Donnelly v. Boston Catholic Cemetery Ass'n

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. Massachusetts General Hospital, 120 Mass. 432, was decided on the ground that the defendant was a public charitable institution under the laws of the Commonwealth, and Benton v. Trustees of Boston City Hospital, 140 Mass. 13, on the ground that, if it was not within the former decision, then the defendant was a mere agent to perform a duty which the city of Boston had assumed solely for the benefit of the public, under the authority of a statute; that the city of Boston would not be liable under the rules peculiar to municipal corporations stated in Tindley v. Salem, 137 Mass. 171, and Hill v. Boston, 122 Mass. 344; and that therefore a mere statutory agent without property intervening between the city and the actual wrongdoer was also free from liability.

The latter ground has no application here. There is no pretence that the defendant is acting as an agent for the city. We think that there is equally little ground for calling it a charitable corporation. Assuming for the sake of argument that it would have no right to declare dividends to its members in case of realizing profits, there is nothing in the charter which compels the application of any part of its funds to charitable uses. It would be acting strictly within its powers if it sold all its lands for full price. The purpose of the charter is to secure permanent care of graves, and such advantages to the persons interested as may be deemed incident to burial in such a cemetery. The beneficiaries are a definite number of persons clearly pointed out by law. St. 1841, c. 114, §§ 4, 5. Old South Society v. Crocker, 119 Mass. 1, 23. See Evergreen Cemetery Association v. Beecher, 53 Conn. 551; Matter of Deansville Cemetery Association, 66 N. Y. 569.

The provision in the St. of 1841, c. 114, § 3, that all the real and personal estate of thé corporation “ shall be applied exclusively to purposes connected with, and appropriate to, the objects of such organization,” does not mean to exempt its property, and thus the corporation, from ordinary civil liabilities. There is a similar restriction, express or implied, in the case of a railroad.

*167The fact that the funds received were actually applied to a considerable extent in charity, is no more material than evidence of a similar application of a part of his income by a private citizen would be, in a suit against him.

Judgment for plaintiff.