Donnelly v. Boston Catholic Cemetery Ass'n

• Decision Date: 29 February 1888
• Citation: 146 Mass. 163,15 N.E. 505
• Parties: DONNELLY v. BOSTON CATHOLIC CEM. ASS'N.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

146 Mass. 163

15 N.E. 505

DONNELLY v. BOSTON CATHOLIC CEM. ASS'N.

Supreme Judicial Court of Massachusetts, Suffolk.

February 29, 1888

COUNSEL

J.L. Eldridge, for plaintiff.

This case does not come within the rule in McDonald v Hospital, 120 Mass. 432; Benton v. Hospital, 140 Mass. 13, 1 N.E. 836; Gooch v. Relief Ass'n, 109 Mass. 558. The defendant was not a public charitable association. A contract existed between the defendant and the plaintiff, and the defendant owed a duty to the plaintiff and neglected it. The defendant was negligent in failing to provide and keep proper and sufficient records.

Gaston & Whitney, for defendant.

The defendant is a public charitable corporation, carrying on a work exclusively for the benefit of the public, without any private advantage or emolument, and, as such, is not liable for the negligence of its employes, in the absence of negligence in selecting them. McDonald v. Hospital, 120 Mass. 432; Tindley v. Salem, 137 Mass. 171; Benton v. Hospital, 140 Mass. 13, 1 N.E. 836. The maintenance of a place of burial for the dead is a duty which is ordinarily imposed upon the local agencies of the government, and falls under the same head as the maintenance of hospitals, poor-houses, asylums, and the like, and is therefore a public charitable object. The fact that the benefits of the defendant are confined to Roman Catholics does not deprive it of its character as a public charity. In McDonald v. Hospital, supra, it was held that the public charitable character of the institution was not affected by the fact that only those could enjoy its benefits whom the trustees chose to admit. Jackson v. Phillips, 14 Allen, 539, 554; In re Schouler, 134 Mass. 426. Not only is the object of the present defendant corporation charitable in its nature, but it is managed as a charity, and exclusively for the public good. See Gooch v. Relief Ass'n, 109 Mass. 558. The test of a charity is not found in the source of its revenue, but in its application thereof to a public charitable object. The defendant being therefore, incorporated for a public charitable object, and carrying out this object exclusively for the public good, is not liable for the negligence of its servants. The present case is indistinguishable from McDonald v. Hospital, supra. It is true that in that case the fact was mentioned that there would be a misapplication of certain trust funds of the hospital if the plaintiff was allowed to recover, but the case was not decided on that ground. The authority referred to, Holliday v. St. Leonard, 11 C.B. (N.S.) 192, was not a case where there was any question of the misapplication of trust funds. If, however, that point is deemed to have influenced the decision, there would be the same misappropriation of trust funds in the present case; for the proceeds of the sales of graves are held upon trust to carry out the objects of the corporation, just as much [DONNELLY V BOSTON CATHOLIC CEMETERY ASS'N 15 N.E. 505(1888)] as if property had been given in trust for that purpose; this having been stated in McDonald v. Hospital, with reference to money received from paying patients. The present case also falls within the principle of the decision in Tindley v. Salem, 137 Mass. 171. See, also, Benton v. Hospital, 140 Mass. 13, 1 N.E. 836. The plaintiff in the present case derives no right to maintain his action from the fact that he paid seven dollars for his grave. The defendants' exemption from liability does not rest on the ground that there is no consideration for an undertaking on its part to be responsible for its servants' negligence, but on the ground that from its character as a public charity, and from motives of public policy, no undertaking to be so responsible is to be implied. There can be no doubt that the decision in McDonald v. Hospital would have been the same if the plaintiff there had been a paying patient.

OPINION

HOLMES, J.

There was evidence warranting a verdict for the plaintiff if the defendant was subject to the ordinary rules of liability. We are of opinion that it was subject to those rules, and that by the terms of the report, judgment must be entered for the plaintiff. McDonald v. Hospital, 120 Mass. 432, was decided on the ground that the defendant was...