Landgraver v. Emanuel Lutheran Charity Bd.

• Decision Date: 09 February 1955
• Citation: 280 P.2d 301,203 Or. 489
• Parties: Larry LANDGRAVER, Appellant, v. EMANUEL LUTHERAN CHARITY BOARD, Inc., a corporation, Respondent.
• Court: Oregon Supreme Court

Page 301

280 P.2d 301

203 Or. 489

Larry LANDGRAVER, Appellant, v. EMANUEL LUTHERAN CHARITY BOARD, Inc., a corporation, Respondent.

Supreme Court of Oregon, En Banc.

Argued and Submitted Nov. 10, 1954.

Decided Feb. 9, 1955.

W. A. Franklin, Portland, argued the cause for appellant. On the brief were Anderson, Franklin & Landye, Portland.

James Arthur Powers, Portland, argued the cause for respondent. With him on the brief was Earle P. Skow, Portland.

Leo Levenson, Maurice D. Sussman, Hess & Hess, Burl L. Green, Hicks, Davis & Tongue, Anthony Pelay, Jr., Norman L. Easley, Krause & Evans, Peterson & Pozzi, Portland, Uney & Jacobs, Oregon City, Schwenn & Brink, Hillsboro, S. H. Burleigh, La Grande, McAllister, Duncan & Brophy, Medford, William Walsh, Cuyahoga Falls, U. S. Balentine, Klamath Falls, and Paul R. Harris, Portland, filed a brief as amici curiae.

TOOZE, Justice.

This is an action for damages for personal injuries caused by alleged negligence brought by Larry Landgraver, as plaintiff, against Emanuel Lutheran Charity Board, Inc., a corporation, as defendant. Judgment on the pleadings was entered in favor of defendant. Plaintiff appeals.

The judgment on the pleadings was granted by the trial court upon the theory that a charitable institution, such as the defendant, was immune to tort liability.

The parties are agreed that the defendant is a charitable corporation, organized under the appropriate laws of this state, and that its funds and income are perpetuated in trust to carry on the charitable purposes for which it was created.

The parties also agree that under the existing law of this state, as announced in prior decisions of this court, the defendant is immune to the tort liability sought to be fastened upon it by the instant litigation. But the plaintiff insists that, in the light of modern conditions, we should re-examine the question of tort liability as it applies to charitable institutions, and adopt a new rule holding them liable for damages for their negligent acts. That presents the only matter before us for decision.

We have, therefore, re-examined the question. Some courts of high repute, including the Supreme Court of our sister state of Washington, have also done the same thing, and in many instances have, in the light of changed conditions, overturned the rule of immunity, expressly overruling their prior decisions in which the doctrine was recognized. This was true with the Supreme Court of Washington: Pierce v. Yakima Valley Memorial Hospital Ass'n, 43 Wash.2d 162, 260 P.2d 765. For a complete discussion of the doctrine of immunity to tort liability enjoyed by charitable institutions, and of the trend of recent court decisions, see Note 25 A.L.R.2d 29. Many sound reasons are given for abrogating the rule of immunity, particularly as it applies to charitable corporations engaged in big business, such as hospitals. Not the least of those reasons is the availability of insurance in this modern age to cover the risks.

The rule of immunity as applied to charitable organizations was established in this state as a matter of public policy. The term 'public policy' is not susceptible to an exact or precise definition. Generally, it is said to be that principle of law which holds that no one can lawfully do that which has a tendency to be injurious to the public or against the public good, 72 C.J.S., Policy, p. 209. It varies with the times, and the public policy at one time may not be the public policy of another time. In Turney v. J. H. Tillman Co., 112 Or. 122, 132, 228 P. 933, 936, we said:

'By reason of the fact that the habits, opinions, and wants of the people vary with the times so public policy may change with them. So because these habits, opinions, and wants are different in different places, what may be against public policy in one state or country may not be so in another. 13 C.J. 427, § 363.'

Primarily, it is the function of the legislature to establish the public policy of the state; it is the duty of the courts to recognize it like any other matter of public law. However, cases may arise covering a field where no direct legislation exists. In such cases, it is for the courts to ascertain the declare what is the public policy of the state. Many factors enter into that consideration. The state's public history, its constitution, its legislation upon kindred subjects, its court decisions, and, in some cases, the constant practices of state officials, are all matters to be considered. But once the court has ascertained and declared that public policy, it becomes the law of the state, and is as binding as a legislative enactment. Bigelow v. Old Dominion Copper Mining & Smelting Co., 74 N.J.Eq. 457, 71 A. 153, 174; Picket Pub. Co. v. Board of Com'rs, 36 Mont. 188, 92 P. 524, 13 L.R.A.,N.S., 1115, 122 Am.St.Rep. 352, 12 Ann.Cas. 986; Cruse v. Fischl, 55 Mont. 258, 175 P. 878; Pike v. State Board of Land Com'rs, 19 Idaho 268, 113 P. 447, 453, Ann.Cas.1912B, 1344; Perry v. United States School Furniture Co., 232 Ill. 101, 83 N.E. 444; Clough v. Gardiner, 111 Misc. 244, 182 N.Y.S. 803; In re Lampson's Will, 33 App.Div. 49, 53 N.Y.S. 531.

From the beginning, the overriding public policy of this state, as evidenced by many legislative acts, has been to protect the assets of charitable institutions from use for any purpose other than that for which they were organized. The legislation of the state exempting such institutions from taxation is one example of the legislative policy.

Exempting charitable organizations from tort liability is but another phase of that same public policy. This court did not establish that policy in this state; it simply declared what it was in the light of the general public policy established by the legislature. Since its first opportunity to discuss the policy as it concerned the question of immunity from tort liability in the case of Hill v. President, etc., of Tualatin Academy, 1912, 61 Or. 190, 121 P. 901, this court has been consistent in approving the doctrine of immunity in general, although it has discussed some exceptions: Gregory v. Salem General Hospital, 1944, 175 Or. 464, 153 P.2d 837; Hamilton v. Corvallis Hosp. Ass'n, 1934, 146 Or. 168, 30 P.2d 9; O'Neill v. Odd Fellows Home, 1918, 89 Or. 382, 174 P. 148. Also see, Wickman v. Housing Authority, 196 Or. 100, 247 P.2d 630. In the Gregory case, our prior decisions were reviewed; we also recognized the attacks made in that litigation upon the doctrine that a hospital is exempt from liability for its negligence. But in the final analysis, we refused to repudiate the rule. We also suggested that a change in the rule, if a change was to be made, was a matter for legislative determination, and not one for the court.

Over the years the legislature has taken no action to overturn the doctrine. By its silence, we may well infer its approval. But, however that may be, there was no occasion for it to act specifically if it was satisfied with the rule. The doctrine had become the firmly established law of this state; a part of the general public policy of the state relating to charitable institutions, and as established by the legislature.

The legislature had the right to assume that the rule would not be changed unless it itself acted.

We are divided in this court as to the proper course that should be taken. Whatever a divided court may decide today may be changed tomorrow, if there happens to be a change in the personnel of the court, or a change of opinion on the part of members of the court as now constituted. The matter is of the highest importance to every charitable institution in Oregon, including hospitals, churches, private schools, organizations such as the Y.M.C.A., Salvation Army, and other charities, as well as to the public at large. In such circumstances, it seems clear that any change in the public policy of this state should be a matter solely for legislative determination.

Judgment affirmed.

LUSK, Justice (specially concurring).

I concur in the judgment of affirmance but solely on the ground that the plaintiff was a patient in the hospital operated by the defendant. I find no legislation in this state touching the subject. The immunity is purely court made and is said to be a part of the public policy of Oregon. But public policy 'is a very unruly horse, and when you once get astride it you never know where it will carry you.' Burrough, J., in Richardson v. Mellish, 2 Bing 229, 252. The opinion of the court in the case at bar expresses a policy of total immunity for charitable corporations from tort liability. I think that this is wrong and that the dissenting opinion of Mr. Justice Brand demonstrates that it is wrong. I am unwilling to be carried so far as to concur in a holding, for example, that a person injured on a public thoroughfare as the result of the negligent operation of an ambulance by the employee of a charitable corporation operating a hospital is without redress against the corporation. That, of course, is not this case. But the language of the opinion could be invoked to support such a ruling. We have held that a patient in a hospital cannot recover against the institution for a tortious injury suffered at the hands of its employees. That is as far, in my judgment, as the public policy goes. That, likewise, is the extent of the immunity (where immunity prevails) under the weight of authority in this country. 3 Scott on Trusts 2151; A.L.I. Restatement, Trusts, p. 1240. I would limit the decision strictly to the issue presented by the pleadings in this case.

BRAND, Justice (dissenting).

I am authorized to state that Mr. Chief Justice WARNER joins in the following dissent.

The plaintiff sued the defendant hospital for negligent injury to his person. Judgment on the pleadings was entered for the defendant, and the plaintiff appeals. The complaint alleges that the Emanuel Lutheran Charity Board, Inc., a corporation, was negligent in administering...