Friend v. Cove Methodist Church, Inc.

• Decision Date: 05 November 1964
• Docket Number: No. 37041,37041
• Citation: 65 Wn.2d 174,396 P.2d 546
• Court: Washington Supreme Court
• Parties: Florence FRIEND and H. D. Friend, wife and husband, Appellants, v. COVE METHODIST CHURCH, INCORPORATED, Respondent.

Page 174

65 Wn.2d 174

396 P.2d 546

Florence FRIEND and H. D. Friend, wife and husband, Appellants, v. COVE METHODIST CHURCH, INCORPORATED, Respondent.

No. 37041.

Supreme Court of Washington, En Banc.

Nov. 5, 1964.

Kahin, Horswill, Keller, Rohrback, Waldo & Moren, David F. Hiscock, Seattle, for appellants.

Frank H. Roberts, Jr., Seattle, for respondent.

ROSELLINI, Justice.

The plaintiffs went to a smorgasbord at the defendant's church as invited members of the public. When they arrived, the line waiting outside the church was so long they decided they did not have time to wait to be served. Returning to the place where their car was parked, they found another car blocking its exit.

Plaintiff wife went back to the line of people waiting outside the church, seeking the owner of the car. A young boy told her the owner was in the kitchen and pointed to a door which he said was the kitchen door. She went to the door, opened it, and stepped inside. When she did so, she fell into a furnace pit and was severely injured.

Plaintiffs brought this action, alleging that the servants of the defendant were negligent in leaving the door unlocked. Their action was dismissed by the trial judge on the authority of Pedersen v. Immanuel Lutheran Church, 57 Wash.2d 576, 358 P.2d 549, wherein this court said, in a per curiam opinion, that the rule is that a benevolent, charitable, or religious institution is not liable for torts of its servants against a patron, in the absence of a showing that it failed to exercise reasonable care in the selection or retention of the servant.

In so holding, we followed the rule of Lyon v. Tumwater Evangelical Free Church, 47 Wash.2d 202, 287 P.2d 128, wherein damages were sought on behalf of a child who was injured through the alleged negligence of the driver of a bus in which she was being transported, without charge, to Sunday school, the bus being furnished by the church. The plaintiff relied upon the case of Pierce v. Yakima Valley Memorial Hospital Ass'n, 43 Wash.2d 162, 260 P.2d 765, an en banc decision in which this court declared that public policy no longer dictates that charitable organizations should be immune from liability for negligent acts of their servants. In that case, the plaintiff was a paying patient at a charitable hospital. In the Lyon case, supra, a department of this court refused to 'extend' the doctrine of that case to a non-paying patron of a church. No reason for this refusal was given.

The propriety of that departmental decision was not considered or discussed in Pedersen v. Immanuel Lutheran Church, supra, since it was not challenged. We said:

'The appellant recognizes and accepts the doctrine of charitable immunity as applied by this court. Were that doctrine challenged, this court might be inclined to re-evaluate it, but we cannot properly decide the case upon an issue which has not been raised or argued.'

In the case before the court at this time, the correctness of the decision has been challenged; and the plaintiffs earnestly contend that the doctrine of Pierce v. Yakima Valley Memorial Hospital Ass'n, supra, was improperly limited in Lyon v. Tumwater Evangelical Free Church, supra. There is merit in this contention.

The doctrine of the Pierce case, supra, was not by its language limited to cases involving paying patrons of charitable hospitals. On the contrary, the reasoning of the court and the statement of the doctrine which it adopted made no distinction between paying and nonpaying patients or between hospitals and other kinds of charitable organizations. On p. 169 of 43 Wash.2d, on page 769 of 260 P.2d of the opinion, this court said:

'The almost unanimous view expressed in the recent decisions of our sister states is that, in so far as the rule of immunity was ever justified because of the need of financial encouragement and protection changed conditions have rendered the rule no longer necessary. * * *'

This is a broad statement, applying to all charitable organizations. The authorities cited in support of it are cases wherein the defendants were hospitals, colleges, and churches. In further discussion of this question of public policy, we said, at p. 171, 260 P.2d at p. 770:

'Perhaps the best way of determining whether the charitable institutions of today need the 'encouragement and stimulation' which immunity affords, is to examine what has happened to them in jurisdictions where the immunity rule does not prevail. We have found nothing in the decisional law of this country to indicate, by statistics or otherwise, that undue hardships or calamities have befallen them. This same observation has frequently been made by other courts and text-writers. See Cohen v. General Hospital Soc., 113 Conn. 188, 154 A. 435; President and Directors of Georgetown College v. Hughes (76 U.S.App.D.C. 123, 130 F.2d 810), supra; Foster v. Roman Catholic Diocese (116 Vt. 124, 70 A.2d 230, 25 A.L.R.2d 1), supra; 34 Yale Law Journal 316, 322; 38 Columbia Law Review 1485, 1486; 25 A.L.R.2d 29, 63, annotation.'

Again, the authorities cited involve suits against a hospital, a church, and a college.

Having observed that generally, charitable institutions are well endowed financially and many of them even subsidized by the government in one way or another; that liability insurance is available at reasonable cost; that there is much diversity of opinion among the courts as to whether 'public policy' does require that charitable institutions should be given immunity, we said at page 173, 260 P.2d at p. 771 'If we were to judge the question before us solely upon a factual basis--whether there still prevail the conditions or circumstances which led our court, in 1918, to find that public policy required immunity--the considerations discussed above strongly indicate a negative answer. When we add to these considerations the searching criticisms which have been leveled at the justness and legal soundness of the rule, its repudiation seems almost compelled. In this connection, we cannot do better than quote the best summary of these criticisms which has come to our attention.

"In addition to the grounds relied upon in rejecting the specific theories in support of the immunity, the courts advocating abandonment of the immunity rule have pointed out that this rule found its way into the law through misconception or misapplication of previously established principles; that it is doubtful whether the administration of justice has ever been well served by the rule; that, in any event, the rule has become outmoded and is an anachronism; that it is a principle of law, as well as of morals, that men must be just before they are generous; that a charity should not be permitted to inflict injury upon some without the right of redress, in order to bestow charity upon others because the result would be to compel the victim to contribute to the charity against his will; that the law's emphasis generally is on liability, rather than immunity, for wrongdoing, and that, in particular, the modern tendency of the law is to shift the burden from the innocent victim to the community at large, and to distribute losses incurred by individuals through the operation of an enterprise among all who benefit by it rather than to leave them wholly to be borne by those who sustained them; that immunity tends to foster neglect while liability tends to induce care and caution; that all persons, organizations, and corporations stand on an equality before the law, and all should be bound alike or excused alike; that the charitable nature of a tortfeasor cannot place it beyond the law applicable to all; and that protection of life and limb by organized society is of greater importance to mankind than any species of charity and is superior to property rights.' 25 A.L.R.2d 29, 58, annotation.'

There is no indication that these criticisms apply only where the victim is a paying patron of a hospital. On the contrary, such an artificial distinction is implicitly rejected in this language. Later in the opinion, this court expressly rejected the validity of any contention that the immunity should be lifted only in certain cases. At p. 175, 260 P.2d at p. 772, we said:

'Thus in this state, as elsewhere, the immunity rule has been 'devoured' with exceptions. Moreover, the very fact that in Washington and fifteen other jurisdictions the immunity rule is applied only in certain classes of cases, argues strongly against its application in any case. If the financial security of charitable institutions--their 'encouragement and stimulation'--does not require immunity in case of injuries to employees, invitees and strangers, or injuries caused by negligence in selecting personnel and providing equipment, why does it require immunity where a patient is injured due to the negligence of a nurse?

'The answer is so obvious that one would expect to find courts of last resort turning away from the immunity rule in their more recent decisions. This is exactly what has happened. * * *'

We then determined that, inasmuch as the doctrine was created by the court and not by act of the legislature, the court could properly repudiate it.

While the express holding of the case was that,

'* * * a charitable, nonprofit hospital should no longer be held immune from liability for injuries to paying patients caused by the negligence of employees of the hospital. * * *'

there was no statement that the holding should be limited to such cases, and the language of the decision does not permit such an interpretation.

It is significant that text writers found in the case an unqualified rejection of the doctrine of charitable immunity. For example, see 2 Harper & James, Law of Torts § 29.16, p. 1667, etc.; Prosser (2d ed.) Torts § 109, p. 788.

The defendant has advanced no sound reason why the conclusion reached in Pierce v. Yakima Vally Memorial Hospital Ass'n, supra, should not be given its full import. The reasons given in that...