Opinion of the Court.

duty by a servant whom it has selected with due

care.

The plaintiff in Powers v. Mass. Homeopathic Hospital, 109 Fed. Rep., 294, was a pay patient and was injured by the negligence of a nurse in placing a rubber bag full of hot water against her side, burning her. Her counsel contended as counsel for plaintiff in this case contend, that she being a pay patient, the hospital was liable because she was not the recipient of its charity, but the court denied the relief and say: "In our opinion a paying patient in the defendant hospital, as well as a non-paying patient seeks and receives the services of a public charity."

Liability to a pay patient was denied in Downes v. Harper Hospital, 101 Mich., 555, and one of the grounds on which the court put its decision was that decedent having accepted the benefit of the charity did so on the understanding that the fund could not be diverted by the torts of the managers of the fund or their employe. The court say: "The fact that patients who are able to pay are required to do so does not deprive the defendant of its eleemosynary character nor permit a recovery on account of the existence of the contract relations."

Other cases in which the same conclusion was arrived at, some of the courts adopting a somewhat different line of reasoning, are: Farrigan v. Pevear, 193 Mass., 147; Fire Ins. Patrol v. Boyd, 120 Pa. St., 624; Union Pac. Ry. Co. v. Artist, 60 Fed. Rep., 365.

Judge Stewart in his excellent work on legal medicine, Section 96, after an examination of the

Opinion of the Court.

cases on the subject says: "The doctrine of the Massachusetts cases may be said to be the law followed by other states and is the proper legal view to take of this question, the reasoning of the court being so sound as to seem irrefutable."

Counsel for plaintiff suggests that some of the American cases are predicated on the English case Holliday v. Vestry of St. Leonard's, 11 C. B., (N. S.), 192, and some other cases which he insists have been impliedly repudiated by the later case of Mersey Docks v. Gibbs, L. R., 1 H. L., 93, which enforced the doctrine of respondeat superior.

We think this contention is not sound because the company in the latter case was a trading company and not a public charity in the sense that defendant here and similar corporations are. Mr. Justice Blackburn who gave opinions in the cases referred to, said in Mersey Docks v. Cameron, 11 H. L., 465: "Whatever may be the law as to exemption of property occupied for charitable purposes it is clear that the docks in question can come within no such exemption.'

But even if it appears that the greater weight of authority outside of Ohio falls against his view, counsel for plaintiff insists that such authority is not in harmony with the established doctrine in this state, and refers to the cases of Smith v. Cincinnati, 4 Ohio, 500-514; Dayton v. Pease, 4 Ohio St., 80; Dunn v. Agricultural Society, 46 Ohio St., 96; Toledo v. Cone, 41 Ohio St., 149; Murphy, Admr., v. Holbrook, 20 Ohio St., 137. We do not think these cases sustain plaintiff's view of the question made by this answer. Smith v. Cincinnati, Dayton v. Pease, and Toledo v. Cone, were cases in which

Opinion of the Court.

the injury was done by employes of the cities, in the performance of public works, undertaken for the benefit of the cities and in the exercise of powers and duties granted and imposed on them as municipal corporations.

Of course under familiar rules they were liable for the wrongful acts of their servants.

In Dunn v. Agricultural Society the fair grounds were kept and the fair conducted not as a thing free to the public; Judge Williams in declaring the judgment of the court says as to the rule of exemption from liability that "it has no application to corporations called into being by the voluntary action of the individuals forming them for their own advantage, convenience or pleasure.”

In Murphy v. Holbrook the receivers of a railroad company were held liable for injuries to plaintiff's intestate, and it was held to be "no defense in such action that the receiver was a public officer or that he was an agent or trustee."

But the receivers of a railroad company or other corporation hold the property in trust for the benefit of the company and its creditors, and when operated by the receivers under order of court, the object is to preserve the property and if possible earn something for the benefit of the company and its creditors.

It is not an enterprise to serve and benefit the public solely. There is disclosed in some of the cases and in the argument for defendant a singular disposition to question the fundamental soundness of the doctrine of respondeat superior. We are not disposed to lend support to such tendency.

Opinion of the Court.

Experience has shown that the ends of justice are best secured by holding the master responsible for injuries caused by the wrongful acts of his servant done in the prosecution of his private ends and for his benefit.

Doubtless the rule will be extended to meet the requirements of manifold new conditions brought about by growth and advance. Courts are constantly confronted with the necessity of extending established principles to new conditions. But in this case it is sought to extend the rule to masters different from others and who do not come within its reason, and to hold a public charity involving no private profit responsible for the negligence of servants employed solely for a public use and a public benefit. We think such extension is not justified. Public policy should and does encourage enterprises with the aims and purposes of defendant and requires that they should be exempted from the operation of the rule.

We think there is no error in the record and the judgments of the courts below are affirmed.

Judgment affirmed.

SPEAR, C. J., DAVIS, SHAUCK, PRICE and DONAHUE, JJ., concur.

Statement of the Case.

BOYER ET AL. V. THE M. D. KNOWLTON COMPANY

ET AL.

Contracts of conditional sale of personal property-Though made in another state-Must be subject to requirements of Section 4155-2, Revised Statutes-Rule of comity between states-Rights of vendor, mortgagee and intervening parties—In case of failure to renew chattel mortgage-Effect of mortgagee holding possession under neglect of renewal-Law of chattel mortgages. 1. Written contracts of conditional sale of personal property situate in Ohio, although made in another state, must be made and verified as provided in Section 4155-2, Revised Statutes, in order to preserve the title in the vendor, as against subsequent purchasers and mortgagees in good faith and creditors, even if such contracts are in accordance with the law of the state where entered into. The rule of comity between states does not supersede compliance with said section.

2. One who obtains a lien by chattel mortgage on personal property situate in this state, and files the same in the proper office as required by Section 4151, Revised Statutes, but who neglects to renew the same as required by Section 4155, Revised Statutes, may take possession of the mortgaged property, after the time for such renewal has expired, where the terms of the instrument authorize the taking of possession, on the breach of its conditions, or for the better security of the mortgage claim; and taking possession before other creditors acquired a valid lien gives the mortgagee a prior claim on the property or its proceeds as against such other creditors.

(No. 11996-Decided November 21, 1911.)

ERROR to the Circuit Court of Miami county.

On the 28th day of July, 1905, John L. Boyer and the other plaintiffs in error became sureties. for William Howland, a party defendant, upon a promissory note for $1,000 payable on demand to the Piqua Savings Bank.