Kaufman v. American Youth Hostels, Inc.

Citation177 N.Y.S.2d 587,6 A.D.2d 223
PartiesJerome KAUFMAN, individually and as Administrator of the Estate of Lynn Kaufman, Deceased, Respondent, v. AMERICAN YOUTH HOSTELS, Inc., Appellant.
Decision Date08 July 1958
CourtNew York Supreme Court Appellate Division

Lillian E. Cuff, New York City, for appellant.

William A. Hyman and Harold W. Hayman, New York City, for respondent.

WENZEL, Justice.

It is alleged in the complaint that appellant, a domestic corporation which is engaged in conducting groups of youths on tours, conducted and led a group of children, including respondent's 15-year-old daughter, on a climb of Mount Hood in the State of Oregon. The children fell down the mountain and respondent's child died as a result of her injuries. Respondent has brought this action for damages, under sections 30.010 and 30.020 of the Oregon Revised Statutes, in his separate capacities of father of the child and administrator of her estate.

The defenses which have been struck out are that the appellant is an eleemosynary institution and is therefore immune from liability (first defense) and that the child and her parents executed an agreement, prior to the commencement of the tragic trip, purporting to release appellant from liability (third defense).

The sufficiency of the first defense must be determined according to the law of Oregon, since it is the law of the place where the alleged tortious wrong was committed that governs the question of whether the actor is liable (Polar v. Bourjois, Inc., 298 N.Y. 62, 80 N.E.2d 334). On the other hand, the sufficiency of the third defense must be determined according to the law of New York, since that is the State which had the most significant contacts with the matter in dispute (Auten v. Auten, 308 N.Y. 155, 160, 124 N.E.2d 99, 101, 50 A.L.R.2d 246).

Despite the trend to the contrary, Oregon has steadfastly adhered to the rule, albeit by a divided court of last resort, that an eleemosynary institution is exempt from liability for its acts of negligence (Landgraver v. Emanuel Lutheran Charity Board, 203 Or. 489, 280 P.2d 301, followed in Ackerman v. Physicians and Surgeons Hospital, 207 Or. 646, 288 P.2d 1064, decision withdrawn and changed on other grounds 207 Or. 646, 298 P.2d 1026). However, in all the reported cases on the subject in the Supreme Court of Oregon the institution under consideration was an Oregon corporation and therefore the court did not have occasion to state categorically that its rule of immunity extended to all eleemosynary institutions, including those which had been incorporated in another State and even though such other chartering State itself would deny immunity to its corporations for torts committed in its State.

Respondent has seized upon the facts that the trend is against the granting of immunity, that New York, the State in which appellant was incorporated, has finally rejected the doctrine of immunity in toto (Bing v. Thunig, 2 N.Y.2d 656, 163 N.Y.S.2d 3), that Oregon has never categorically indicated that it would extend its rule to a New York corporation, and that even the highest court of Oregon has been divided on the general question of immunity, as just above stated, to urge that it should be held that Oregon would not give appellant, a New York corporation, the benefit of its rule of immunity.

In our opinion it is clear that Oregon was motivated, in adopting its rule of immunity, solely by the good works of eleemosynary institutions and a desire to thwart curtailment of such works which would necessarily result from imposition of liability in tort upon such institutions. With this as the sole consideration, we believe that the fact that an institution had been incorporated in another State, and even in a State which itself has a contrary law of liability, would be completely irrelevant in Oregon.

The transcendence of the eleemosynary factor was marked in Gregory v. Salem General Hospital, 175 Or. 464, 482, 153 P.2d 837, 844, by the passage: 'Universally there is reluctance to render anyone liable for an injury to another which he inflicted while engaged unselfishly in helping others', and in Landgraver v. Emanuel Lutheran Charity Board, supra, in these words [203 Or. 489, 493, 494, 280 P.2d 301, 302]:

'From the beginning, the overriding public policy of this state * * * has been to protect the assets of charitable institutions from use for any purpose other than that for which they were organized.

* * *

* * *

'* * * The matter of the highest importance to every charitable institution in Oregon, including * * * organizations such as the Y. M. C. A., Salvation Army'.

The reference to the 'Y. M. C. A.' and the 'Salvation Army' in the Landgraver case, supra, is an express allusion to the irrelevance of the place of incorporation of the subject institutions, for it is well known that the said two institutions are national organizations, not necessarily incorporated in every state in which they operate, or even in Oregon.

Further on the subject of the place of incorporation, and also more generally on the question of whether an act of incorporation is even a condition for application of a rule of immunity, it was upon the very occasion that the Supreme Court of Oregon first pronounced a rule of immunity as the law of that State, in Hill v. President & Trustees of Tualatin Academy and Pacific University, 61 Or. 190, 121 P. 901, that that court in effect indicated that the fact that the sovereignty which had granted a corporate charter to the subject institution was foreign to the forum, or that the institution was even a corporation, would be irrelevant factors, for it cited with approval Currier v. Trustees of Dartmouth College, C.C., 105 F. 886, affirmed on other grounds 1 Cir., 117 F. 44, which involved Dartmouth College, a corporate entity whose charter had been granted by the British Crown, and was decided by a Federal District Court, and Farrigan v. Pevear, 193 Mass. 147, 78 N.E. 855, 7 L.R.A.,N.S., 481, which involved an institution that was not a corporation. In both the Currier case, supra, and the Farrigan case, supra, the doctrine of immunity was applied in favor of the subject institutions.

Two United States District Courts were confronted with precisely the same issue in two cases in which accidents occurred in States which exempted charitable institutions from tort liability, and in each case the exemption was held to shield foreign, as well as domestic, corporations (Hinman v. Berkman, D.C., 85 F.Supp. 2; Jeffrey v. Whitworth College, D.C., 128 F.Supp. 219). In the Hinman case, supra , the accident occurred in Missouri and the defendant was a New York corporation. The court flatly held that the defendant 'may take advantage of the exemption so granted by that laws of that State [Missouri], though its liability under similar circumstances may be otherwise by the laws of its domicile.' In the Jeffrey case, the accident occurred in Idaho and the defendant was a Washington corporation. The fact is that Washington had recently renounced its own rule of immunity (see Pierce v. Yakima Valley Memorial Hospital Ass'n, 43 Wash.2d 162, 260 P.2d 765), but on the question of whether Idaho would have been concerned with what the law of Washington was, the court wrote : 'there is not the slightest indication' in the several opinions in a certain leading Idaho case on the subject of immunity of charitable institutions (Wilcox v. Idaho Falls Latter Day Saints Hospital, 59 Idaho 350, 82 P.2d 849) 'that the Idaho Court would apply a different rule to foreign charitable corporations and deny them immunity. Other courts have allowed foreign corporations immunity without any consideration or discussion of the question whether the corporation in the particular case enjoyed immunity under the law of the place of its incorporation' (citing Webb v. Vought, 127 Kan. 799, 275 P. 170; Young v. Boy Scouts of America, 9 Cal.App.2d 760, 51 P.2d 191; Hinman v. Berkman, supra).

In the Webb case, supra, an Illinois corporation was involved, the Salvation Army of Wichita. In the Young case, supra, it was an institution which had been created by an act of Congress. Reference has already been made hereinabove to the fact that in the Hinman case, supra, the court was actually concerned with a New York corporation. Another case in which the immunity rule of the forum was...

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