Messrs. Selden Y. Trimble and Helm Bruce, for appellant University: Defendants are exempt from claims and suits for damages, because each is an arm and agency of the state, and the property of the state cannot be taken for the satisfaction of such claims, and the funds set aside by the lawmakers and taxpayers for the support of these institutions cannot be taken for other purposes. Williamson v. Louisville Industrial School, 95 Ky. 251, 23 L.R.A. 200, 44 Am. St. Rep. 243, 24 S. W. 1065; Leavell v. Western Kentucky Asylum, 122 Ky. 213, 4 L.R.A. (N.S.) 269, 91 S. W. 671, 12 Ann. Cas. 827; Ketterer v. State Bd. of Control, 131 Ky. 287, 20 L.R.A. (N.S.) 274, 115 S. W. 200; Glavin v. Rhode Island Hospital, 12 R. I. 411, 34 Am. Rep. 675; Cook v. John N. Norton Memorial Infirmary, 180 Ky. 331, L.R.A.1918E, 647, 202 S. W. 874; 13 R. C. L. 945; Emery v. Jewish Hospital Asso. 193 Ky. 400, 236 S. W. 577, 21 N. C. C. A. 302; Dunn v. Central State Hospital, 197 Ky: 807, 248 S. W. 216; Hockenhammer v. Lexington & E. R. Co. 24 Ky. L. Rep. 2386, 74 S. W. 222. Messrs. Frank E. Daugherty, Attorney General, and Charles F. Creal, Overton S. Hogan, and John C. Duffy, Assistant Attorneys General, for appellant hospital. Messrs. McKenzie & Smith and Henson & Taylor for appellee. mail, but also notified the hospital authorities of her new home and address. On December 10, Dr. Durham, the superintendent of the Western State Hospital, had a letter written to Mrs. Metcalfe advising her that her husband was gradually growing weaker, and that without a change he would not live. After writing this letter Dr. Durham became quite ill and went to his home, where he was confined to his bed continuously until December 15. He was unable, however, to remain at his office and returned to his home without receiving any information as to the condition of Mr. Metcalfe, who had died on December 12. Immediately after his death the hospital authorities endeavored to get in touch with Mrs. Metcalfe over the phone in Henderson, but were unable to do so. Thereupon the county judge of Henderson county was called and informed of Mr. Metcalfe's death and of the inability of the authorities to locate his widow, and his assistance in the matter was requested. On December 13, the county judge was again called over the phone, but he advised that nothing was known of Mrs. Metcalfe or her whereabouts. That night the Clay, J., delivered the opinion of body was embalmed and shipped to the court: Several years ago E. N. Metcalfe, a Methodist minister, was adjudged of unsound mind by the Henderson county court and committed to the Western State Hospital at Hopkinsville. Thereafter his wife, Mrs. Laura Metcalfe, continued to reside with her daughter and son-in-law at Henderson until the year 1921, when she moved with them to Evansville, Ind. At the time of her husband's commitment she gave her address at Henderson with the street number, and after that she communicated occasionally with the superintendent of the hospital, and several letters passed between her and her husband. Mrs. Metcalfe claims that after she moved to Evansville she not only left her new address with the postoffice authorities of Henderson with directions to forward all the University of Louisville. The letter which had been written to Mrs. Metcalfe at Henderson on December 10 was forwarded and received by her in Evansville on December 12. She claims to have answered it immediately and that the reply should have been received at Hopkinsville on December 13. The hospital authorities claim that the letter did not arrive there until the morning of December 15. In this letter she complained of their having written so little, and asked for further particulars. In reply to this letter Dr. Durham wrote Mrs. Metcalfe on December 15 that her husband had died on December 12 from epilepsy; that they had attempted to get in communication with her at the Henderson address, but failed to do so; that after failing to locate her they called up the coun (216 Ky. 339,-287 S. W. 945.) ty judge of Henderson county, and he gave authority as to the burial of the body. From this Mrs. Metcalfe assumed that the body had been properly buried, and thereupon she consulted an undertaker, who told her it would be best to wait until spring before the remains were removed for proper burial. On December 21, she wrote asking that the grave be marked and wanted to know why they did not notify her immediately of her husband's death, as her address was on file at the institution. On receipt of this letter Dr. Durham called Mrs. Metcalfe over the phone and advised her that her husband's remains had been sent to Louisville. Later on, Mr. Clark, Mrs. Metcalfe's son-in-law, called up Dr. Durham to find out what he meant and claimed that they then learned for the first time that Mr. Metcalfe's body had been shipped to the dissecting room of the University of Louisville. On December 29, Mrs. Metcalfe sent a telegram to the University of Louisville requesting that the body be shipped to Paducah for burial. In the meantime funeral arrangements had been made, friends had gathered, flowers had been sent, and it was then ascertained that the body that had arrived on December 30 was that of another man. It appears that the tag number of Mr. Metcalfe's body was 69-22, while the tag number on the body sent was 68-22, and the university authorities claim that owing to the blurring of the figure 8 it had the appearance of the figure 9, and this was the cause of the mistake. Thereupon the authorities at the hospital and the university were notified of the mistake, and the body that had been sent was ordered reshipped to Louisville. Mrs. Metcalfe directed the university authorities to hold Mr. Metcalfe's body until some one could go to Louisville and identify it. One of the hospital attendants then went to Louisville and identified the body. The body was then shipped to Henderson accompanied by the attendant. Upon an examination of the body it was discovered that the skin on the back of the left hand was gone, leaving the bones and tendons exposed. The university authorities. claim that this condition was due to dragging the body out of the vat, while Mrs. Metcalfe insists that the condition of the hand bore evidence of dissection. It seems, however, that the hand was properly bandaged when the body was shipped, and that its condition was not perceptible unless the bandages were removed. Section 2645, Ky. Stat. provides: "It shall be the duty of any superintendent, warden, coroner, or other person having in his possession the dead body of any person which may be unclaimed, to notify the relatives or friends of the deceased person (if they are known) of the death of the person and place where the body is; and, on the failure of such deceased person's relatives or friends, within three days, to claim and bury the body, it shall be the duty of such officers or other persons, on the demand of a professor of any medical college or school, as herein contemplated, to deliver the body to such professor, who shall at once cause such body to be embalmed, and shall preserve the same for thirty days before dissecting it. During said thirty days it shall be the duty of such college, or professor thereof, to deliver the body, without any charge, to the friends or relatives of the deceased who may demand it for interment." Section 2646 is as follows: "If such body be not claimed for interment during said thirty days, it shall be lawful for the professors or students of the college, after the expiration of thirty days, to examine or dissect such body." Relying upon the fact that the hospital authorities did not hold the body for three days, and upon the further fact that the university authorities dissected the hand before the expiration of 30 days, Mrs. Metcalfe brought this suit against the Western State Hospital, Dr. Durham, and the University of Louisville, to recover damages. There were three trials of the action. The first trial resulted in a verdict against each defendant for $18,000, which was set aside. On the second trial there was a verdict for $12,000, which was also set aside. On the last trial the jury found for Dr. Durham, but awarded $5,000 damages against the hospital, and a like sum against the university. From that judgment this appeal is prosecuted. We shall first consider the appeal of the Western State Hospital. Its chief insistence is that its demurrer to the petition was improperly overruled. The question has been before this court on so many occasions that it is unnecessary to review the authorities at length. It is sufficient to say that an asylum, or as it is now called a hospital, created and maintained at the expense of the state for the care of the insane, is a mere instrumentality of the state government brought into being to aid in the performance of a governmental duty, and is not therefore liable in damages pital-liability for either the negli Charities-hos for acts of officers. gent or malicious acts of its officers, agents, or employees. Williamson v. Louisville Industrial School, 95 Ky. 251, 23 L.R.A. 200, 44 Am. St. Rep. 243, 24 S. W. 1065; Leavell v. Western Kentucky Asylum, 122 Ky. 213, 4 L.R.A. (N.S.) 269, 91 S. W. 671, 12 Ann. Cas. 827; Ketterer v. State Bd. of Control, 131 Ky. 287, 20 L.R.A. (N.S.) 274, 115 S. W. 200; Dunn v. Central State Hospital, 197 Ky. 807, 248 S. W. 216. The only exception to this rule is where the institution commits a nuisance and thereby injures the property of another or otherwise takes and injures the property of another without making just compensation therefor, as required by § 242, Constitution. Hauns v. Central Kentucky State Lunatic Asylum, 103 Ky. 562, 45 S. W. 890. This case does not fall within the exception, for whatever may be the nature and extent of one's property right in a corpse, it is not the kind of property that may be condemned, and is not therefore protected by § 242 of the Constitution. Nor is there any merit in the contention that the hospital authorities were not performing a governmental duty in sending the corpse to the University of Louisville, because they were not then engaged in the care of the insane, but were acting under a statute regulating the disposition of unclaimed bodies. The disposition of the unclaimed bodies of the insane is as much a governmen- hospital-liatal function as their ing body of care and mainte- patient to medinance during their lives, and when the superintendent of a hospital acts under the statute he simply performs a duty imposed on him as the agent of the hospital, and the hospital in acting through him acts as an arm of the government and not in a private capacity. It follows that the hospital's demurrer to the petition should have been sustained and the petition dismissed. bility for send cal school. With respect to the University of Louisville the situation is this: In the first paragraph of its answer it challenged the jurisdiction of the court on the ground that it was a nonresident of the county where the action was brought, and had been summoned out of the county. Although the hospital was improperly joined, and its demurrer to the petition should have been sustained, yet, as a cause of action was stated against Dr. Durham, one of the local defendants, this was sufficient to give the court jurisdiction until judg- diction-nonment was rendered Courts-juris residents. in his favor. When this occurred the court lost jurisdiction of the nonresident (speaking of the county) defendant, University of Louisville (Civil Code, §§ 78 and 80; Pottinger v. Mayfield, 14 B. Mon. 647; Meguiar v. Rudy, 7 Bush, 432; Duckworth v. Lee, 10 Bush, 51; Basye v. Brown, 78 Ky. 553; Louisville Home Teleph. Co. v. Beeler, 125 Ky. 366, 101 S. W. 397; Com. use of Bryant v. James, 138 Ky. 473, 128 S. W. 338; Knox (216 Ky. 339, 287 S. W. 945.) ville Bkg. & T. Co. v. Mershon, 152 Ky. 171, 153 S. W. 238; Martin v. Franklin, 160 Ky. 61, 169 S. W. 540; Second Nat. Bank v. Prichard, 172 Ky. 190, 189 S. W. 14), and should have sustained its motion for a judgment notwithstanding the verdict, and have ordered the petition dismissed. This conclusion makes it unnecessary to consider any other questions raised on the appeal. Wherefore, the judgments against appellants are each reversed, and the cause remanded, with directions to dismiss the petition. Whole court sitting. ANNOTATION. Liability of hospital maintained at expense of state or a political subdivision for torts of its officers or employees. I. In general, 379. II. Injury to persons, 381. III. Damage to property, 382. [Charities, § 78.] IV. Power "to sue and be sued," 384. V. Effect of receiving compensation from patients, 384. As to liability of privately conducted charity, including hospitals, for personal injuries, see annotations in 14 A.L.R. 572; 23 A.L.R. 923; and 30 A.L.R. 455 [Charities, § 73]. I. In general. The rule is well established that a state is not liable for the negligence or misfeasance of its officers or agents, except when such liability is voluntarily assumed by its legislature. 25 R. C. L. 407. It seems well settled that a hospital, maintained at the expense of the state or a political subdivision thereof, is not liable for the torts of its officers or employees; and this seems to be the rule whether the action is against the state, a municipal corporation, or a hospital corporation created by the state to act as its agent in the case of those physically or mentally unwell. United States. Lyle v. National Home (1909; C. C.) 170 Fed. 842. Alabama. White v. Alabama In sane Hospital (1903) 138 Ala. 479, 35 So. 454. California. Sherbourne v. Yuba County (1862) 21 Cal. 113, 81 Am. Dec. 151. Georgia.-Watson v. Atlanta (1911) 136 Ga. 370, 71 S. E. 664. Illinois. Tollefson V. Ottawa (1907) 228 Ill. 134, 11 L.R.A. (N.S.) 990, 81 N. E. 823. - Indiana. Williams v. Indianapolis (1901) 26 Ind. App. 628, 60 N. E. 367. Kansas. Butler v. Kansas City (1916) 97 Kan. 239, L.R.A.1916D, 626, 155 Pac. 12, Ann. Cas. 1918D, 801. Kentucky. Having v. Covington (1904) 25 Ky. L. Rep. 1617, 78 S. W. 431; Lexington v. Batson (1904) 118 Ky. 489, 81 S. W. 264; Twyman v. Frankfort (1904) 117 Ky. 518, 64 L.R.A. 572, 78 S. W. 446, 4 Ann. Cas. 622; Leavell v. Western Kentucky Asylum (1906) 122 Ky. 213, 4 L.R.A. (N.S.) 269, 91 S. W. 671, 12 Ann. Cas. 827; Ketterer v. State Bd. of Control (1909) 131 Ky. 287, 20 L.R.A. (N.S.) 274, 115 S. W. 200; Browder v. Henderson (1919) 182 Ky. 771, 207 S. W. 479; Dunn v. Central State Hospital (1923) 197 Ky. 807, 248 S. W. 216; Zachert v. Louisville (1926) 214 Ky. 132, 282 S. W. 1071; UNIVERSITY OF LOUISVILLE V. METCALFE (reported herewith) ante, 375. Massachusetts.-McDonald v. Massachusetts General Hospital (1876) 120 Mass. 432, 21 Am. Rep. 529; Benton v. City Hospital (1885) 140 Mass. 13, 1 N. E. 836; Young v. Worcester (1925) 253 Mass. 481, 149 N. E. 204. Missouri. Murtaugh v. St. Louis (1869) 44 Mo. 479. - Richmond V. Long Ohio. Overholser v. National Home (1903) 68 Ohio St. 236, 62 L.R.A. 936, 96 Am. St. Rep. 658, 67 N. E. 487. Virginia. (1867) 17 Gratt. 375, 94 Am. Dec. 461; Maia v. Eastern State Hospital (1899) 97 Va. 507, 47 L.R.A. 577, 34 S. E. 617. This exemption from liability, in the case of municipal and hospital corporations, is put upon the ground that, in the case of those physically or mentally ailing, such corporations are acting merely as agents of the state in the performance of a purely governmental or public duty, and, as the state is not liable, neither the municipal nor hospital corporation, while so acting, should be liable. The reason for the rule in the case of hospital corporations is well stated in White v. Alabama Insane Hospital (Ala.) supra, where the court says: "The power of the state to create a body corporate as its agent to carry on certain special kinds of work for its benefit or for the public interest cannot be doubted. And, where this power is exercised, the institution thus established is in every sense a state institution and belongs to the state, although managed and its affairs administered under the supervision of trustees of the body corporate created for that purpose." And in Leavell v. Western Kentucky Asylum (1906) 122 Ky. 213, 4 L.R.A. (N.S.) 269, 91 S. W. 671, 12 Ann. Cas. 827, supra, where it is said: "Appellee [hospital] is purely an eleemosynary institution created by the state and maintained at its expense for the beneficent purpose of caring for such of its citizens as may, by judgment of a court of competent jurisdiction, be declared of unsound mind, and by reason thereof disqualified for the duties of citizenship and of caring for themselves. Such institutions are mere instrumentalities of the state government brought into being to aid in the performance of governmental duty, hence the rule of respondeat superior does not apply to them. Appellee cannot, therefore, be made to respond in damages for a personal injury inflicted upon another by its servant, or a lunatic in its charge, though such injury results from negligence malicious act on the part of such servant or lunatic." And where a hospital is maintained and managed by a municipal corporation, the general rule as to the liability of such corporation for the torts of its officers and servants is followed, as was held in Murtaugh v. St. Louis (Mo.) supra, where the court lays down the rule as follows: "Where the officer or servant of a municipal corporation is in the exercise of a power conferred upon the corporation for its private benefit, and injury ensues from the negligence or misfeasance of such officer or servant, the corporation is liable, as in the case of private corporations or parties; but when the acts or omissions complained of were done or omitted in the exercise of a corporate franchise conferred upon the corporation for the public good, and not for private corporate advantage, then the corporation is not liable for the consequences of such acts or omissions on the part of its officers and servants." In Zachert v. Louisville (1926) 214 Ky. 132, 282 S. W. 1071, supra, the court says: "A municipal corporation is not liable in actions for negligence in the performance of public duties incident to the exercise of its governmental functions, and that persons employed in the performance of such duties by the municipal corporation act as public officers, charged with a public service, and, being mere instruments by which such public duties are performed, that the doctrine of respondeat superior does not apply to such employments. And, as declared in many of the cases decided in this jurisdiction, to hold otherwise and subject the municipality to responsibility for the negligence of such employees would indirectly impose upon it a liability from which it is by law, or consideration of public policy, exempt." And, of course, a county, being a mere political subdivision of the state, is not liable for the torts of its officers and employees, as was held in |