Fire Insurance Patrol v. Boyd , 120 Pa. 624 ( 1888 )

Opinion,

Me. Justice Paxson:

When this ease was here upon a former writ of error (see 113 Pa. 269), we did not decide the question whether the Fire Insurance Patrol was such a corporation as to bo exempt from the rule of respondeat superior, for the reason that we had little before us but the charter itself, and tbat was not regarded as sufficient to show satisfactorily the character of the corpora; tion. The case now comes up to us with additional light, and we have no difficulty in arriving at a conclusion.

Of the forty-two assignments of error I shall discuss only six, viz.: the 30th to the 35th inclusive. The first five of these assignments present, in various forms, the question whether the Insurance Patrol is a public charity, while the 35th alleges that the court below erred in not giving the jury a binding instruction that the defendant was not liable in this action.

As disclosed by the charter “ The object of the corporation was to protect and save life and property in or contiguous to burning buildings, and to remove and take charge of such property or any part thereof, when necessary.” As disclosed by the evidence, it appears to be a corporation without capital stock or moneyed capital; that it is supported by voluntary contributions, derived from different fire insurance companies; that its object and business is to save life and property in or contiguous to burning buildings; that in saving and protecting such property no difference is made between property insured and property which is not insured; that no profits or dividends are made and divided among the corporators.

Passing by for the present the question of a public charity, it seems plain that this corporation might well have been created by the state in aid of the municipal government of the city of Philadelphia. It is one of the recognized functions of municipal government, to suppress and extinguish fires. For this purpose the city has a paid fire department, which has taken the place of the volunteer fire department formerly in existence. It is as much the province or duty of the city to save life and property at fires as to extinguish such fires, and the Fire Insurance Patrol might well have been organized as an auxiliary to the city government and placed under its direct control. That it aids the city as a volunteer does not alter the fact that it is still an auxiliary of the municipal government, performing functions which that government might properly perform, just as did the old volunteer fire department.

Is the Insurance Patrol a public charitable institution? The learned court below held that it was not, upon the ground that the main object of the institution was to benefit the insurance companies, who were the chief contributors to its funds. In other words, the learned judge tested the nature and character of the institution by the motives of its contributors. We might be driven to the same conclusion were we to adopt Mr. Biimey’s definition as found in his argument in the Girard Will Case, as the test of a public charity, where he said: “ It is whatever is given for the love of God, or for the love of your neighbor, in tbe catholic and universal sense; given from these motives, and to those ends, free from the stain or taint of every consideration that is personal, private or selfish.” This is undoubtedly charity in its highest and noblest sense. The Recording Angel might well point to it with satisfaction; and it may he the test in the Great Hereafter, but were we to apply it to the transactions of this wicked world, I fear it would lead to serious embarrassment. In the first place, it is utterly impracticable, for it is God only who can look into the heart and judge of motives. In tbe second place, if we bad tbe power of omniscience and were to apply it, what would be tbe result ? How many of our noblest and most useful public charities would stand such a test? How many donations to public charities are made out of pure love to God and love to man, free from tbe stain or taint of every consideration that is personal, private or selfish ? Who can say that the millionaire who founds a hospital or endows a college, and carves his name thereon in imperishable marble, does so from love to God and love to his fellow, free from the stain of selfishness ? Yet, is the hospital or the college any the less a public charity because the primary object of the founder or donor may have been to gratify his vanity, and hand down to posterity a name which otherwise would have perished with his millions ? There is ostentation in giving, as well as in the other transaction of life. Iir some instances donations to public charities may be in part due to this cause; in others, there may be the expectation of indirect pecuniary gain or return. The professional man who gives freely to his church may not be insensible to the fact that liberality makes friends and sometimes increases clientage. Coiled up within many a gift to a public charity, there is a secret motive, known only to the searcher of all hearts. It may be to benefit the donor in this world or to save his soul in the next. It would he as vain as it would be unprofitable for a human tribunal to speculate upon the motives of men in such cases. Nor is it necessary for any legal purpose. The money which is selfishly given to public charity does as much good as that which is contributed from a higher motive, and in a legal sense the donor must have equal credit therefor. We must look elsewhere for a definition of a legal public charity.

In Morice v. Bishop of Durham, 9 Ves. 405, it was said by Sir William Grant that those purposes are considered charitable which are enumerated in the statute of 43d Elizabeth, or which by analogy are deemed within its spirit and intendment. It is true that this statute of Elizabeth is not in force in Pennsylvania, but its principles are a part of the common law: Cresson’s Appeal, 30 Pa. 450. In British Museum v. White, 2 Sim. & S. 596, a charitable gift was defined to be, “ Every gift for a public purpose, whether local or general, although not a charitable use within the common and narrow sense of those words.” In Jones v. Williams, Ambler 651, Lord Camden gives this practical definition, viz.: “ A gift to a general public use which extends to the poor as well as to the rich.” This definition has been repeatedly approved by this and other courts: See Wright v. Linn, 9 Pa. 433; Coggeshall v. Pelton, 7 Johns. Ch. 294; Milford v. Reynolds, 1 Phil. Ch. R. 191; Perrin v. Carey, 24 How. 506; Jackson v. Phillips, 14 Allen 556.

These brief citations from the English authorities are deemed sufficient. I now turn to our own and other states. In Cresson’s Appeal, 30 Pa. 437, tins court, after citing with approval Jones v. Williams, supra, said: “In order to ascertain what are charitable uses, the English courts have generally resorted to the preamble of the act of parliament, 43 Elizabeth. That enumerates twenty-one, and among them are found the following: Repairs of bridges; repairs of ports and havens; repairs of causeways ; repairs of sea-banks ; repairs of highways ; fitting out soldiers ; other taxes. And beyond the enumeration contained in that act, many other gifts have been recognized as common law gifts to charitable uses, for example: for cleansing the streets, maintenance of houses of correction; for the true labor and exercise of husbandry, for public benefit. These cases and many others are collected in Magill v. Brown, Brightly 347. It is true the statute of Elizabeth is not in force as a statute in Pennsylvania, but, as before stated, its principles are part of our common law. The case of Magill v. Brown was a Pennsylvania case, and there it was held that a bequest for a fire engine and hose was a gift for a charitable use.” In Jackson v. Phillips, 14 Allen 556, a charity was defined by Justice Gray as follows: “ A charity, in legal sense, may be more fully defined as a gift to be applied consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their minds or hearts under the influence of education or religion, by relieving their bodies from disease, suffering or constraint, by assisting them to establish themselves in life, or by erecting or maintaining public buildings or works, or otherwise lessening the burdens of government.” This definition has been cited approvingly, not only by text writers but by other courts. In Miller v. Porter, 58 Pa. 292, there was a bequest by Porter to a university which was to bear his name, and this court said: “You say it (The Porter University) was not founded to promote religion or religious education, but to immortalize the founder, and therefore it was not a charity. If the premises be granted, the conclusion does not follow, because though it has no stamp of religion, and the selfishness of motive may take away from it the high and abstract quality of a Christian charity, yet it was to be a seat of learning — a university — a centre from which the rays of educated intelligence were to radiate in all directions ; and, if to found a school house at the cross-roads of a township be a legal charity though the selfish motive be apparent, much more to found such a university is a legal charity; and, if a charity within the legal sense of that word, then it is as much within the purview of the statute as a bequest to the West Town School, and Price v. Maxwell rules the case.” Following in this line of thought is Manners v. The Library Co., 93 Pa. 165, where it was held in the case of a public charity that the intent of the testator will not be defeated because a secondary intent may be illegal, for if it be unlawful it will be disregarded. In the appeal of The Humane Fire Company, 88 Pa. 389, it was distinctly ruled by this court that the association was a public charity. That company was one of the members of the old volunteer fire department of the city of Philadelphia; was organized for the purpose of extinguishing fires, and was supported just as the Fire Insurance Patrol is supported, by voluntary contributions. It is true many of its contributions came from private citizens, but I am unable to see any distinction between contributions to a fire company or insurance patrol, made by individuals and those made by corporations. In both ■cases a corresponding benefit is expected. It would be idle to say that the insurance companies do not expect to diminish their losses by their support of the Insurance Patrol. But has the private citizen who contributes to a fire company any higher motive? Does he pay his money out of love to God and love to man, or does he pay it to protect his property?

It will be noticed that in no one of the cases cited is the motive of the donor made a test of a charity. "While it is true that a gift within the definition of Mr. Binney is a good charitable use, and in a moral sense perhaps the best, it has never been held that said definition is a test of a charity. On the contrary this court held in Martin v. McCord, 5 W. 493, that the accession to a charity need not be by gift, but may be by contract; and that the accession to the charitable use from one who gave ground for a school house, if the neighbors would go on and build a decent house on it for the benefit of the neighborhood, and for the benefit of his grandson John, whom he wished to send to school, was good; and Sergeant, J., said “not as a gift, but as a purchase for a valuable consideration,” and the neighbors were the trustees for a charitable use. And in Miller v. Porter, supra, we have already seen that this court ■expressly repudiated the idea that the selfish motive affected the legal nature of the gift or use, and held that the object of ■the bequest only, and not the motive, governed its legal effect. The true test of a legal public charity is the object sought to be attained; the purpose to which the money is to be applied; not the motive of the donor.

Our conclusion is that the • Fire Insurance Patrol of Philadelphia is a public charitable institution; that in the performance of its duties it is acting in aid and in ease of the municipal government in the preservation of life and property at fires. It-remains to inquire whether the doctrine of respondeat superior applies to it. Upon this point we are free from doubt. It has been held in this state that the duty of extinguishing fires and saving property therefrom is a public duty, and the agent to whom such authority is delegated is a public agent and not liable for the negligence of its employees. This doctrine was affirmed by this court in Knight v. City of Philadelphia, 15 W. N. 307, where it was said: “We think the court did not com-

mit any error in entering judgment for the defendant upon the demurrer. The members of the fire department are not such servants of the municipal corporation as to make it liable for their acts or negligence. Their duties are of a public character, and for a high order of public benefit. The fact that this act of assembly did not make it obligatory on the city to organize a fire department, does not change the legal liability of the municipality for the conduct of the members of the organization. The same reason which exempts the city from liability for the acts of its policemen, applies with equal force to the acts of the firemen.” And it would seem from this and other cases to make no difference as respects the legal liability, whether the organization performing such public service is a volunteer or not: Jewett v. New Haven, 38 Conn. 379; Russell v. Men of Devon, 2 T. R. 672; Feoffees of Heriot’s Hospital v. Ross, 12 C. & F. 506; Riddle v. Proprietors, 7 Mass. 187; McDonald v. Hospital, 120 Mass. 432; Boyd v. Insurance Patrol, 113 Pa. 269. But I will not pursue this subject further, as there is another and higher ground upon which our decision may be placed.

The Insurance Patrol is a public charity; it has no property or funds which have not been contributed for the purposes of charity, and it would be against all law and all equity to take those trust funds, so contributed for a special, charitable purpose, to compensate injuries inflicted or occasioned by the negligence of the agents or servants of the patrol. It would be carrying the doctrine of respondeat superior to an unreasonable and dangerous length. That doctrine is at best — as I once before observed — a hard rule. I trust and believe it will never be extended to the sweeping away of public charities; to the misapplication of funds, specially contributed for a public charitable purpose, to objects not contemplated by the donors. I think it may be safely assumed that private trustees, having the control of money contributed for a specific charity, could not in case of a tort committed by one of their members, apply the funds in their hands to the payment of a judgment recovered therefor. A public charity, whether incorporated or not, is but a trustee, and is bound to apply its funds in furtherance of the charity and not otherwise. This doctrine is hoary with antiquity and prevails alike in this country and in England, -where it originated as early as the reign of Edward V., and it was announced in the Year Boole of that period. In the Feoffees of Heriot’s Hospital v. Ross, 12 C. & F. 506, a person eligible for admission to the hospital brought an action for damages against the trustees for the wrongful refusal on their part to admit him. The case was appealed to the House of Lords when it was unanimously held that it could not be maintained. Lord Cottenham said: “It is obvious that it would be a direct violation, in all cases, of the purpose of a trust if this could be done; for there is not any person who ever created a trust that provided for payment out of it of damages to be recovered from those who had the management of the fund. No such provision has been 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 different purpose.” Lord Brougham said: “The charge is that the governors of the hospital have illegally and improperly done the act in question, and therefore, because the trustees have violated the statute, therefore — what? Not that they shall themselves pay the damages, but that the trust fund which they administer shall be made answerable for their misconduct. The finding on this point is wrong, and the decree of the court below must be reversed.” Lord Campbell : “It seems to have been thought that if charity trustees have been guilty of a breach of trust, the persons damnified thereby have a right to be indemnified out of the trust funds. That is contrary to all reason, justice and common Sense. Such a perversion of the intention of the donor would lead to most inconvenient consequences. The trustees would in that case be indemnified against the consequences of their own misconduct, and the real object of the charity would be defeated. Damages are to be paid from the pocket of the wrongdoer, not from a trust fund. A doctrine so strange, as the court below has laid down in the present case, ought to have been supported by the highest authority. There is not any authority, not a single shred here to support it. No foreign or constitutional writer can be referred to for such a purpose.” I have quoted at some length from the opinions of these great jurists because they express in vigorous and clear language the law upon this subject. I have not space to discuss the long line of cases in England and this country in which the above principle is sustained. It is sufficient to refer to a few of them by name: Riddle v. Proprietors of the Locks, 7 Mass. 187; McDonald v. Massachusetts General Hospital, 120 Mass. 432; Sherbourne v. Yuba Co., 21 Cal. 113; Brown v. Inhabitants of Vinalhaven, 65 Me. 402; Mitchell v. City of Rockland, 52 Me. 118; City of Richmond v. Long, 17 Grattan 375; Ogg v. City of Lansing, 35 Ia. 495; Murtaugh v. City of St. Louis, 44 Mo. 479; Patterson v. Penn. Reform School, 92 Pa. 229; Maximillian v. Mayor, 62 N. Y. 160.

I am glad to be able to say that no state in this country, or in the world, has upheld the sacredness of trusts with a firmer hand than the state of Pennsylvania. Not only is a trustee for a public or private use not permitted to misapply the trust funds committed to Ms care, but if he convert them to his own use the law punishes him as a thief. How much better than a thief would be the law itself, were it to apply the trust’s funds contributed for a chaiitable object, to pay for injuries resulting from the torts or negligence of the trustee ? The latter is legally responsible for his own wrongful acts. I understand a judgment has been recovered against the individual whose negligence occasioned the injury in this case. If we apply the money of the Insurance Patrol to the payment of this judgment, or of the same cause of action, what is it but a misapplication of the trust fund; as much so as if the trustees had used it in payment of their personal liabilities ? It would be an anomaly to send a trustee to the penitentiary for squandering trust funds in private speculations, and yet permit him to do practically the same thing by making it liable for his torts. If the principle contended for here were to receive any countenance at the hands of this court, it would be the most damaging blow at the integrity of trusts which has been delivered in Pennsylvania. We are not prepared to take this step.

We are not unmindful of the fact that it was contended for the defendant in error that the case of Feoffees of Heriot’s Hospital v. Ross, is in conflict with Mersey Docks v. Gibbs, L. R. 1 E. & I. App. Cas. 93, and Parnaby v. Lancaster Canal Co., 11 Ad. & E. 223. I am unable to see any such conflict. The two corporations last named were evidently trading corporations and in no proper sense public charities. In regard to the docks, it was said by Blackburn, J., at page 465: “ There are several cases relating to charities which were mentioned at your Lordship’s Bar, but were not much pressed, nor, as it seems to us, need they be considered now; for whatever may be the law as to the exemption of property occupied for charitable purposes, it is clear that the docks in question can come within no such exemption.”

■ I will not consume time by discussing the case of Glavin v. Rhode Island Hospital, 12 R. I. 141, which, to some extent, sustains the opposite view of this question. There, a hospital patient paying eight dollars per week for his board and medical attendance, was allowed to recover a verdict against the hospital for unskilful treatment, and it was held that the general trust funds of a charitable corporation are liable to satisfy a judgment in tort recovered against it for the negligence of its officers or agents. It is at least doubtful, whether under its facts the case applies, and if it does, we would not be disposed to follow it in the face of the overwhelming weight of authority the other way, and of the sound reasoning by which it is supported.

The foregoing is little more than a re-assertion of the views of this court as heretofore expressed in this case by our brother Clark : See 113 Pa. 269. Many of the authorities I have referred to are there cited by him. We are now more fully informed as to the facts of the case, and can apply to them the law as indicated in the former opinion.

We are all of opinion that the Insurance Patrol is not liable in this action, and the judgment against it is therefore

Reversed.