The facts, which are undisputed, are as follows:

Alma Rudy was seriously injured by being struck by a street car on the Public Square in Cleveland on May 28,1924, and was taken by a policeman, in a taxicab to Lakeside Hospital, where the jewelry on her person was taken from her and turned over to the hospital. At the time of the accident, a man near by, who saw the accident, rode in the taxi cab to the hospital and thereby overheard the plaintiff request the officer to notify her daughter and son-in-law of the accident, and also observed that she wore valuable jewelry. Thereafter, he went to an employee of the hospital' who was in charge of the jewelry and represented himself to be Rudy’s son-in-law and obtained the jewelry without any identification and thereupon absconded.

Suit in the Cuyahoga Common Pleas was not filed on the ground of negligence, but on contract; the claim being that the Hospital broke its contract of bailment.

The Hospital contends that in the case of a bailment the question of whether or not the bailee exercised proper care is the gist of the action and that, since it could not be held liable, except for failure to exercise ordinary care, the question of negligence is the issue and that as the Hospital is a charitable institution, no liability can attach to it because of the rule that a public charitable institution is not liable for the negligent acts of its agents or employees.

Rudy contends that she had two causes of action as follows:

(1) To sue in tort on ground of negligence, or

(2) Waive the tort and sue for breach of contract of bailment.

She further contends that she elected to sue in contract and that therefore a misdelivery by the bailee does not relieve it of liability by showing an exercise of ordinary care; so that the question of negligence is not an issue and therefore the Hospital is liable by virtue of the rule that a public charitable institution is liable for breach of its contracts.

Note — OA. opinion will be found in 3 Abs. 747.