The opinion
Mr. Justice Gage,
also dissenting.
I concur with Mr. Justice Fraser and Mr. Justice Watts.
Respondent■ concedes that the defendant is an eleemosynary institution, whatever that may'' mean; but denies that it is a charity, as that word has been best expounded.
There is no doubt about the rule laid down generally by the Courts, that a charity is not liable for a tort.
That rule was promulgated when charities were rare and were small and were real and it sprang out of the tenderness of the Judges for those who devoted their unrequited energies to' the service of humanity; for them, the Judges.
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thought, the hard rules of legal liability ought to* be relaxed. And for a real charity, that ought to be the rule everywhere". But things have changed; today there are hospitals all over the State, some of them owned by a single individual, some O'f them owned by an aggregation of individuals. Those who* have eyes and ears know this to* be true.
It is safe to* assume that not one of them has a capital stock, and not one of them pays a dividend as such.
If an individual doctor working in his* own hospital should injure a patient like the plaintiff was injured he would be liable to* suit.
In the case at bar the hospital may have started, and been for years managed, much like a genuine charity.
The elect women of Columbia built it, and equipped it, and started it -going for pure love. They then turned it over to a number of doctors to* manage according to* their own notions, and “because it had become burdensome to them.” At the time of this injury the hospital was controlled by twenty-five doctors of Columbia; its income was about $45,000, of which Columbia contributed $3,600; it had generally fifty patients, and could hold no* more; it charged well nigh, all who- came, .-except there were some free beds.
There is nothing about the entire business as managed to* differentiate it from the hospital of -those gentlemen who undertake to* manage a hospital single handed, except the ladies donated this hospital to* the doctors and the* city of Columbia appropriates $3,000 a year to* keep* it going.
The same rule of liability ought therefore to* apply to all persons like circumstanced, and that is the rule of liability for wrong conduct, whether done by one’s self or through one’s agent.
It may be the plaintiff shall not be able* to collect her judgment; but “we have no* right to proceed on the theory that if, at the end of the litigation, plaintiff establishes her right to damages, the judgment would not be paid.”
Hopkins
v.
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Clemson Agricultural College of South Carolina, 221
U. S. 648, 31 Sup. Ct. 658, 55 L. Ed. 890 , 35 L. R. A. (N. S.) 243.
I see no' reason to' change my opinion. The brick and mortar of the trust may not be liable to> pay the judgment; but the funds are.