628
THE GREEN BAG
extremely nervous or irritable person would be come angry because of his being inconvenienced on account of the crowded condition of the car; but it is not in accordance with the usual and ordinary course of events to anticipate that a seated passenger would so far lose control of him self on account of having a standing passenger crowded against him that he would eject the standing passenger from the car with such force as to throw him over the head of one who was standing upon the step below the party so ejected." CARRIERS. (Who are Passengers.) Mass. — Fitzmaurice v. New York, New Haven, and Hart ford Railroad Company, 78 N. E. 418, is an enun ciation of the principle that one whose presence in the conveyance of a carrier is brought about by fraud, was not a passenger. Plaintiff, while riding on a train of the defendant, was injured in a collision, and in an action for the injuries it appeared that she had obtained her ticket by presenting to the plaintiff's ticket agent a forged certificate purporting to be signed by her father, to the effect that she was under eighteen years of age and a pupil in a certain art school, and agreeing that she would not use the ticket except in traveling to and from the school, and by pre senting a forged certificate purporting to be signed by the principal of the school, certifying that plaintiff was a pupil, and it was shown that by such fraudulent conduct plaintiff had obtained a ticket at reduced rate. Rev. Laws, c. in, § 228, authorizes a railroad to make contracts for the conveyance of passengers at such reduced rates as may be agreed on by the parties, and the court decides that owing to the fraud practiced by plaintiff she was not a passenger, and this notwithstanding that defendant's conductors had accepted the coupons of plaintiff's tickets. The court cites Way v. Chicago, Rock Island & Pac. Ry., 64 Iowa 48, 19 N. W. 828, 52 Am. Rep. 431, and Toledo Wabash & Western R. Co. v. Beggs, 85 Ill. 80, 28 Am. Rep. 613, where there was a similar acceptance of coupons, and Condran v. Chicago, Milwaukee & St. Paul Ry., 67 Fed. 522, 14 C. C. A. 506, 28 L. R. A. 749; Toledo, Wabash & Western Ry. v. Brooks, 81 Ill. 245; Chicago, Burlington & Quincy R. R. v. Mehlsack, 131 Ill. 61, 22 N. E. 812, 19 Am. St. Rep. 17. CHARITIES. (Charitable Hospitals — Liabili ties for Injuries to Servants.) Hew Hampshire. — Hewett v. The Woman's Hospital Aid Association, 64 Atlantic Reporter, 190, decides in favor of plaintiff the question whether a hospital conducted as a charity is liable for the negligence of its manager in failing to notify a nurse of the con
tagious nature of a case assigned to her. The facts showed that plaintiff was a pupil nurse in the hospital under a contract whereby she was to be trained as a nurse, receiving $10.00 per week as compensation, that the manager of the hospital put her in charge of a patient suffering with diphtheria, which fact was known to the manager, that plaintiff was not informed by any one as to the nature of the disease, and developed it shortly after taking charge of the case. Defendant was a corporation formed under the general incorpora tion law of the state, which authorizes persons to incorporate for the establishment and mainte nance of hospitals, and which provides that the corporation, its officers and stockholders shall have all the rights and powers and be subject to all the duties and liabilities of other similar cor porations, except so far as limited by the statute. In determining the question, the court calls atten tion to the fact that defendant was not incorpo rated for the purpose of carrying out the provisions of an express trust in reference to property or money donated under a limited deed of trust, but that it held its property under its charter for the general purposes of a hospital, and it is held that notwithstanding that the corporation had no capital stock and made no division of profits, but that all its property was devoted to charitable purposes, it was liable for the negligence of the manager. In support of the liability of charitable corporations in actions of tort, the opinion cites: Stewart v. Harvard College, 12 Allen (Mass.) 58; Davis v. Society, 129 Mass. 367, 37 Am. Rep. 368; Bishop v. Trustees i E. & E. 697; Gilbert ». Trinity House, 17 Q. B. Div. 795, and states that if the language of some courts is broad enough to deny the liability of charitable corporations in all actions of tort, Perry v. House of Refuge, 63 Md. 20, 52 Am. Rep. 495; Downes v. Hospital, 101 Mich. 555, 60 N. W. 42, 25 L. R. A. 602, 45 Am. St. Rep. 427, "it cannot be regarded as a discriminating statement of the law." In reply to another contention, the court is of the opinion that though plaintiff was an apprentice learning a trade, she was nevertheless a servant, and that the fact that at the time she was employed she represented herself to be older than she was did not relieve the corporation of its ordinary duty to her as a servant. The question of a public charitable corporation's liability for torts is a vexed one and there are various holdings. By the most reasonable and perhaps the most general holding, such a charitable corporation must respond in damages to third persons for its failure to exercise due care in the selection of its servants, though it is not liable for the torts of these servants. See Huffcut on
