Hordern v. Salvation Army

CourtNew York Court of Appeals
Writing for the CourtCULLEN
Citation199 N.Y. 233,92 N.E. 626
Decision Date27 September 1910
PartiesHORDERN v. SALVATION ARMY.

199 N.Y. 233
92 N.E. 626

HORDERN
v.
SALVATION ARMY.

Court of Appeals of New York.

Sept. 27, 1910.


Appeal from Supreme Court, Appellate Division, First Department.

Action by David Hordern, against the Salvation Army. From a judgment of the Appellate Division (131 App. Div. 900,115 N. Y. Supp. 1125), affirming a judgment entered on a nonsuit at trial term, plaintiff appeals. Reversed, and new trial granted.

See, also, 131 App. Div. 937,116 N. Y. Supp. 1138.


[199 N.Y. 234]John Brooks Leavitt, for appellant.

Frederick B. Campbell, for respondent.


[199 N.Y. 235]CULLEN, C. J.

The action was brought to recover for personal injuries received by the plaintiff, a journeyman mechanic, who was engaged in making repairs on a boiler on defendant's premises. The accident occurred through the defective condition of a runway or staging leading from a door in the boiler

[92 N.E. 627]

room. It is unnecessary to narrate the details of the occurrence. The learned court below was of the opinion that the runway was not of such a character as to warrant an inference of negligence on the part of the defendant in maintaining it. It is sufficient to say that, while it may be conceded that the case is a close one, we are of the opinion that the evidence presented a question of fact for determination by the jury. This statement brings us to the principal question of law presented on this appeal.

The respondent contends that, being a religious or charitable corporation, it cannot be held liable for the torts or negligence of its agents or servants. In other words, that the rule of respondeat superior has no application to such a corporation. That such immunity exists in certain cases is conceded in every jurisdiction so far as our research goes, and in many jurisdictions the immunity is unqualified, existing in all cases, but the extent of the immunity and the grounds on which it rests are the subject of very diverse judicial views. Where the doctrine that the immunity is universal obtains, it is rested on the proposition that the funds of the corporation are the subject of a charitable trust, and that to suffer a judgment to be recovered against the corporation and to subject its property to the judgment would be an illegal diversion and waste of the trust estate. This doctrine has been asserted in Pennsylvania (Fire Ins. Patrol v. Boyd, 120 Pa. 624, 15 Atl. 553, 1 L. R. A. 417, 6 Am. St. Rep. 745), Maryland (Perry v House of Refuge, 63 Md. 20, 52 Am. Rep. 495), Tennessee (Abston v. Waldon Academy, 118 Tenn. 24, 102 S. W. 351,11 L. R. A. [N. S.] 1179), Kentucky (Williamson v. Louisville School, 95 Ky. 251, 24 S. W. 1065,23 L. R. A. 200, 44 Am. St. Rep. 243), Illinois (Parks v. Northwestern University, 218 Ill. 385, 75 N. E. 991,2 L. R. A. [N. S.] 556), and [199 N.Y. 236]Missouri (Adams v. University Hospital, 122 Mo. App. 675, 99 S. W. 453). It is true that in several of these cases the same decision might have been reached on other grounds-grounds of exemption which seem to be recognized everywhere-but the ground on which the learned courts before whom the cases came placed their decisions was the one stated, viz., the general immunity of charitable corporations for the torts of their agents. In Massachusetts the exemption of certain hospitals from liability seems by the opinions of the Supreme Court to have been based rather on the theory that those institutions were governmental instrumentalities than on their character as public charities, though they were recognized as such. McDonald v. Boston Gen. Hospital, 120 Mass. 432, 21 Am. Rep. 529;Benton v. Trustees of City Hospital, 140 Mass. 13, 1 N. E. 836,54 Am. Rep. 436. In the earlier case the plaintiff was a gratuitous patient seeking to recover for negligence of the defendant's employé. In the second the plaintiff, a visitor to a patient in the hospital, sought to recover for injuries sustained in the hospital through the unsafe condition of the stairs. At the same time the Supreme Court held a religious corporation liable to a workman engaged in painting the ceiling of a church, for defective staging (Mulcahy v. Religious Soc'y, 125 Mass. 487), and a similar society liable to a person invited on the premises for their defective condition (Davis v. Congregational Church, 129 Mass. 367, 37 Am. Rep. 368), and still another liable to a traveler on the highway, for having suffered snow to fall upon him from the roof of the church (Smethurst v. Barton, etc., Church, 148 Mass. 261, 19 N. E. 387,2 L. R. A. 695, 12 Am. St. Rep. 550). But in Farrigan v. Pevear, 193 Mass. 147, 78 N. E. 855,7 L. R. A. (N. S.) 481, 118 Am. St. Rep. 484, the same court held that the trustees of an unincorporated charity for the...

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39 practice notes
  • Andrews v. Young Men's Christian Ass'n of Des Moines, No. 44403.
    • United States
    • United States State Supreme Court of Iowa
    • 15 Febrero 1939
    ...because of the fact that it holds its property in trust to be applied to purpose[s] of charity.” In Hordern v. Salvation Army, 1910, 199 N.Y. 233, 92 N.E. 626, 628, 32 L.R.A.,N.S., 62, 139 Am.St.Rep. 893, the plaintiff, a journeyman mechanic, while making repairs on defendant's boiler, was ......
  • Eads v. Young Women's Christian Assn., No. 28541.
    • United States
    • Missouri Supreme Court
    • 11 Junio 1930
    ...v. Woman's Hosp. Assn., 73 N.H. 556, 64 Atl. 190; Bruce v. Central M.E. Church, 147 Mich. 230, 110 N.W. 951; Horndern v. Salvation Army, 199 N.Y. 233, 92 N.E. 626; McInerny v. St. Luke's etc. Assn. 122 Minn. 10, 141 N.W. 837; Armendarez v. Hotel Dieu (Tex.), 210 S.W. 518. (4) The charter of......
  • Roosen v. Peter Bent Brigham Hosp.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 28 Febrero 1920
    ...jurisdictions. Powers v. Massachusetts Homeopathic Hospital, 109 Fed. 294, 47 C. C. A. 122, 65 L. R. A. 372;Hordern v. Salvation Army, 199 N. Y. 233, 92 N. E. 626, 32 L. R. A. (N. S.) 62, 139 Am. St. Rep. 889; Thomas v. German General Benevolent Society, 168 Cal. 183, 188, 141 Pac. 1186. Se......
  • Ramirez v. City of Cheyenne, 1124
    • United States
    • United States State Supreme Court of Wyoming
    • 15 Diciembre 1925
    ...v. St. Luke's Hospital, 122 Minn. 10; 141 N.W. 837; Bruce v. Central M. E. Church, 147 Mich. 230; 110 N.W. 951; Hordern v. Salvation Army, 199 N.Y. 233; 92 N.E. 626; 32 L. R. A. (N. S.) 62. A charitable institution is also liable for damages caused by a nuisance. Love v. Nashville etc. Inst......
  • Request a trial to view additional results
39 cases
  • Andrews v. Young Men's Christian Ass'n of Des Moines, No. 44403.
    • United States
    • United States State Supreme Court of Iowa
    • 15 Febrero 1939
    ...because of the fact that it holds its property in trust to be applied to purpose[s] of charity.” In Hordern v. Salvation Army, 1910, 199 N.Y. 233, 92 N.E. 626, 628, 32 L.R.A.,N.S., 62, 139 Am.St.Rep. 893, the plaintiff, a journeyman mechanic, while making repairs on defendant's boiler, was ......
  • Eads v. Young Women's Christian Assn., No. 28541.
    • United States
    • Missouri Supreme Court
    • 11 Junio 1930
    ...v. Woman's Hosp. Assn., 73 N.H. 556, 64 Atl. 190; Bruce v. Central M.E. Church, 147 Mich. 230, 110 N.W. 951; Horndern v. Salvation Army, 199 N.Y. 233, 92 N.E. 626; McInerny v. St. Luke's etc. Assn. 122 Minn. 10, 141 N.W. 837; Armendarez v. Hotel Dieu (Tex.), 210 S.W. 518. (4) The charter of......
  • Roosen v. Peter Bent Brigham Hosp.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 28 Febrero 1920
    ...jurisdictions. Powers v. Massachusetts Homeopathic Hospital, 109 Fed. 294, 47 C. C. A. 122, 65 L. R. A. 372;Hordern v. Salvation Army, 199 N. Y. 233, 92 N. E. 626, 32 L. R. A. (N. S.) 62, 139 Am. St. Rep. 889; Thomas v. German General Benevolent Society, 168 Cal. 183, 188, 141 Pac. 1186. Se......
  • Ramirez v. City of Cheyenne, 1124
    • United States
    • United States State Supreme Court of Wyoming
    • 15 Diciembre 1925
    ...v. St. Luke's Hospital, 122 Minn. 10; 141 N.W. 837; Bruce v. Central M. E. Church, 147 Mich. 230; 110 N.W. 951; Hordern v. Salvation Army, 199 N.Y. 233; 92 N.E. 626; 32 L. R. A. (N. S.) 62. A charitable institution is also liable for damages caused by a nuisance. Love v. Nashville etc. Inst......
  • Request a trial to view additional results

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