Hill v. President and Trustees of Tualatin Academy and Pacific University

• Decision Date: 12 March 1912
• Citation: 121 P. 901,61 Or. 190
• Parties: HILL v. PRESIDENT AND TRUSTEES OF TUALATIN ACADEMY AND PACIFIC UNIVERSITY et al.
• Court: Oregon Supreme Court

121 P. 901

61 Or. 190

HILL v. PRESIDENT AND TRUSTEES OF TUALATIN ACADEMY AND PACIFIC UNIVERSITY et al.

Supreme Court of Oregon

March 12, 1912

Appeal from Circuit Court, Washington County; J.U. Campbell, Judge.

Action by John F. Hill, a minor, by M.F. Hill, his guardian ad litem, against the President and Trustees of Tualatin Academy and Pacific University and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

This is an action by John F. Hill against the president and trustees of the Tualatin Academy and Pacific University, a corporation, hereinafter called the "University," W.N. Ferrin, and C.S. Kelsey, to recover damages for a personal injury. The averments of the complaint, as far as deemed material herein, are, in effect, that Ferrin is a member of the board of trustees of the University, "and as such has charge of the buildings and grounds of the defendant president and trustees of Tualatin Academy and Pacific University, acting for said corporation"; that Kelsey is employed by the university as janitor, caring for its buildings and grounds, including the campus, describing the entire premises, in performing which duty he was "acting under and pursuant to the instructions of the defendant corporation and the defendant W.N. Ferrin" that plaintiff is a minor four years old and his father, M.F Hill, is his guardian ad litem; that prior to November 13 1909, the defendants, the University, Ferrin, and Kelsey acting in concert, set on the campus at or near an archery course managed by the Maurice Thompson Archery Club a loaded gopher gun in such a careless and negligent manner as to endanger the life and limbs of any person who by invitation, license, or otherwise went upon the course, and the defendants thereafter allowed the gun to remain where it was so placed without covering the instrument or putting up any notice of the danger; that on November 13, 1909, the plaintiff in company with his mother, at the invitation of the defendants, the University, Ferrin, and Kelsey, communicated by the archery club through its president, F.S. Barnes, were upon the campus, and while so lawfully there the gun was discharged, tearing off the index and part of the second finger of plaintiff's left hand, to his damage in the sum of $10,000.

The answer denied the material averments of the complaint, and for a separate defense alleged, inter alia, that the defendant the University at all the times stated is and was a charitable corporation organized by an act of the legislative assembly of the territory of Oregon January 13, 1854, and acts amendatory thereof, filed in the office of the Secretary of State February 20, 1893, and February 23, 1907; that its entire property is held in trust for charitable purposes and the expense of maintaining the benefaction is now and at all times has been paid by donations, tuitions, and the income of trust funds. The reply denied the allegations of new matter in the answer, and, the cause coming on for trial, the plaintiff introduced his evidence and rested, whereupon a verdict was directed for the defendants, except Kelsey, as to whom a voluntary nonsuit was taken, and, judgment having been rendered in accordance therewith, the plaintiff appeals.

W.O. Sims and Geo. R. Bagley (W.O. Sims and Bagley & Hare, on the brief), for appellant.

Milton W. Smith and E.B. Tongue (Milton W. Smith, B.S. Huntington, and E.B. Tongue, on the brief), for respondents.

MOORE J. (after stating the facts as above).

It is contended that the testimony given tended to prove that each of the defendants was a joint tort-feasor, and hence the court erred in directing the verdict that was returned. It is maintained by defendants' counsel, however, that the University holds all its property in trust for charitable purposes, and no recovery could be had against it for alleged negligence of any of its officers or employés, and that the defendant Ferrin is not sued in his individual capacity, but as a representative of the University, and for these reasons no error was committed as asserted.

The testimony shows that the University owns, at Forest Grove, college and other buildings devoted to the advancement of higher education, and surrounding these structures it also owns grounds which are used by the students for field sports and recreation. Its campus is fenced only on one side and in part on each end, and people who are not students are permitted to visit the grounds at all times. Extending diagonally across the southeast corner of the campus, and separated from the main part thereof by a line of railway, the Maurice Thompson Archery Club has been permitted by the University to occupy a narrow strip of ground as an archery course, to which Barnes, the president of the club, with the knowledge and tacit consent of the University, has invited persons who were not members of the club to practice and witness archery. In the fall of 1909, the campus was invaded by gophers, and, in order to destroy them, small loaded guns were placed at the entrances of the tunnels made by these burrowing rodents. The guns referred to have a barrel 4 inches long set in an iron frame, the entire length of the instrument being about 12 inches. A small iron rod, on the point of which is placed a wooden block, projects forward beyond the muzzle, so that a gopher pressing lightly against the piece of wood trips the trigger, with which the iron rod is connected, thereby releasing a strong steel spiral spring surrounding an iron needle, which, forcing the point of the latter against a fulminating cap of a shotgun cartridge, ignites the gunpowder, and discharges the lead shot which the shell contains. The defendant Kelsey in the year 1909 was employed by the University as janitor, whose duty it was to care for the buildings and grounds. He set on the campus several of these guns, and also placed a loaded one at the entrance of a gopher hole near the archery course, the iron breech of the instrument being uncovered and visible. No notice or other warning was put up of the dangerous character of the gun. The plaintiff's mother and her sister accepted Barnes' invitation to visit the course and practice archery, and on November 13, 1909, they took with them to that place the plaintiff, who was then four years old. He was placed on a bench about midway of the course between two targets, while his mother shot arrows from a bow at these marks. While thus occupied, she heard a detonation, and, looking in the direction from which the explosion emanated, she discovered that her son had been injured by a discharge of the gopher gun, which had been placed in the hole near the course.

There were identified and offered in evidence the records of the board of trustees of the University that had been kept since 1848, the by-laws adopted after the passage of the act of incorporation January 13, 1854, rule 12 of which defines the duties of the officers of the corporation, and the record of the meetings of the board held August 9, 1900, and June 18, 1903, showing the election of W.N. Ferrin to the office of president of the University, whereby he became ex officio one of its trustees. Leave was granted to withdraw these records, and to substitute in lieu thereof certified copies of certain pages therefrom, but neither the books nor such copies have been sent up.

The public and private acts of the legislative department of this state will be assumed to be known to the court. L.O.L. § 729, subd. 3. Evidence, therefore, of the incorporation of the University, was not essential to the proper consideration of this cause on appeal. Dolph v. Barney, 5 Or. 191; Ex parte Wygant, 39 Or. 429, 64 P. 867, 54 L.R.A. 636, 87 Am.St.Rep. 673; State ex rel. v. Banfield, 43 Or. 287, 72 P. 1093; Naylor v. McColloch, 54 Or. 305, 103 P. 68.

The act incorporating the University, passed January 13, 1854 (Special Laws passed by the legislative assembly of the territory of Oregon at the fifth regular session thereof, p. 30) "established in Washington county, an institution of learning, for the instruction of persons of both sexes, in science and literature, to be called the 'Tualatin Academy and Pacific University.' " Certain persons were named a body politic and corporate as "the President and Trustees of Tualatin Academy and Pacific University," and they and their successors were authorized to act for it. The act further provided "that the capital stock of said institution shall never exceed five hundred thousand dollars, nor the income or proceeds of the same be appropriated to any other use than for the benefit of said institution as contemplated by this act." Section 8. Amendments were made February 20, 1893 (Special Laws Or.1893, p. 766), and February 23, 1907 (Gen.Laws Or.1907, p. 155), to the act of incorporation, but no important changes were effected thereby. The act referred to manifests a legislative intention to incorporate a charitable institution. In Feoffees of Heriot's Hospital v. Ross, 12 Cl. & F. *507, a fund having been created by bequest for the education of fatherless boys who were freemens' sons of Edinburgh, Ross, who was qualified, applied for admission to the benefits of the charity, but, his application having been denied, he instituted an action against the trustees to recover the damages which he claimed to have sustained. The cause finally reached the House of Lords, where it was determined that, if the charity trustees were guilty of a breach of trust, the person injured by such violation of duty had no right to be indemnified by damages out of the trust fund.

A college, by reason of its eleemosynary nature and its relation to its students, is not liable for a personal injury to a pupil caused by negligence of the superintendent of...