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directors, waived the filing of an account of such loss. To this finding the defendant excepted.

As bearing upon the question of the legality of the votes of the directors at the meetings of November 16, and December 8, 1904, the following facts appeared as to the election of directors at the annual meeting held December 31, 1903: "The secretary's records show that this meeting was adjourned without the election of officers to Thursday, December 31, 1903, on which day and date the officers of the company for the ensuing year were chosen. The defendants claimed, however, that the record as to the adjournment was a mistake, and that the adjournment was to Friday, January 1, 1904, that the officers elected on the previous day were not properly chosen, and that their acts did not bind the company. From oral testimony introduced by the defendants the following facts appeared as to the adjournment: At the time of adjournment most of the members were standing and talking preparatory to leaving the room, and there was noise and confusion. A motion to adjourn until Friday, January 1, 1904, was made, put, and carried, but the vote was not declared. As soon as the motion was carried somebody suggested that the meeting should be held before the new year, and the president waved his hand and said: "Call it Thursday." The secretary understood that the meeting was adjourned to Thursday, and so recorded it. Some of the members understood that the adjournment was to Thursday, and others that it was to Friday. At the adjourned meeting on Thursday, a board of seven directors was elected; five of them being old members and two being new members. The directors thus elected acted as officers of the company, and no protest was ever made to them by any policy holder that they were acting without right. If the plaintiff is entitled to recover on the foregoing facts, he is to have judgment for $950, or for such lesser amount as the court may determine. Leach, Stevens & Couch, for plaintiff. Martin & Howe, for defendant.

BINGHAM, J. The by-laws are not a part of the policy contract. The plaintiff in his application agreed to be bound by and bylaws annexed to his policy. No by-laws were annexed to or printed upon the policy. The policy that was issued was of the New Hampshire standard form. It contained a clause stating that if "any special provisions or stipulations not inserted [in that form of policy]

require mention in effecting insurance, such provisions or stipulations shall be legibly written or printed, and permanently and securely attached to [the] pol

lcy, and signed separately by the company or agent." The policy therefore is not only the best evidence, but under the above stipula

tion is the only evidence, of the insurance contract, and the by-laws cannot be used to contradict, vary, or enlarge its terms. Gerrish v. Insurance Co., 55 N. H. 355, 358.

A notice under section 6, c. 170, Pub. St. 1901, is sufficient if it is in writing and informs the insurer of a loss or damage by fire under the policy, without more particularly specifying the property lost or damaged. Rix v. Insurance Co., 20 N. H. 198, 204. And it would seem that the lists of personal property, which were furnished to the defendants at their respect, were sufficient notice under the statute of a loss under the policy. But, if this is not so, the trial justice was warranted in finding that the defendants waived their right to object that the notice of the loss of the buildings was not in writing, for they knew of the destruction of the buildings before the expiration of 30 days from the time of the fire, and within that time entered upon an adjustment of the loss and paid to the plaintiff $250 on account thereof. Perry v. Insurance Co., 67 N. H. 291, 296, 33 Atl. 731, 68 Am. St. Rep. 668; Westlake v. Insurance Co., 14 Barb. (N. Y.) 206, 207; 2 May Ins. § 464.

The sworn statement of proof of loss provided for in the standard form of policy cannot be regarded as a condition precedent to the insured's rights to sue upon the contract. Chapter 170 of the Public Statutes of 1901 is by law, and in the instance was by express stipulation, made a part of the contract. By section 7 of that chapter, the company is required to adjust a loss within 15 days of the receipt of the notice called for by section 6, and by section 9 the insured is given a right to commence an action upon the contract if the company neglects to adjust a loss within 15 days after receiving notice of it. If the proof of loss were a condition precedent to the insured's right to sue upon the contract, it would be in conflict with sections 7 and 9, and therefore void under section 18. Franklin v. Insurance Co., 70 N. H. 251, 47 Atl. 91.

If

The directors who participated in the meetings of November 16th and December 8th were de facto, if not de jure, officers. They entered into office under color of an election, and during their term of office performed the duties of directors without objection. their elections were irregular, they were void. able only, not void, and their acts, while in the possession of their offices, were the acts of the defendants and binding upon them. Hughes v. Parker, 20 N. H. 58, 72; Nashua Insurance Co. v. Moore, 55 N. H. 48, 54; Despatch Line v. Bellamy Co., 12 N. H. 205, 222, 37 Am. Dec. 203. Therefore the votes passed at the meetings of November 16, and December 8, 1904, are legal votes of the company.

As the by-laws are not a part of the policy contract, the other questions raised in relation to them are not considered. The plaintiff is entitled to judgment for $950.

Exceptions overruled. All concurred.

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1. BILLS AND NOTES-CHECKS - CONSIDERATION.

A check, given by a third person to discharge a note secured by a mortgage which the holder was attempting to enforce by threatening to take the chattels mortgaged, notwithstanding the debtor's assertion that he had paid the debt to the payee, is supported by a valid consideration.

[Ed. Note. For cases in point, see vol. 7, Cent. Dig. Bills and Notes, §§ 198, 202.] 2. SAME-RESCISSION OF CHECK-Grounds.

A third person gave a check to discharge a note, secured by mortgage, which the holder attempted to collect against the maker, and received the note and mortgage bearing the holder's memorandum of the transaction that both had been discharged. It was not the intention to vest any title in the note and mortgage in the third person. Held, that he could not repudiate the check on the ground that the note had not been indorsed to the holder by the payee.

Exceptions from Superior Court; Chamberlain, Judge.

Action by the National Bank of Newbury against W. M. Sayer, Jr. There was a verdict for plaintiff, and a motion to set it aside was denied. Defendant excepts. Overruled.

November 17, 1902, one Plant bought a horse of one Nutter, and gave in payment a five-months' note secured by a mortgage of the animal. The mortgage was duly recorded. In July, 1903, after the note was overdue, Nutter gave the note and mortgage to the plaintiffs to hold as collateral security, with power to collect the same and credit the proceeds on his debt to them. By mistake, Nutter did not indorse the note. Within a day or two the plaintiff's cashier wrote a letter to Plant, informing him that the bank held the note and mortgage, but the court was unable to find that he received the letter. October 2, 1903, Plant paid the amount due on the note to Nutter, who informed him that the note and mortgage were not then at the place of payment, but that he would send them to him in a few days. This he did not do. In making the payment Plant did not act fraudulently. July 19, 1905, the plaintiff's agent called on Plant and requested payment of the note. Plant insisted that he had paid the note to Nutter. The agent, insisting that the bank was the owner of the note, informed Plant that unless the note was paid at once he should take the horse under the mortgage. Thereupon, at the request of Plant, and to prevent the taking of the horse, the defendant gave the plaintiff his check for the amount of the note, and the agent gave him the note and mortgage, after signing in behalf of the plaintiff a memorandum written on the mortgage, as follows:

"This is to certify that the within note has been paid by W. M. Sayer, Jr., and this mortgage is discharged * without recourse." Subsequently, on the same day, the defendant discovered that the note had not been indorsed by Nutter, and on the following day notified the plaintiff by letter that he had stopped payment of the check for that reason and offered to return the note and mortgage. In due course the check was returned protested for nonpayment. The plaintiff was guilty of no fault or misrepresentation. The defendant moved to set aside the verdict. The motion was denied, and the defendant excepted.

Smith & Smith, for plaintiff. Batchellor & Mitchell and George F. Morris, for defendant.

WALKER, J. It appears that the defendant, at the express request of Plant, gave the check in suit in order to discharge the claim which the bank was attempting to enforce against Plant. Notwithstanding Plant's claim that he had paid the note, the bank insisted upon its validity. It did not concede that it was worthless, and threatened to take the horse covered by the mortgage unless the amount of the note was forthwith paid to it. In order to avoid this result and escape litigation with the bank, Plant induced the defendant to pay the note for him to the plaintiff. It is found that no fraud or deceit was practiced by the plaintiff upon the defendant. What the arrangement was between the defendant and Plant does not clearly appear, and in this action it is not material. The consideration for the check was legal and binding. Flannagan v. Kilcome, 58 N. H. 443; Hitchcock v. Libby, 70 N. H. 399, 402, 47 Atl. 269.

The fact that the note was not formally indorsed to the bank by Nutter is not important, and the discovery of that fact by the defendant after he had given the check to the bank did not authorize him to rescind his executed contract with the bank. It is not apparent what difference it made to him whether it bore the indorsement of the payee or not. When he received the note and mortgage the latter bore the bank's memorandum of the transaction that both had been discharged, and the verdict is consonant with the theory that it was not the intention of the parties to vest any title to the note and mortgage in the defendant. Hence, as he had no legal interest in the question of the previous informal transfer of the note, he is not entitled to avoid his obligation, entered into upon a sufficient consideration, by a rescission of it. It is therefore unnecessary to consider what his rights might have been if the bank had attempted to transfer the note and mortgage to him.

Exception overruled. All concurred.

(73 N. H. 556) HEWETT. WOMAN'S HOSPITAL AID ASS'N et al.

(Supreme Court of New Hampshire. Merrimack. June 5, 1906.)

1. APPEAL AND ERROR-INCONSISTENT VERDICTS-FAILURE TO MOVE TO SET ASIDE.

Where, in an action against two defendants, a verdict was rendered in favor of one and against the other, but no motion was made to set aside the verdicts on the ground that they were so inconsistent as to show a mistrial, neither party was entitled, on exceptions by the defeated defendant, to object to the verdicts on the ground of inconsistency.

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VERDICT GENERAL AND SPECIAL

Where, in an action against a hospital and its manager for negligence in failing to notify a nurse of the contagious nature of a case assigned to her, a verdict was rendered against the hospital and in favor of the manager, the former verdict could not be regarded as a general verdict and the latter a special finding that there was no negligence on the part of the hospital, and hence controlling the general verdict.

[Ed. Note.-For cases in point, see vol. 46, Cent. Dig. Trial, §§ 857-860.]

3. CHARITIES-CHARITABLE HOSPITALS-LIABILITY FOR INJURIES TO SERVANT.

Under Pub. St. 1901, c. 147, § 1, authorizing the formation of corporations for the establishment and maintenance of hospitals, and section 4, providing that such corporations shall have all the rights and powers and be subject to all the duties and liabilities of other similar corporations, a charitable hospital corporation is liable in damages for negligence of its officers, causing injury to a servant employed by it.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Charities, & 103.]

4. SAME-EXISTENCE OF RELATION-APPRENTICE NURSE.

An apprentice nurse employed by a hospital association is a servant entitled to the same degree of care which a master is required to give to any inexperienced servant.

5. SAME LIABILITY FOR INJURIES-DEFENSES. In an action by a nurse against a hospital association for damages caused by the alleged negligence of the manager of the hospital in failing to inform plaintiff of the contagious nature of a case to which she was assigned, the fact that, at the time plaintiff was employed, she represented herself to be older than she was, was no defense.

6. NEGLIGENCE-QUESTIONS FOR JURY.

To entitle plaintiff, in an action for negligence, to have the case submitted to the jury, it is only necessary that the evidence for plaintiff, if true, be sufficient to support a finding in his favor, and the weight and sufficiency of the evidence is a matter solely for the jury.

[Ed. Note. For cases in point, see vol. 37, Cent. Dig. Negligence, §§ 279-302.] 7. CHARITIES LIABILITIES OR CORPORATIONSINJURIES TO SERVANT-NEGLIGENCE-QUESTIONS FOR JURY.

In an action against a hospital association for alleged negligence in failing to notify a nurse employed by it of the contagious nature of a case to which she was assigned, evidence held sufficient to justify submission of the issue of defendant's negligence to the jury.

Transferred from Superior Court; Chamberlin, Judge.

Action by Vera M. Hewett against the Woman's Hospital Aid Association and

another. There was a verdict for plaintiff as against the defendant named, and the case was transferred from the superior court. Judgment on the verdict.

The plaintiff was a pupil nurse in the hospital under a contract by which she was to be trained for a nurse and receive $10 a month. She began her service there in January, 1902, when she was 19 years old. In December, 1903, Mrs. Russell put her in charge of a patient, whose malady the state bacteriologist, after an examination of a culture taken from her, informed Mrs. Russell was diphtheria, a contagious disease. Mrs. Russell had doubts whether it was diphtheria. If it was, it was a very peculiar and unusual form of the disease. The plaintiff was not informed by any one that it might be diphtheria, and was left in ignorance in regard to it until she developed the disease a few days after she was put in charge of the case. Under the declaration, the plaintiff claimed that she was entitled to a verdict against the hospital for its negligence in not notifying her that the case might be diphtheria, and against Mrs. Russell for her personal negligence in assigning her to the case, and for malpractice. At the close of the evidence both defendants moved that verdicts be directed in their favor. The motions were denied, and they excepted.

Henry F. Hollis, for plaintiff. John H. Albin and William H. Sawyer, for defendants.

WALKER, J. The plaintiff's declaration combined three causes of action; one against the hospital for its negligence in not notify. ing her of the danger of her situation in performing the duties of a nurse, one against Mrs. Russel for her personal negligence in inducing the plaintiff to assume the performance of those duties under the circumstances, and one against Mrs. Russell for professional malpractice in attending the plaintiff after she had contracted the disease of diphtheria. The jury returned a verdict against the hospital and a verdict for Mrs. Russell, finding substantially that, while the hospital was negligent as alleged, Mrs. Russell, its representative and manager, who actively directed the plaintiff to assume the danger complained of, was not negligent in that respect, and that she was not guilty of subsequent malpractice. If there is an apparent inconsistency between the first and second findings, a point upon which no opinion is expressed, neither party is in a position, as the case is here presented, to take advantage of it as a ground for setting aside one verdict and sustaining the other. If the supposed inconsistency existed, it would show that there had been a mistrial, and the result would be that both verdicts would be set aside and a new trial granted upon the first two issues raised in the declaration. The verdict upon the third issue in relation

to Mrs. Russell's malpractice, having been fairly tried, would be unaffected by that result. But neither party moved in the superior court to have the verdicts set aside upon the ground of a mistrial, nor does either now urge that disposition of the case. Each seeks to preserve so much of the jury's action as is favorable to that side, and to reject the rest. Under such circumstances both verdicts must stand, so far as this objection to them is concerned, even if they are inconsistent. If the parties are satisfied, the court will not complain. The defendant's suggestion that the verdict in favor of Mrs. Russell is a special verdict or finding that there was no negligence on the part of the hospital, and hence that it controls the general verdict against the latter (Richardson v. Weare, 62 N. H. 80; Folsom v. Railroad, 68 N. H. 178, 44 Atl. 134), is untenable, since no way is discoverable by which to determine that one of the verdicts is general or special rather than the other. If it is true that upon the evidence the actionable negligence of the hospital was also the actionable negligence of Mrs. Russell, and that a finding of her freedom from fault is necessarily equivalent to a finding that the hospital was not guilty, it is equally true, on the other hand, that the verdict of guilty against the hospital establishes the guilt of Mrs. Russell. The difficulty encountered is that there is nothing upon which to predicate the assertion that one of the findings is general and the other special. Both must stand or fall together.

The principal contention relates to the liability of the hospital, in an action of tort, for negligence. A motion was made in the superior court in behalf of the hospital that a verdict to be directed in its favor. The motion was denied, subject to exception. Broadly stated, the question thus presented is whether there was any competent evidence from which it could be found that the defendant hospital was guilty of a breach of duty toward the plaintiff, which was the proximate cause of her injury. If there was, the case was properly one for the jury; if there was not, the defendant was entitled to a verdict, and its motion should have been granted. In support of the motion, it is urged that the corporate character of the defendant is such that it owed no duty to the plaintiff for the breach of which it can be held liable in an action of tort. Since the legal doctrine of negligence assumes as its basis or necessary premise the existence of a legal duty due from the alleged wrongdoer to the injured party, it is important to ascertain what the relations were and what resulting obligations existed between them. There can be little, if any, doubt that the hospital is what is known in the law as a charitable or eleemosynary institution. The purposes for which it was incorporated, according to the articles of association, were "to establish and maintain hospitals and homes, and otherwise aid and assist worthy

and dependent women and children who wish to be under the care of women physicians and attendants." It has no capital stock, and no provision is made for a division of profits. Whatever property it owns is de. voted to the support and management of the institution in the care of sick and dependent women and children, who pay for the benefits received according to their ability, and the money so received is used in paying the necessary expenses incident to such a institution. Its evident purpose is to aid and relieve the sick as economically as possible for the kind of attention provided, and not, like an ordinary business corporation, to earn or accumulate an income for division among its members. Indeed, it is not seriously contended that it is not a charitable corporation, or that it is not entitled to all the immunities legally incident to institutions of that character. But it is insisted that the law does not exempt it from liability for its failure to use reasonable care for the safety of its employés or servants; in other words, that the law imposes the same duty upon it in this respect that it imposes upon individuals and business corporations. The vital question is whether this contention is sound.

The defendant corporation was formed under the general incorporation law, which authorizes five or more person to associate together to form a corporation for "the establishment and maintenance of hospitals." Pub. St. 1901, c. 147, § 1. Section 4 provides that: "Such corporation, its officers and stockholders, shall have all the rights and powers and be subject to all the duties and liabilities of other similar corporations, their officers and stockholders, except so far as the same are limited or enlarged by this chapter." The chapter contains no express provision limiting or enlarging "the duties and liabilities" of hospitals, in any respect material to the present inquiry. If they are exempt from liability in cases of this character, the legislative intention to that effect, which determines their powers and duties, must be found inferentially from a consideration of the peculiar purposes they were formed to accomplish. Their powers and

duties are the same as those of "other similar corporations." It should be noted in this connection that the defendant was not incorporated 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. It holds its property under its charter for the general purposes of a hospital. It is a charitable institution whose powers and duties in the management and expenditure of its funds is unlimited, except so far as they are governed and defined by the general charitable purposes of its incorporation. It is therefore unnecessary to consider what its legal liability might be if it held funds upon a trust which expressly or by necessary inference exempted them from being appro

priated to the payment of damages suffered through the negligence of its officers or servants. Many of the cases which either hold or state argumentatively that a charitable body is not liable for its torts proceed upon the theory that its funds are held upon a special trust, that to use them for the payment of damages in an action of tort against it would be an unwarranted diversion thereof, and that such an action is not maintainable, because it would be entirely futile. Such seems to be the doctrine of, although not necessarily the holding in, Heriot's Hospital v. Ross, 12 C. & F. 507. In that case Lord Cottenham says, with reference to the payment of damages for the tort of a charitable body (page 513): "It is obvious that it would be a direct violation, in all cases, of the purposes of a trust, if this could be done; for there is not any person who ever created a trust fund that provided for payment out of it of damages to be recovered from those who had the management of the fund. No such provision is made here. There is a trust, and there are persons intended to manage it for the benefit of those who are to be the objects of the charity. To give damages out of a trust fund would not be to apply it to those objects which the author of the fund had in view, but would be to divert it to a completely dif ferent purpose." In Powers v. Hospital, 109 Fed. 294, 302, 47 C. C. A. 122, 130, 65 L. R. A. 372, it is said that, if this case "is rested upon a doctrine that under no circumstances can a trust fund be held liable for torts committed in its management, it stands alone in Great Britain," and that doctrine is repudiated in the subsequent case of Mersey Docks v. Gibbs, L. R. 1. H. L. 93. See, also, Gilbert v. Trinity House, 17 Q. B. Div. 795. It would seem to be entirely unnecessary to discuss a propo sition so barren of arguments in its favor. That a charitable institution has certain duties to perform toward 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. Stewart v. Harvard College, 12 Allen (Mass.) 58; Davis v. Society, 129 Mass. 367, 37 Am. Rep. 368; Bishop v. Trustees, 1 E. & E. 697; Gilbert v. Trinity House, 17 Q. B. Div. 795. Cases, also, like McDonald v. Hospital, 120 Mass. 432, 21 Am. Rep. 529, which deny the liability of the defendant to a patient for the negligence of the attending physician or surgeon, seem to concede that, if the corporate officers have been negligent in selecting subordinate agents, the defendant may be liable for injuries occasioned by the negligence of the latter while attending to the corporate business. 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. G02, 45 Am. St. Rep. 427; Williamson v. Industrial School, 95 Ky. 251, 24 S. W. 1065, 23 L. R. A. 200, 44 Am. St. Rep. 243), it cannot be regarded as a discriminating statement of the law upon that subject.

Since the defendant has no absolute exemption from being sued for some torts it may be guilty of, the question recurs whether its character as a charitable institution furnishes a sufficient reason for its exemption in this case. In other words, why did it not owe in a legal sense the duty of a master to the plaintiff while employed in its affairs? Whether the general rule of respondeat superior applies to it as to a business corporation or individual may be an interesting question, but it is not material to the present inquiry. If it owed the absolute, nondelegable duty of a master to the plaintiff, it cannot escape liability by showing that the negligent act which caused the plaintiff's injury was the act of a servant, or raise the question of its liability for the collateral negligence of its servant under the rule of respondeat superior. Upon this assumption, cases holding that a charitable corporation is not responsible under that rule of law are not in point. A few examples are Hearns v. Hospital, 66 Conn. 98, 33 Atl. 595, 31 L. R. A. 224; Fire Insurance Patrol v. Boyd, 120 Pa. 634, 15 Atl. 553, 1 L. R. A. 417, 6 Am. St. Rep. 745; Coe v. Wise, 5 B. & S. 440, 453; Hall v. Smith, 2 Bing. 156; Duncan v. Findlater, 6 C. & F. 894. Nor are cases in point that substantially deny the applicability of that rule to public or quasi public corporations exercising governmental powers, upon the ground that they are charitable corporations, like Metcalfe v. Withorington, 11 Exch. 257, and Mersey Docks v. Gibbs, L. R. 1 H. L. 93. The defendant does not perform governmental functions, and the reasons for the limited liability of municipal bodies for the torts of their servants have no application to corporations like the defendant. O'Brien v. Derry, 73 N. H. 198, 60 Atl. 843; Wheeler v. Gilsum, 73 N. H. 429, 62 Atl. 597. Its charity may be public, but it is in no proper sense an agency of the state.

The duties of the defendant to the plaintiff when she was employed to nurse a diphtheria patient had their inception in the contract of employment. She was engaged to do a necessary part of the work of maintaining a hospital for the sick. For this labor she was paid. If she was an apprentice receiv ing small remuneration in money, in consideration of the instruction and experience she received in practical nursing, she was none the less an employé of the defendant. An apprentice learning a trade occupies the position of a servant with reference to his employer, and obviously the latter's duty to

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