until Thursday; and, without setting forth the evidence in detail, let it suffice to say that it tends to show that plaintiff's eyes at the time he entered the hospital were in such condition as to be beyond medical aid, that the hospital and its nurses were justified in following the directions of Dr. Mayo, and that plaintiff's blindness is not due to any negligence on the part of the hospital or any of its nurses, but is wholly due to the nature of the disease from which he was suffering. Over the objection of plaintiff, the defendant was permitted to introduce parol testimony of the president of the association and other Sisters of the Holy Cross hospital, tending to show that the defendant is a charitable institution, and that all the income and revenue derived from the association is disbursed in support of the hospital and in caring for its inmates, and that no part thereof is disbursed or paid to the members of the association by way of dividends or otherwise; nor is any salary or compensation of any kind paid to the members of the corporation or to the Sisters in charge of or connected with the hospital; nor is any member of the corporation permitted to own any property as individuals, and that all property owned, possessed or acquired by them becomes the property of the association. The case was tried before a court and jury. At the conclusion of all the evidence, the court, at the request of the defendant, took the case from the jury, and directed a verdict in favor of the defendant. From the judgment entered upon the verdict, the plaintiff appeals.

2. The appellant contends: (1) That the object and purpose of the association are to be determined alone from its articles of incorporation, and that the court erred in admitting in evidence the parol testimony referred to; that the articles themselves show the defendant to be a corporation for pecuniary profit and noncharitable, and the defendant is liable for the negligent acts of its nurses done in the course of their employment in caring for and treating the plaintiff. And (2) though the defendant be a charitable institution, it having received the plaintiff under an express contract of hire, and having thereunder assumed and undertaken to treat

plaintiff for pay, it still must be held liable for such negligence of its nurses. On the contrary, it is asserted by the respondent that the articles do not disclose whether the character of the defendant is charitable or noncharitable, and that therefore parol evidence was admissible to show its real character, and, being a charitable institution, the defendant can only be made liable for its negligence in selecting and retaining an incompetent or negligent nurse, of which there is no evidence; that no contract was entered into between plaintiff and the defendant; that the plaintiff was not received under any such contract of hire, but that he, being an indigent person, on the charge of the county, was placed in the hospital for care and treatment by the county, for which the defendant was paid by the county; that plaintiff's condition was wholly due to the disease so far progressed at the time of his admission to the hospital as to render all aid unavailing; and that his condition is not due to any fault or negligence on the part of the defendant or its nurses.

Assuming, as is the great weight of authority, that charitable institutions or corporations are not liable for the negligent acts of its nurses or other employees, if it has not been guilty of negligence in selecting them (Powers v. Mass. Homeopathic Hospital, 109 Fed. 294, 47 C. C. A. 122, 65 L. R. A. 372, and Brown v. La Societe Francaise, 138 Cal. 475, 71 Pac. 516, where the matter is discussed and reference made to the cases), it is important to ascertain the character of the defendant, and by what kind of evidence its character may be shown. The law under which the defendant was organized required that the objects of the corporation should be fully set out in the articles of incorporation. This was done by the defendant. Had it not stated the purpose for which the statute authorizes a corporation to be formed, the defendant would not be legally incorporated. The law further required that, if the corporation is organized for pecuniary profit, it must set forth in its articles the amount of the capital stock and the number of shares into which the same is to be divided, with the amount of each share, which shall not exceed $100. This the defendant did by stating

its capital stock to be $10,000, divided into 10,000 shares of $1 each. The principal features of charitable corporations are "that they have no capital stock, and that their members can derive no profit from them." (6 Cyc. 974; McDonald v. Mass. Gen. Hospital, 120 Mass. 432, 21 Am. Rep. 529.)

The law also required the term of existence of the corporation to be stated, which, if organized for pecuniary profit, shall not exceed 50 years. The articles as filed by the defendant gave it all the rights, powers, and privileges given to corporations by common law, to sue and be sued, to hold, acquire, purchase, and sell such personal and real property as may be necessary to carry out the objects of the corporation, and to borrow money, to mortgage and incumber the real and personal property of the corporation to secure the same. Indeed, the corporation, by its articles, and by the law under which it was organized, is given all the rights, powers, and privileges that are usually, or that can be, given to a business corporation. Thereunder dividends could be declared and paid to the stockholders the same as any business corporation might do, and the members permitted to derive whatever profit there might be in the business, the same as members of any business corporation. The articles are in harmony with those of a business corporation, and wholly inconsistent with those of a charitable organization. The fact that the corporation was formed for the purpose of maintaining and conducting hospitals for the treatment of the sick, wounded, and injured persons, and for the care of the infirm, is not controlling, for such things may be done for profit as well as for charity. The articles upon their face purport to create an organization for pecuniary profit. It has been quite generally held that the nature of the corporation must be determined from its articles of association, and that its character cannot be changed or modified by parol evidence; that the object and purpose for which a corporation is organized must be gathered alone from the written instrument, and it cannot be aided or varied or contradicted by testimony or averments aliunde the instrument itself.

(Craig v. Benedictine Sisters Hosp. Ass'n, 88 Minn. 535, 93 N. W. 669; Gould v. Fuller, 79 Minn. 414, 82 N. W. 673; Peo. ex rel. Bd. Charities v. N. Y. Soc. P. C. C., 161 N. Y. 233, 55 N. E. 1063; Atty. Gen v. Lorman, 59 Mich. 157, 26 N. W. 311, 60 Am. Rep. 287; Detroit Driving Club v. Fitzgerald, 109 Mich. 670, 67 N. W. 899; City of Kalamazoo v. Power Co., 124 Mich. 74, 82 N. W. 811; State v. New Orleans Water Supply Co. [La.], 36 South. 117; 1 Clark & Marsh. on Corporations, section 36h; 3 Ency. Ev: p. 615.)

In the first case cited, where the corporation upon the face of its articles appeared to be a mere business corporation for pecuniary profit, evidence aliunde the articles, for the purpose of showing that the corporation was in fact a charitable association, was held incompetent and inadmissible. To some extent at least, the same doctrine has been announced by this court in the case of North Point C. I. Co. v. Utah & S. L. C. Co., 16 Utah 246, 52 Pac. 168, 40 L. R. A. 851, 57 Am. St. Rep. 607. We are not concerned with the question whether a stranger to a corporation may show the real character of the association by evidence aliunde the articles. The only question in this respect before us and decided by us is that a corporation itself may not do so. We are therefore of the opinion that the court erred in admitting the testimony referred to. Looking at the articles themselves, we are also of the opinion that the purpose of the association, as therein disclosed, is for pecuniary profit, and not charity.

This then brings us to the question as to the sufficiency of the evidence to show a liability against the defendant, a corporation organized for profit, to require a submission of the case to the jury. To such a corporation the doctrine of respondeat superior fully applies, and the corporation is made liable for the negligent acts of its employees done in the discharge of its business and within the scope of the servants' employment. This principle of law, of course, is elementary, and readily conceded by counsel for respondent. It, however, in effect is urged that, notwithstanding the general

character of the defendant as to its being a corporation for gain, nevertheless the actual relation existing between it and the plaintiff was merely charitable, and hence the principle of law should be applied to the case as is applied to charitable institutions, only making it liable for its negligence in the selection of the nurse. This position is taken from the assumed facts that the plaintiff was an indigent person, a charge upon the county, and as such was placed by it in the hospital for treatment for which payment was made by the county, the plaintiff paying nothing, and not agreeing to pay anything; and, as stated by counsel for the respondent in his brief: "There was no contract between plaintiff and the defendant. The contract for his admission to the hospital was between the county, whose charge he was, and the defendant. Under the contract between the county and the defendant, plaintiff, having been sent there, had a right to be in the hospital and to be treated as a patient." If one, through mere kindness or charity, admits a sick or wounded. person to his house to administer aid and comfort to him, and for such purpose selects a physician or servant to attend him, undoubtedly he ought not be held, nor does the law hold him, liable for the negligence of the physician or servant, unless, as the authorities say, he has been guilty of negligence in the selection of the physician or servant. And, had the defendant so received the plaintiff, and not otherwise, it could not be held liable in any greater degree. But, if one receives another into his house for the purpose of treating him, and assumes and undertakes to do so, though it may be done gratuitously, there is some force to the position that he should be held liable for the negligence of his servant in the discharge of the duties undertaken and assumed by him, upon the principle of law that, if a person actually undertakes and enters upon the execution of a particular work, it is his duty to use reasonable care in the manner of executing it, whether done by himself or through his servants. Applying the principle, there is force to the argument that the defendant, having received the plaintiff into its hospital, and having assumed and undertaken to treat