Hordern v. Salvation Army

• Decision Date: 27 September 1910
• Citation: 199 N.Y. 233,92 N.E. 626
• Parties: HORDERN v. SALVATION ARMY.
• Court: New York Court of Appeals Court of Appeals

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.

John Brooks Leavitt, for appellant.

Frederick B. Campbell, for respondent.

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 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 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 education and maintenance of indigent boys were not liable for the injuries caused by their servants, if they used proper care in their selection, stating that the Davis and Smethurst Cases were not controlling, because the question of the exemption from liability by reason of the charitable character of the defendants was raised in neither case. Whether since this last decision Massachusetts is to be placed in the class of states adhering to the doctrine of total immunity may well be doubted. Certainly liability for negligence in the selection of servants may impair the integrity of the trust estate just the same as liability for the negligence of servants, though of course not so frequently.

In several jurisdictions, however, the immunity of charitable corporations for the torts of their trustees or servants has been made dependant on the relation the plaintiff bore to the corporation. In all it is recognized that the beneficiary of a charitable trust may not hold the corporation liable for the neglect of its servants. This is unquestionably the law of this state. Collins v. N. Y. Post Graduate Med. School, 59 App. Div. 63,69 N. Y. Supp. 106;Joel v. Woman's Hospital, 89 Hun, 73, 35 N. Y. Supp. 37. See, also, Pryor v. Hospital, 15 N. Y. Supp. 622, note, and Haas v. Missionary Soc., 6 Misc. Rep. 281,26 N. Y. Supp. 868. It is also the law in this state that there is similar immunity from liability in the case of a charitable institution of a quasi penal character as against an inmate committed to it for punishment or reformation. Corbett v. St. Vincent's Industrial School, 177 N. Y. 16, 68 N. E. 997. That decision proceeded on the ground that the defendant was engaged in the performance of a governmental duty for the benefit of the state in respect to persons committed to its custody and possessed the same immunity as the state. The principle of this case is very much akin to that on which the early hospital cases in Massachusetts were decided. On the other hand, in Rector, etc., of Church of Ascension v. Buckhart, 3 Hill, 193, a recovery against a religious corporation by a person injured by the falling of a church wall was upheld. The authority of this case has never been questioned, and the decision is conclusive against the doctrine of...