one of the nurses employed by the defendant in care of the plaintiff, and in the second count as a result of defendant’s negligently intrusting the care of the plaintiff, while under an anaesthetic, to an incompetent nurse.
It is insisted by counsel for appellant in brief that the gomplaint is one for damages for the breach of a contract, citing Western Union Telegraph Co. v. Littleton, 169 Ala. 99, 53 South. 97; McDaniel v. Johnson, 110 Ala. 526, 19 South. 35; Mott v. Jackson, 172 Ala. 448, 55 South. 528. In the case first cited, quoting from the case of Wilkinson v. Moseley, 18 Ala. 288, it was said: “If the cause of action, as stated in the declaration, arises from a breach of promise, the action is ex contractu; but if the cause of action arises from a breach of duty, growing out of the contract, it is in form ex delicto and case.”
The opinion in Western Union Telegraph Co. v. Littleton, supra, also makes note of the fact that it has frequently been said that it is often difficult to determine [576]*576whether a count is on the contract or in tort, and regret is expressed that such is the case.
In each count of the complaint as above shown, the expressed promise and undertaking for a reasonable compensation to properly nurse and care for the plaintiff is alleged, and it is insisted therefore that the cause of action is shOAvn to arise from the breach of this promise, and therefore that the action is ex contractu. However, this we need not determine, as Ave do not deem it material for the reasons which Avill hereafter be stated.
It is insisted that, the action being ex contractu, the cases of Ward v. St. Vincent’s Hospital, 39 App. Div. 624, 57 N. Y. Supp. 784, and Armstrong v. Wesley Hospital, 170 Ill. App. 81, are authorities to support the cause of action as for the breach of an expressed contract resulting in injury to the patient. It must be conceded, if the counts are so construed, that such seems to be the effect of these decisions.
(1) Prom the view we take of the case, it is also- unnecessary that this be determined, as we are in accord with the following quotation from the case of Dunoon v. St. Luke Hospital, 113 App. Div. 68, 98 N. Y. Supp. 867, found recited in Duncan v. Nebraska Sanitarium Association, 92 Neb. 162, 137 N. W. 1120, 41 L. R. A. (N. S.) 973, Ann. Cas. 1913E, 1127: “Nor can Ave see any reason why there should be any difference in the rule Avhere the tortious act which caused death is alleged to be a breach of an expressed contract than Avhere it is alleged to be a breach of an implied contract, or 'where no contractual relation at all existed.”
We are therefore of the opinion that, in so far as this case is concerned, the rule of liability would be the same whether an expressed contract were alleged or merely one implied by law.
[577]*577That the complaint upon its face, in ordinary cases, shows a right of action in the plaintiff against the defendant, is, as we view the pleadings, practically conceded: The defendant, as shown more fully by plea 3, seeks exemption from liability because of the fact that it was engaged in the business of conducting a charitable hospital, that the corporation issued no stock, has no stockholders, is not operated for profit, and that while its ministrations were not confined exclusively to the indigent, and pay was required and received- from such patients as were able to pay for the service, yet the moneys earned by the corporation were applied exclusively in the operation of its hospital, payment of its debts, and the extension of its work as a charitable institution; and it is then averred that the defendant exercised due care in the selection and retention of the nurse referred to in the complaint. In short, the defense is that, having exercised due care in the selection and,retention of the nurse, the defendant is exempt from all liability to the plaintiff, because of the fact that it is an institution organized, not for profit, but for charitable purposes.
The question presented is one of much interest, and a subject upon which much appears to have been written in recent years. It must be conceded at the outset that the great weight of authority in this country, certainly from a numerical standpoint, lies with the defendant in this case. It appears, however, to be conceded by counsel, and we have found nothing to- the contrary, that the question is an open one in this state, leaving us free to act without any constraint of the rule of stare decisis, and in accordance with what we deem to be the law.
Among the early cases in this country deciding such charitable institutions exempt from liability to the pa-[578]*578dent is that of McDonald v. Mass. General Hospital, 120 Mass. 432, 21 Am. Rep. 529; and it has been frequently cited and approved in subsequent cases in that jurisdiction. — Farrigan v. Puryear, 193 Mass. 147, 78 N. E. 855, 7 L. R. A. (N. S.) 481, 118 Am. St. Rep. 484, 8 Ann. Cas. 1109; Thornton v. Franklin Square House, 200 Mass. 465, 86 N. E. 909, 22 L. R. A. (N. S.) 486.
The above case of McDonald v. Mass. General Hospital has been frequently cited and followed in other jurisdictions, and we therefore think it important, at the outset to ca.ll attention to what seems to be the only authority relied upon in that opinion upon the question here under consideration — that of the English court in the case of Halliday v. St. Leonard, 11 C. B. (N. S.) 192, decided by the Court of Common Bench in 1861.
It is clear, however’, that in the subsequent case of Mersey Docks v. Gibbs, Law Rep. 1 H. L. 93 (11 H. L. 686), the principle of Halliday v. St. Leonard, supra, was not followed, but that in effect that authority was overruled. The principal opinion in the case of Mersey Dochs v. Gibbs was written by Mr. Justice Blackburn, and he was also the writer of the opinion in the case of Foreman, v. Castlebury Court of Queen’s Bench, Law. Rep. 1870-71, 214, wherein, speaking of the said case of Halliday v. St. Leonard, it is said in the opinion as follows: “Upon looking at the facts of that case it would appear that it would have been'the authority directly in point for the present defendants if the case was still an authority at all; but, upon looking at the reason of that decision, we consider it to be overruled by the decision of the House of Lords in the case of Mersey Docks v. Gibbs, L. R. 1 H. L. 93. It is not overruled by name, but the principle upon which that [579]*579case was decided in the House of Lords does overrule it. * * *”
It is therefore made clearly to appear that the English authority relied upon in the case of McDonald v. Mass. General Hospital, supra, had been in effect, and, so far as the principle announced therein is concerned, overruled in the case of Mersey Docks v. Gibbs, supra, and this is expressly stated in the case of Foreman v. Canterbury, supra, by Justice Blackburn, who was also the author of the opinion in the Mersey Docks Case. This is significant to be here noted because of the face that the McDonald Case seems to be among the early cases treating the question in this country. It seems to have been largely followed by other jurisdictions. The McDonald Case was decided in 1876, and the decision in the Mersey Docks Case antedates the McDonald Case some several years, as well also, it appears, does the Foreman Case, supra. This does not seem to have been taken note of or called to the attention of the Massachusetts court in the McDonald Case.
As said by the Supreme Court of Rhode Island in the case of Glavin v. Rhode Island Hospital, 12 R. I. Ill, 31 Am. Rep. 675: “The authority of McDonald v. Mass. Gen. Hospital, in so far as it rests upon Halliday v. St. Leonard, is seriously impaired by these cases. * * * ??
That the McDonald Case was rested upon the English authority which had been overruled is noted in a very recent English case (Hillyer v. Governors of St. Bartholomews Hospital, Law Reports 1909, 2 K. B. 820), wherein Kennedy, L. J., uses this language: “With the American and New Zealand cases which were cited to us by the learned counsel on both sides I do not think it necessary to deal. They are not in [580]*580agreement; in one of them, McDonald v. Mass. Gen. Hospital, relied upon by the defendants, the judgment appears to have been influenced by an English decision of Halliday v. St. Leonard, Shoreditch (3), which has been overruled by the House of Lords, in Mersey Docks, Trustees, v. Gibbs. See per Blackburn, J., in Foreman v. Mayor of Canterbury.”
The importance of directing attention to this situation at this time is further emphasized when we note the fact that the McDonald Case has been considered a leading case, if indeed not the pioneer case upon this particular question in this country and been followed, cited, and quoted from in many subsequent decisions. It is said to be a leading case in the note to 6 Cyc. 975, and in Taylor v. Hospital, 85 Ohio St. 90, 96 N. E. 1089, 39 L. R. A. (N. S.) 427, quoting from another, it is said:. “The doctrine of. the Massachusetts cases may be said to be the law followed by other states. ■5* *
The McDonald Case is cited and commented upon in Glavin v. R. I. Hospital, 12 R. I. 411, 34 Am. Rep. 675, and in the concurring opinion of Justice Potter we find the following remark: “The arguments of counsel have been very able, but their researches have only discovered one case nearly in point, McDonald v. Mass. Hospital, 120 Mass. 432 [21 Am. Rep. 529].”
It is further indicated in the opinion of Hearns v. Waterbury Hospital, 66 Conn. 98, 33 Atl. 595, 31 L. R. A. 224, that the McDonald Case was among the earliest in this country dealing with this question. The opinion states that the first case to which the attention of the court had been called was that of Richmond v. Long, 17 Grat. 375, 94 Am. Dec. 461, decided in Virginia] but it is further shown tha,t liability was denied in that case, on the ground that the management of [581]*581the hospital was under governmental powers, under the laws of Virginia, and that in fact the government was the principal or master. Such a case as the Virginia case is of the character as that decided by our own court in the case of White v. Alabama Insane Hospital, 138 Ala. 479, 35 South. 454, where the corporation was held to be only an arm or agency of the state, and cases of this character, therefore, are without application to the question we have at hand. Some of the decisions make note of the point that many of the cases could have been decided upon this doctrine. It is therefore clear that the MoDonalcl Case is among the earliest, if not the first, in this country which is directly in point.
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 liabilty 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 respond-eat superior does not apply to such institutions for the reason that the- servants in the exercise of their [582]*582duties are not engaged in the work which is for the benefit 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 Avho accepts the benefit of charity must he taken impliedly to have assumed the risk of negligent injuries caused to him by servants who have been properly employed or retained in this service, or to have waived liability of a charitable institution for injuries so received.
We Avill briefly note these three theories, taking them up in the order just named. A detail treatment, hoAVever, of each of the authorities relied upon Avould cause this opinion to be of undue length, and Ave will content ourselves with as brief a review as is practicable, citing some of the authorities whereby the reader, if interested, may pursue a thorough research.
The “trust fund theory,” as Ave have above termed it, rests, as previously stated, upon the reasoning that, as the funds are held in trust for a particular charitable purpose, it is a breach of that trust to apply them to any other purpose, and therefore the payment of damages occasioned by the torts of the servants or agents of such institution would result in a diversion of such trust funds. Followed to -its logical conclusion, this theory would result in absolute immunity from damages of any character being recovered against such institution, which would exempt them from liability of the servant to the patient, and to a third person, and indeed it would seem to also exempt them from damages from the breach of an expressed contract. The doctrine, we think, it clearly appears, can find no support in the English authorities. In the case of Mersey Docks v. Gibbs, supra, the corporation acted as a trustee for and collected tolls for the use of the docks, acted [583]*583without reward to itself, and the tolls or receipts were not applicable to the use of the corporation, but were devoted to the maintenance of the works, and in case of any surplus the toll rate was to be proportionately diminished. Here was a trust service for the public benefit, without reward and without expectation of profit on the part of those performing the service. In the opinion Mr. Justice Blackburn says: “Now, it is obvious that a shipowner who pays dock rates for the use of the dock, or the owner of goods who pays warehouse rates for the use of a warehouse and the service of the warehousemen is, as far as he is concerned, exactly in the same position, however the rates may be apportioned. He pays the rates for the dock accommodation, or for warehouse accommodation and services, and he is entitled to expect that reasonable care should be taken that he shall not be exposed to- danger in using the accommodation for which he has paid.”
(2) In the cases of Powers v. Mass. Homeopathic Hospital, 109 Fed. 291, 17 C. C. A. 122, 65 L. R. A. 372, and Bruce v. Central Methodist Episcopal Church, 117 Mich. 230, 110 N. W. 951, 10 L. R. A. (N. S.) 71, 11 Ann. Cas. 150, the English authorities upon this question are given some review, and we think demonstrate clearly that what we here term the “trust fund theory” finds no support in the English jurisprudence of this time. As said in the Powers Case, supra: “Whatever may be the limit of the liability of a political or municipal body in Great Britain for the torts of its servants, that limit is now in no way determined by any doctrine concerning the application of a trust fund.”
In the recent case of Basabo v. Salvation Army, 35 R. I. 22, 85 Atl. 120, 12 L. R. A. (N. S.) 1144, may be found a careful review of the authorities upon this ques[584]*584tion and a classification of them. The opinion points out many of the cases holding to the “trust fund theory” to such an extent as would create absolute immunity, and then other cases which, while apparently holding to the same trust fund theory, limit this exemption to cases where there urns no negligence in the selection or retention of the servants. It is unnecessary that we here cite these cases, as they are set out in the Basalto Case to which we are now referring. In speaking of these two classes of cases the opinion says: “Wet think these latter cases must be regarded as entirely inconsistent with the general proposition of the exemption of charitable corporations on grounds of public policy set forth in the previous cases, as ivas said in reference to many of these cases by Gaynor, J., in Kellogg v. Church Charity Foundation, 128 App. Div. 214, at page 217, 112 N. Y. Supp. 566, at page 569: ‘In many if not most, of the cases, a ground for the nonliability for the torts of agents or servants of charitable institutions is that to pay damages for such torts would be a diversion of their funds from the trust purposes for which they are donated by the charitable, and thus a contravention of the trust, and that as such institutions have no other funds it would be futile to alloAV judgments to be taken against them in such cases. But the opinions of the judges in these same cases almost invariably except cases where the agent or servant was incompetent and there Aras negligence in his selection; failing to take note that it would be as much a diversion. of the trust funds to pay damages for the tort of negligence in selection as for any other tort. If the rule exist, it must necessarily apply to all torts and in all cases. The only support for the argument that it does exist is found in the remarks of judges in certain rather old English cases, which were repudiated in later [585]*585cases, and never had a direct application to actions of tort against charitable corporations such as are now common. It is true that an action does not lie against a trustee under a will, or the like, as such, for his torts or those of his servants in the affairs or administration of a trust He has to be sued individually; but the reason is purely technical, and the courts allow the judgment against him individually for damages to* be paid out of the trust funds, if he was free from willful misconduct in the tort. No rule therefore that trust-funds may not be used to pay damages for torts in the administration of the trust exists even in the case of ordinary express trusts, let alone in the general trusts of charitable corporations. — Powers v. Mass. Homeopathic Hospital, 109 Fed. 294, 47 C. C. A. 122, 65 L. R. A. 372; Bruce v. Central Methodist Ep. Church, 147 Mich. 230, 110 N. W. 951, 10 L. R. A. (N. S.) 74, 11 Ann. Cas. 150; Hewett v. Woman’s Hospital Aid Ass’n, 73 N. H. 556, 64 Atl. 190, 7 L. R. A. (N. S.) 496. * * * These views were approved by the Court of Appeals of New York (although the decision was reversed on other grounds) in Kellogg v. Church Charity Foundation, 203 N.. Y. 191, 194, 96 N. E. 406, 38 L. R. A. (N. S.) 481, Ann. Cas. 1913A, 883.”
We are of the opinion that the doctrine of the absolute exemption of charitable corporations is very much weakened by the position taken by the courts in these later citations, and is practically repudiated by them, whatever general remarks the courts may have made in. regard thereto, when the same are submitted to a careful and logical consideration.
The case of Downes v. Harper Hospital, 101 Mich. 555, 60 N. W. 42, 25 L. R. A. 602, 45 Am. St. Rep. 427, has been frequently cited by other courts in support of this trust fund theory, and it- is difficult for one giving [586]*586this case a careful reading and noting the authorities relied upon in the opinion to reach any other conclusion than that in fact the case was decided upon that theory. As an illustration of this may he noted the case of Gable v. Sisters of St. Francis, 227 Pa. 254, 75 Atl. 1087, 136 Am. St. Rep. 879, where the court lays much stress upon t|he treatment of this theory in the Downes Case. Yet this doctrine is expressly repudiated by the Michigan Supreme Court in the recent case of Bruce v. Central Methodist Church, 147 Mich. 230, 110 N. W. 951, 10 L. R. A. (N. S.) 74, 11 Ann. Cas. 150, in a very able opinion, and in which it was attempted to show that the real theory of the Downes Case rested upon an implied assent. In the opinion it is said: “It is equally1 true that the proposition that trust funds cannot be used to compensate wrongs committed by the agent of the trustee is not a correct statement of the law. * * * The docrine that , the will of an individual shall exempt either persons or property from the operation of general laws is inconsistent with the fundamental idea of government. It permits the will of the subject to nullify the will of the people. Nor can I conceive any ground upon which a court can hold that effect can be given to that will when it relates to property devised or conveyed for the purpose of a charitable trust. Such a holding must rest upon the argument that the advantages reaped by the public from such trusts justify the exemption; that is, as applied to this case, the advantages to the public justify defendant’s exemption from liability for wrongs done to individuals. If this argument is sound — and its soundness may be questioned, for there are those who will deny that the advantages to the public justify the wrong to the individual — it should be addressed to the legislative, and not to the judicial, department of the government. It is our duty [587]*587as judges to apply the law. We have no authority to create exemptions or to declare immunity.”
Discussing the same doctrine, the Supreme Court of New Hampshire, in the case of Hewett v. Woman’s Hospital Ass’n, 73 N. H. 556, 64 Atl. 190, 7 L. R. A. (N. S.) 486, has this to say: “It would seem to be entirely unnecess'arry to discuss a proposition so barren of arguments in its favor. That a charitable institution has certain duties to perform towards those with whom it is associated, which it cannot violate with impunity, in the absence of some express exemption of a legislative character, is not debatable. The sanctity of its general trust fund or property does not make that result necessary or, on grounds of public policy, desirable. The liability of charitable corporations in actions of tort is frequently enforced” — citing authoritties.
In Kellogg v. Church Charity Foundation, 203 N. Y. 191, 96 N. E. 406, 38 L. R. A. (N. S.) 481, Ann. Cas. 1913A, 883, the Supreme Court of New York says: “It must now be regarded as settled that a charitable corporation is not exempt from liability for the tort against a stranger, because of the fact that it holds its property in trust to be applied to purposes of charity.”
And also in the case of Horden v. Salvation Army, 199 N. Y. 233, 92 N. E. 626, 32 L. R. A. (N. S.) 62, 139 Am. St. Rep. 889, that court, speaking of the same subject, said: “Certainly liability for negligence in the selection of servants may impair the integrity of the trust estate just the same as liability for the negligence of servants, though of course not so frequently.”
Concerning this theory, Mr. Labatt, in volume 7 (2d Ed.) of his work on Master and Servant, says: “This doctrine, however, has been repudiated in some of the cases. The difficulty with the impairment of the trust fund theory is that, to apply it consistently, it would [588]*588¡exempt charitable institutions from all liability for negligence whatsoever; whereas, even in cases upholding this theory, some exceptions are' made. It is generally assumed that such institutions would be responsible, for example, for negligence in the selection of their servants; but, if- nonliability is based on the doctrine that the trust fund must not be impaired, why should there be any distinction in this respect between negligence in the selection of servants and negligence of servants chosen with due care? In either case, if judgment is to be paid out of the trust fund, it is bound to be impaired. The same reasoning would apply to negligence in the care of the buildings, resulting in injury to a patient or to a third person, and negligence, say, of an ambulance driver, causing injury to a third person, and to negligence as to all of those duties which are cast upon masters by law, and which cannot be delegated.”
What we have here said, and the authorities which we have cited, we think, are all sufficient to show that the trust fund theory is no solid foundation upon which to rest, and is repudiated in the modern well-considered cases, and even in some of the states (as in the Downes Case, supra), where it is supposed to have once been applied.
In the case of Horden v. Salvation Army, the opinion written by Chief Justice Cullen cites and gives some brief review of the Massachusetts cases upon this subject. He points out that in the early case of McDonald v. Mass. General Hospital, supra, the plaintiff was a gratuitous patient, but a reading of the opinion in that case clearly demonstrates the conclusion was not affected by that fact. We think the brief review of the Massachusetts cases found in the Horden Case clearly demonstrates that their decisions cannot be harmon[589]*589ized upon the trust fund theory, and in the opinion it is stated: “Whether since this last decision Massachusetts is to- he placed in the class of states adhering to the doctrine of total immunity may well be doubted.”
See, also, recent case of Hospital, etc., v. Thompson (Va.) 81 S. E. 13, 51 L. R. A. (N. S.) 1025, where several authorities are reviewed.
(3) The second theory relied upon in some of the cases, that the rule of respondeat superior does not apply against such institution for the reason that the servant or agent in the exercise of his duties is not acting for the benefit or profit of the master, needs, we think, hut brief consideration.
The rule of respondeat superior ivas given application in the case of Mersey Docks v. Gibbs, supra, and the true principle concerning this rule was stated in the following quotation found in this case: “Upon the ■principle that qui facit per alium, facit per se, the master is responsible for the acts of his servant; and that per.son is undoubtedly liable who stood in the relation of master to the wrongdoers, he Avho had selected him as his servant from the knowledge or belief in his skill and care, and who could remove him for misconduct, and whose orders he was bound to receive and obey.”
And, also, it is clearly demonstrated that the rule ■of respondeat superior is not dependent upon whether the master makes profit by the discharge of the duties in the following quotation from the case of Gilbert v. Trinity House, 17 Q. B. D. 795: “The law is plain that whosoever undertakes the performance of, or is bound to perform, duties — whether they are duties imposed by reason of the possession of property, or by the assumption of an office, or however they may arise —is liable for injuries caused by his negligent discharge ■of those duties. It matters not whether he makes money [590]*590or a profit by means of discharging the duties, or whether it be a corporation or an individual who has undertaken to discharge them. It is also immaterial Avhether the person is guilty of negligence by himself or by his servant, if he elects to- perform the duties of his servant. If in the nature of things he is obliged to perform the duties by employing servants, he is responsible for their acts in the same Avay that he is responsible for his own.”
The case of Hearns v. Waterbury Hospital, supra, seems to rest largely upon the theory that the rule of respondeat superior does not apply. Many of the English cases are reviewed as Av.ell as others, but the opinion is far from convincing.
Speaking of this case, it was said by the writer of the opinion in Bruce v. Central Methodist Church: “I think one cannot carefully read the elaborate opinion in the Hearns Case and examine the authorities therein cited (see, particularly Foreman v. Mayor of Canterbury, L. R. 6 Q. B. 214; Gilbert v. Trinity House, L. R. 17 Q. B. Div. 795; Levingston v. Guardians, etc.,. 2 I. R. c. f. 202; and Mersey Docks v. Gibbs, supra) without reaching the conclusion that the doctrine of respondeat superior does apply, though the business is. not carried on for the purpose of profit. I conclude-from this reasoning that corporations administering a charitable trust, like all other corporations, are subject to the general laAVS of the land, and cannot therefore claim exemption from responsibility for the torts, of their agents, unless that claim is based on a contract with the person injured by such a tort, and that Downes v. Harper Hospital and other similar cases are-consistent with this rule. They rest upon the principle correctly stated in Powers. v. Mass Homeopathic-Hospital, supra, viz., that the beneficiary of such charit[591]*591able trust- enters into a contract whereby he assumes the risk of such torts. It is not surprising that years should have elapsed before the correct legal principle governing these cases was announced in Powers v. Mass. Homeopathic Hospital. The discovery of correct legal principles, like the discovery of scientific and social truths, requires time and patient investigation.”
The following quotation from Kellogg v. Church Charity Foundation, supra, is also directly in point and to the same effect: “In many of the cases much is made of the fact that such institutions derive no profit or benefit, on the question of whether such rule applies, or, indeed, whether they can be held liable for any torts. But that exemption from liability, does not arise from that fact is manifest from the undoubted liability of other similar institutions which derive no profit or benefit. — Rector, etc., of Church of Ascension v. Buckhart, 3 Hill [N. Y.] 193; Blaechinska v. Howard Mission, etc., 56 Hun, 322 [9 N. Y. Supp. 679]; Mulchey v. Meth. Rel. Society, 125 Mass. 487; Davis v. Central Congregational Society, 129 Mass. 367 [37 Am. Rep. 368]; Newcomb v. Boston Protective Department, 151 Mass. 215 [24 N. E. 39, 6 L. R. A. 778]; Chapin v. Holyoke 7. M. C. A., 165 Mass. 280 [42 N. E. 1130]. * * * The position of such corporation in respect of its torts would seem to be the same as that of an individual carrying on similar charitable work with donated funds or with funds of his own. I do not understand that if my servant, sent out by me on an errand of mercy or charity, negligently runs over one in the street, I am not liable for his act.”
We cite in this connection Cortland v. New York Zoological Society, 135 App.Div. 163, 120 N. Y.. Supp. 24, 29; Bruce v. Central Methodist Church, 147 Mich. 230, 110 N. W. 951, 954, 10 L. R. A. (N. S.) 74, 11 [592]*592Ann. Cas. 150; Glavin v. R. I. Hospital, 12 R. I. 411, 34 Am. Rep. 675; Winch v. Conservators of the Thames, L. R. 7 C. P. 458, 472; Mersey Docks v. Gibbs, supra; Labatt’s Master & Servant, vol. 7, p. 7692.
The question, however, we conclude, is foreclosed in this state from the language used in the opinion of Sou. Ry. v. Wildman, 119 Ala. 565, 24 South. 764, wherein it is said: "The words 'interest of,’ or 'prosecution of business,’ naturally would impress the average juror with the idea that the act was not done with the purpose or intent to promote the interest 'of, or in furtherance of the business of, the employer, and the employer cannot be held liable. Certainly such a rule would restrict the liability of the employer Avithin too narroAv a compass.”
The basis of the doctrine of respondeat superior in this state is to be found in the maxim, "Qui facit per alium, facit per se.” See, also, Hall Mch. Co. v. Haley Mfg. Co., 174 Ala. 197/56 South. 726; Cooper v. Slaughter, 175 Ala. 211, 217, 57 South. 477. We therefore conclude unhesitatingly that exemption from liability cannot be rested upon the theory that the rule of respond-eat superior has no application.
We are thus brought by the rule of exclusion to the last stated theory, that of "implied assent.” This is the theory upon which the more recent and best considered cases seem to rest. — Bruce v. Central Methodist Church, supra; Powers v. Mass. Homeopathic Hospital; Kellogg v. Church Charity Foundation; Hordern v. Salvation Army, 199 N. Y. 233, 92 N. E. 626, 32 L. R. A. (N. S.) 62, 139 Am. St. Rep. 889; Barsabo v. Salvation Army, supra.
In the case of Kellogg v. Church Charity Foundation, supra, it was said: "If, then, in order to find a ground, we again resort to classification of the cases that have [593]*593come into the courts, or that may arise, and separate torts of such servants against beneficiaries or patients of the charitable trust or institution, from torts against outsiders, a ground for such exemption may be perceived in respect of the former, but not of the latter. The law may imply an intention on the part of the donors of the charitable funds that such funds shall be used for the charitable purpose only, and then imply an acquiescence in this intention by all persons who accept the benefits of the charity, and in that way spell out a waiver by such persons of any responsibility of the institution for the negligence or torts of its servants. If the courts want to exempt such institutions, this may be a tenable, though some may think a rather ingenious or far-fetched ground on which to do it. But no such acquiescence or waiver can be attributed to an outsider.”
In a very recent case in New York, it is stated that immunity now rests upon two grounds by the decisions: First, upon that of implied waiver; and, second, upon grounds that the relation of master and servant does not exist between the hospital and the physicians and surgeons, and even, in some instances, nurses. See Schloendorff v. Society of N. Y. Hospital, 211 N. Y. 125, 105 N. E. 92, 52 L. E. A. (N. S.) 505.
Some of the cases applying this theory of the implied assent, seem to rest largely upon what was said in the opinion by Lowell, District Judge, in the case of Powers v. Mass. Homeopathic Hospital, supra. In that case, although the language may be said to be very broad, it should be noted that, although the patient in the hospital was what was termed a “paying patient,” yet the opinion shows that the sum paid was, in the opinion of the writer, “of insignificant proportion” to the cost of the services rendered. If this is true, then [594]*594it should be borne in mind that, while the patient ivas what was termed a “paying patient,” yet she did not pay or offer to pay reasonable compensation for the services rendered, and clearly that in proportion as the sum paid ivas insignificant for the services rendered, then it must follow just to that proportion the patient was not a “paying patient,” but in truth and in fact a charity patient. As the opinion seems to form a base or foundation for the conclusion of the court- in other cases, we think it important that these facts be made prominent and given emphasis. In the opinion it is said: “That a man is sometimes .deemed to assume a risk of negligence, so that he cannot sue for damages caused by the negligence, is familiar law: Such is the case at bar. * * One who accepts the benefit either of a public or a private charity enters into a relation which exempts his benefactor from liability for the negligence of his servants in administering the charity; at any rate, if the ^ benefactor has used due care in selecting those servants. To paraphrase the illustration put by the learned judge Jbefore whom this case was tried, it would be intolerable that a good Samaritan, who takes to his home a wounded stranger for surgical care, should be held personally liable for the negligence o>f his servant in caring for that stranger. Were the heart and means of that Samaritan so large that he was able, not only to provide for one wounded man, but to establish a hospital for the care of a thousand, it would be no less intolerable that he should be held personally liable for the negligence of his servant in caring for any one of those thousand wounded men. We cannot perceive that the position of the defendant differs from the case supposed. The persons whose money has established this hospital are good Samaritans, perhaps giving less of personal devotion than [595]*595he did, hut, by combining their liberality, thus enabled to deal with suffering on a larger scale. If, in their dealings with their property appropriated to charity, they create a nuisance by themselves or by their servants, if they dig pitfalls in their grounds and the like, there are strong reasons for holding them liable to outsiders, like auy other individual or corporation. The purity of their aims may not justify their torts; but, if a suffering man avails himself of their charity, he takes the risks of malpractice, if their charitable agents have been carefully selected.”
In the case of Bruce v. Central Methodist Church, it appears from the opinion that a charitable institution cannot claim exemption from responsibility, unless that claim is based on a contract with the person injured by such a tort. Speaking of the Downes Cape, and others of similar character, the opinion says: “They rest upon the principle correctly stated in Powers v. Mass. Homeopathic Hospital, supra, viz., that the beneficiary of such charitable trust enters into a contract whereby he assumes the risk of such torts. It is not surprising that years should have elapsed before the correct legal principle governing these cases was announced in Powers v. Mass. Homeopathic Hospital."
Speaking to this same subject, the Supreme Court of California, in Thomas v. German Gen. Benevolent Society, 141 Pac. 1186, has this to say: “A final contention of appellant is that it is in no way responsible, by reason of the fact that it is a charitable institution, and that an action against it such as this will not lie. Such was the doctrine of some of the earlier cases. We need not enter into an elaborate discussion of the question. All of the authorities pro and con have been elaborately collated and learnedly reviewed in Basabo v. Salvation Army [35 R. I. 22, 85 Atl. 120], 42 L. R. [596]*596A. (N. S.) 1144. With the conclusion, there reached we are in accord. That conclusion is that the true doctrine amounts to this: That where one accepts the benefit of a public or of a private charity he exempts by implied contract the benefactor from liability for the negligence of the servants in administering the charity, if the benefactor has used due care in the selection of those servants.”
The opinion in the Powers Case, supra, clearly shows that it proceeded upon the theory that one who accepts charity either wholly or partially, as it were, assumes the risk of negligence, and this we take it must be held to be the underlying principle of the decision.
(4, 5) If it be conceded (without deciding, as unnecsary at this time) that the principle is logical and well founded, we are of the opinion that it could not be given application in this case as presented by this record. The complaint alleges that the plaintiff agreed to pay a reasonable compensation; that is,, such sum as is reasonable to be paid for the services rendered. She has depended upon no charity, she sought none, but was to pay a reasonable price for what she received. Had she been a dependent upon another’s bounty, either to a great or small degree, there might be some plausibility in the argument that it would not lie in her mouth to say that the institution should be held to strict accountability for the negligent acts of its servants, in administering the charity which she herself has sought. We are unable to conceive upon what principle the theory of “implied assent” could be applied to one who pays full price and without regard to the nature of the institution from which she receives her service. There can be no valid reason why such a patient, dealing as she does at arm’s length with the hospital, should not stand in as favorable position as the [597]*597stranger, and yet many of the cases grant relief to the latter and deny it to the former.
The principle, if held to be sound, must rest upon the fact that it is the giving and receiving of charity that creates the exemption, and not the nature of the institution administering it.
We make it clear we pretermit the question as to liability for injury to one Avho in fact accepts charity in an institution of this character as we have not that case before us. It has been questioned that the implied, assent theory would be applicable to even such a case, in the dissenting opinion of Justice Fraser in Lindler v. Columbia Hospital, 98 S. C. 25, 81 S. E. 512, wherein, speaking to that question and of some of the cases so holding, he says: “We are told, in effect, that a patient entirely unskilled in legal principles, his body racked with pain, his mind distorted with fever, is held to know, by intuition, the principle of laiv that the courts after years of travail have at last produced. We cannot accept a rule based upon after-discovered reasons. We confess that it is a new doctrine to us that a court will assume an implied contract to relieve against liability for future negligence.”
By quoting the above we do not indicate any approval thereof nor otherwise, but merely make note of the same to show that even in such instances the theory has been questioned. We pass that question by until it arises. “Sufficient unto the day is the evil thereof.”
We are aware of the fact that the opinion in the case of Duncan v. Nebraska Samatarium, 92 Neb. 162, 137 N. W. 1120, 41 L. R. A. (N. S.) 973, Ann. Cas. 1913E. 1127, would seem to indicate an extension of the principle of the “implied assent theory” to those who were not in fact in any sense recipients of charity, but who paid full compensation for the services rendered. The [598]*598opinion says, hoAvever, that full compensation was not paid in that case, but a reduced rate Avas paid and accepted. If this Avere the case, it may be that the decision might be brought Avithin the Powers Case, supra, Avhere in fact charity in part was received by the patient, and, if so, some of the language used may be declared dictum; but whether so or not Ave are unable to see the force of the reasoning and cannot follow-it. Speaking of cases of this character, Justice Fraser, in the above opinion, says: “Some of the cases hold that 'the pay patients, Avhen they enter a hospital Avitli a charitable foundation, are really charity patients, and the Aveekly sums they are required to pay are not pay-* 'ments at all, but contributions to- the charity funds. This is brilliant, but is not convincing. We think the first duty of every man and the first call upon every fund is to repair the evil of its oavii doing, and then the remaining fund or remaining strength may be devoted to charity.”
It is a principle of Iuav, as Avell as morals, that men must be just before they are generous.- It is a well-known fact, of AAdiich courts may take judicial notice, that many of the' most noted institutions of this country for the treatment of the sick Avere established by endoAAunents, are not operated for profit, accept charity patients, and are such as come AA-ithin the definition of charitable institutions laid down in the books. We are unable to see upon which line of reasoning one who is Avilling to pay, and does pay, full price for services to be rendered, should be held to have exempted the institution from all liability merely because it is not operated for profit.
With that the patient is not concerned, nor indeed, is he in any mood or condition to inquire. He is seeking restoration to- health. He expects to pay the full [599]*599price/ and can it be said with any show of reason that, because forsooth the money which he pays is not to be paid out as dividends or profits, he lays himself liable to injury by the negligence of those in whose charge he places, himself, or even it may be — and the doctrine followed to its ultimate conclusion would logically so lead — to the willful or wanton wrongful conduct of the servants in charge of the institution. We think not, clearly. The conclusion we have reached is supported in principle by the case of Glavin v. R. I. Hospital, 12 R. I. 411, 34 Am. Rep. 675. In that case negligence relied upon was that of an interne in the hospital. The opinion seems to make some distinction as to .liability of the hospital for .the negligence of physicians and surgeons attendant on it, upon the idea that they are in the exercise of skill and cannot, in a strict sense, be considered servants or agents of the hospital, and consequently are not subject to be controlled by the hospital. See, also, Basado v. Salvation Army, supra*; 5 Ruling Case Law, § 121. With this distinction, however, we are not here concerned, as the negligence relied upon was that of a nurse, and in regard to a matter which it does not appear would require any peculiar skill or knowledge, and indeed no such defense is here attempted to be set up in any of the pleadings. We therefore find no necessity for a discussion of any such distinction. In the Glavin, Case it was said : “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 interns, 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 [600]*600argument 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 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 is so* supreme that the latter must be sacrificed to it. Whether it shall be or not is not a question for the court, but for the Legislature.”
Other cases supporting in principle the conclusion we here reach are: McInerny v. St. Luke’s Hospital, 122 Minn. 10, 141 N. W. 837, 46 L. R. A. (N. S.) 548; Armendarez v. Hotel Dieu (Tex. Civ. App.) 145 S. W. 1030; Donaldson v. General Public Hospital, 30 N. B. 279; Hewett v. Woman’s Hospital, 73 N. H. 556, 64 Atl. 190, 7 L. R. A. (N. S.) 496. In this latter case it is said: “In conducting the affairs of a hospital, its officers and agents are as liable to commit acts of negligence as are the officers and agents of a railroad or other business corporation. Men in general are not uniformly careful. Experience shows that negligence — the failure to exercise ordinary care — is to- be expected when men engage in industrial pursuits. It may, not inappropriately, be said to be necessarily incidental in the accomplishment of most practical results through the agency of man. The donors of the defendant’s property for hospital purposes were not ignorant of this fact, and are presumed to have given the trust property knowing that it might be required for the liquidation of claims in tort, as well as for claims in contract, incurred in carrying out the purposes of the corporation. Indeed, its conceded authority to contract for the em[601]*601ployment of nurses and other necessary agents would seem to include power to respond in damages for all breaches of such contracts, one essential or incidental element of which is its duty to * * * pay the stipulated compensation.”
We have cited Amendares v. Hotel Dieu, supra, as some of the reasoning appears to support the principle of this opinion, though we are aware that in the recent case of St. Paul's Sanatorium v: Williamson, (Tex. Civ. App.), 164 S. W. 36, the rule is stated to be in that state, as to the question directly here at issue, in accord with contention of the appellee.
As previously stated in this opinion, we recognize that the weight of authority in this country is opposed to the conclusion we have here reached. This within itself is, of course, of much force, and has led us to a very careful review of the cases, and a consideration of the principles upon which they may be said to rest. But it sometimes happens that in order to reach a safe harbor one must row against the current. We have here endeavored to show that the theory upon which those cases are founded does not measure with the rule of reason or sound ldgic, as we view it. While many of them reach the same end, yet they do so by entirely divergent routes and upon theories entirely inconsistent one with the other. For these courts we have the highest respect, but we cannot follow in their wake.
In the Powers Case, supra, the writer of the opinion said: “Though we feel constrained to differ from the reasoning followed by some other courts in reaching the same conclusion, we are not unmindful that the identity of conclusion reached, though by different roads, is the strong proof of its correctness. Doubtless a weight of authority is more overwhelming if it is iden[602]*602tical in reasoning as well as in result, but identity of result is in itself no mean argument for its justice.”
Generally speaking, the language of the writer may be accepted as correct; but in this particular instance, upon this interesting subject the different views are so divergent and so inconsistent that in our minds the weight of authority has lost its force, and we are rather impressed by a reading of the decisions that the courts holding to the majority view have been rather straining at legal principles in order to reach what they seem to think a desirable and just result. With the result the court cannot feel concerned. It is not for this court to create exemptions or declare immunity from liability in a case of this character as shown by this record, and, if considered to be so violently opposed to the public good, it is a matter that may be addressed to the legislative department. Some of the authorities express a doubt that the advantages to the public would justify a wrong to an individual, thus placing the institution above the law, as it were. But, however this may be viewed, we think the following observation made by Justice Potter in the Glavin Case, supra, is most pertinent here: “Is it not better and safer for the court to follow out the analogies of the law, and then, if the Legislature is of opinion that public policy demands a limitation of this liability, it is in its power to interfere and grant an entire or a partial exemption.” It is ours to declare the law as we see it, and, being-unable to find a sound legal principle upon which exemption from liability may rest in a case as disclosed by this record, we conclude that pleas 2 and 3, merely in this respect setting up due care in selection and retention in service of the nurse, do not shown a defense to the cause of action, and the demurrer thereto- should have been sustained. The judgment of the court below [603]*603is reversed, and the cause is remanded to be proceeded with in accordance with the views expressed in this opinion.
Reversed and remanded.
Anderson, C. J., and McClellan, Sayre, Somerville, and Thomas, JJ., concur. Mayeield, J., dissents.