Hungerford v. Portland Sanitarium & Benev. Ass'n

• Decision Date: 05 September 1963
• Citation: 235 Or. 412,384 P.2d 1009
• Parties: Wayne E. HUNGERFORD, by his Guardian ad litem, Emory D. Hungerford, Jr., Appellant, v. PORTLAND SANITARIUM & BENEVOLENT ASSOCIATION et al., Respondents.
• Court: Oregon Supreme Court

Page 1009

384 P.2d 1009

235 Or. 412

Wayne E. HUNGERFORD, by his Guardian ad litem, Emory D Hungerford, Jr., Appellant, v. PORTLAND SANITARIUM & BENEVOLENT ASSOCIATION et al., Respondents.

Supreme Court of Oregon, In Banc.

Argued and Submitted July 1, 1963.

Decided Sept. 5, 1963.

Byron Glade Birch, Portland, argued the cause for appellant. With him on the briefs were Duncan & O'Brien, Virgil Colombo and Frances M. Dudleston, Portland.

William F. Thomas, Portland, argued the cause for respondents. With him on the brief were Hollister & Thomas and Raymond J. Conboy, Portland.

Before McALLISTER, C. J., and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, JJ.

GOODWIN, Justice.

This is a charitable-immunity case. The only issue is whether the court should now overrule its earlier decisions which conferred upon charitable enterprises immunity from liability for the torts of their servants.

The facts are not remarkable. The plaintiff brought an action for damages for injuries caused by the negligence of a nurse's aide employed by the hospital. We will assume that, for the purposes of this case, the defendant Portland Sanitarium & Benevolent Association is a charitable hospital. Accordingly, if immunity should be law, the hospital would be entitled to its benefits.

Our latest decision fully exploring the problem is Landgraver v. Emanuel Lutheran, 203 Or. 489, 280 P.2d 301 (1955). The majority of this court was then of the opinion that the charitable-immunity exception to the general law of torts was a settled rule and that it ought not to be changed by the court. The dissenting opinion, Brand, J., weighed each of the arguments for such immunity with the arguments against it. Immunity was then, and is now, in general retreat elsewhere. Mullikin v. Jewish Hospital Assn. of Louisville, 348 S.W.2d 930 (Ky.1961), contains a recent review of the cases. The obsolescence of charitable immunity likewise has been well documented by text writers. See 2 Harper and James, The Law of Torts 1667-1675, §§ 29.16, 29.17 (1956); Prosser and Smith, Cases on Torts 722 (3d ed. 1962). We conclude that expediency no longer justifies adherence to a dying doctrine.

Inasmuch as we are now of the opinion that the Landgraver case must be overruled, we are confronted with the holdings that this particular change in the law of torts ought to be made, if at all, by the legislature. See, e. g., Landgraver v. Emanuel Lutheran, supra, 203 Or. at 493-494, 280 P.2d at 302-303; Gregory v. Salem General Hospital, 175 Or. 464, 483, 153 P.2d 837 (1944). Cf., Note, 31 Or.L.Rev. 78 (1951), and Note, Hospital Liability in the New York Court of Appeals: A Study of Judicial Methodology, 61 Col.L.Rev. 871 (1961).

Accordingly, it is necessary to deal with the issues arising out of both stare decisis and the proper function of this court in evolving the law of torts.

It is argued that, once having been of the opinion that a particular reform in the law of torts ought to be made in the legislature, this court is forever bound to remain of that opinion, wrong though it may have been. However, it is neither realistic nor consistent with the common-law tradition to wait upon the legislature to correct an outmoded rule of case law. See Pierce v. Yakima Valley etc. Ass'n, 43 Wash.2d 162, 180-182, 260 P.2d 765 (1953) (concurring opinion of Grady, C. J.). Nor is legislative silence as instructive as was supposed in the Gregory and the Landgraver cases. Legislative indifference to remedies for private wrongs may be common enough in times when the assembly is occupied with a multitude of matters of grave public concern, but failure to enact a bill is not one of the constitutional methods by which the assembly makes law. Constitution of Oregon, Art. IV, § 25. See Hart, Comments on Courts and Lawmaking, in Legal Institutions Today and Tomorrow 40, 46 (Paulsen ed. 1959).

As was said by Desmond, J., in a decision which, overruling an earlier case, established the right to recover for prenatal injuries:

'* * * Negligence law is common law * * *.

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'* * * Legislative action there could, of course, be, but we abdicate our own function, in a field peculiarly nonstatutory, when we refuse to reconsider an old and unsatisfactory court-made rule. * * *' Woods v. Lancet, 303 N.Y. 349, 354-355, 102 N.E.2d 691, 27 A.L.R.2d 1250 (1951):

We must likewise reject the defendant's contention that stare decisis binds us absolutely to the past. The pull of stare decisis is strong, but it is not inexorable. See State v. Mellenberger, 163 Or. 233, 260, 95 P.2d 709, 128 A.L.R. 1506 (1939), which marshalled the authorities and concluded that, even in a criminal case, if the former decision is shown to be clearly in error it ought not to be followed. And see Woods v. Lancet, supra, where, in answer to stare decisis, the court said:

'* * * Of course, rulses of law on which men rely in their business dealings should not be changed in the middle of the game, but what has that to do with bringing to justice a tortfeasor who surely has no moral or other right to rely on a decision of the New York Court of Appeals? * * *' 303 N.Y. at 354, 102 N.E.2d at 694.

When litigants come into court, they expect the court to apply to their case the best rule of law available to the court. The fact that a rule has been followed for fifty years is not a convincing reason why it must be followed for another fifty years if the reasons for the rule have ceased to exist. Charitable immunity came to Oregon in Hill v. Tualatin Academy, 61 Or. 190, 121 P. 901 (1912). Its history in this state is reviewed in the dissenting opinion in the Landgraver case.

Ordinarily, in this state, as in most others, the growth of the law of private wrongs has been by judicial decision. See, e. g., Cowgill, Adm'r v. Boock, Adm'r, 189 Or. 282, 302, 218 P.2d 445, 19 A.L.R.2d 405 (1950) (concurring opinion by Rossman, J.), and Keeton, Creative Continuity in The Law of Torts, 75 Harv.L.Rev. 463 (1962). Tort law in 1963 differs from tort law in 1863 for the most part because of the work of the courts. When courts have recognized the need for remedies for new injuries, the remedies have been found. For example, liability-without-fault is imposed upon carefully conducted but hazardous operations employing explosives, Bedell et ux. v. Goulter et al., 199 Or. 344, 261 P.2d 842 (1953), and upon those employing dangerous aerosols, Loe et ux. v. Lenhardt et al., 227 Or. 242, 362 P.2d 312 (1961). To the extent permitted by the state constitution, government is now being held responsible for its wrongs. Vendrell v. School District No. 26C et al., 226 Or. 263, 360 P.2d 282 (1961). We find no continuing reason for adherence to the immunity rule for charities.

Upon trial below, the jury awarded the plaintiff a judgment against the negligent servant, but was instructed to return a verdict in favor of the hospital. The verdict established the fault of the servant and the measure of damages. There is no question that the negligent servant was working within the scope of her employment. It will be proper upon the remand to enter judgment n. o. v. for the plaintiff against the hospital.

Reversed and remanded.

ROSSMAN, Justice (dissenting).

When the prevailing opinion terminates the exemption of charities from tort liability and subjects them to the same responsibility as industrial enterprises, hospitals will not be the only charities that will bear the brunt of the new order. This court held a half century ago that a charity which was engaged in educational work was immune from tort liability: see Hill v. Tualatin Academy, 61 Or. 190, 121 P. 901. That decision is today overruled. Let us pause for a moment and observe that that decision recognized liability in favor of the plaintiff upon the part of the negligent servant and every negligent officer and trustee of the charity. That part of the decision is not overruled by today's decision. The holding in the Tualatin Academy case merely refused to apply the doctrine of respondeat superior against the charity. The fact that a charity receives no profit or other advantage from its operations is a good reason for distinguishing it from commercial cases in which the doctrine renders the principal liable for the torts of its employees even though the principal did not participate in the tort. We will presently return to that distinction. There are a score or more of charities in addition to hospitals and educational institutions that will feel the effect of today's decision. That statement is not made to render the decision of the majority difficult, but because it serves to illustrate the position which these dissenting views favor. Some of the many charities which will be affected by the new order of events are the Boy Scouts, the Salvation Army, the Y.M.C.A. and our numerous children's homes. Each one of them is now liable for the acts of any member of its staff whether he is a volunteer or a paid employee. It is well known that much of the work of organizations such as the Boy Scouts, the Red Cross, and the Y.M.C.A. is performed by volunteers.

From this day on the rule of respondeat superior will be applied to all charities although in many other phases of our daily activities the principal is not liable, in the absence of statute, for the torts of his subordinates. For example, a public officer, in the absence of statute, is not liable for the wrongs committed by his deputies. Vendrell v. School District No. 26C et al., 226 Or. 263, 360 P.2d 282, in so holding, quoted the following from Antin v. Union High School District No. 2, 130 Or. 461, 280 P. 664, 66 A.L.R. 1271:

'* * * The relation of master and servant, or of principal and agent, does not exist in such cases, and hence the doctrine of respondeat superior does not apply between the directors and such persons.'

The following is taken from Restatement of the Law, Trusts, § 402 b:

'If in the administration of a...