Schulte v. Missionaries of La Salette Corp. of Mo.

• Citation: 352 S.W.2d 636
• Decision Date: 11 December 1961
• Docket Number: No. 2,No. 48443,48443,2
• Parties: Arthur SCHULTE, Appellant, v. MISSIONARIES OF LA SALETTE CORPORATION OF MISSOURI, a corporation, LaSalette Seminary, Jefferson City, Missouri, and Missionaries of Our Lady of LaSalette, a corporation, Ipswich, Massachusetts, Respondents
• Court: United States State Supreme Court of Missouri

Page 636

352 S.W.2d 636

Arthur SCHULTE, Appellant, v. MISSIONARIES OF LA SALETTE CORPORATION OF MISSOURI, a

corporation, LaSalette Seminary, Jefferson City, Missouri,

and Missionaries of Our Lady of LaSalette, a corporation,

Ipswich, Massachusetts, Respondents.

No. 48443.

Supreme Court of Missouri, Division No. 2.

Dec. 11, 1961.

Motion to Transfer to Court en Banc or for Rehearing Denied

Jan. 8, 1962.

Anthony P. Nugent, Jr., Kansas City, and Henry BalkenBush, Linn, for appellant; Winger, Nugent & Rayburn, Kansas City, of counsel.

Rozier, Carson & Nacy, Jefferson City, for respondents.

EAGER, Presiding Judge.

Plaintiff filed this suit for personal injuries against Missionaries of LaSalette Corporation of Missouri, LaSalette Seminary, and Missionaries of Our Lady of LaSalette, a Massachusetts Corporation. The record does not show that the second defendant named is a separate entity, but a motion to dismiss was filed in its name. Plaintiff has expressly abandoned the action here as against the last-named defendant. Separate motions to dismiss were filed for each defendant, the trial court found that the petition failed to state a claim upon which relief could be granted, and the petition and the cause were dismissed. Plaintiff, after an ineffectual motion, appealed, but prosecutes the appeal only as against Missionaries of LaSalette Corporation of Missouri, to which we shall hereafter refer as the defendant. In support of its motion to dismiss defendant produced a witness who testified to certain more or less formal facts, none of which are contested. From this it was developed: that defendant, a Roman Catholic Order, owns the property in Jefferson City upon which a boys' seminary is located and operated; that this is operated solely for the training of youths as priests or missionaries to serve both in this and foreign countries; that the sole purpose is to spread the Catholic faith; that those students who are financially able to do so pay $250 per year, plus $25 for books, which does not begin to cover their actual expenses; that some pay less, and some pay nothing; that the Order solicits and receives donations, and the priests in the Order send in sums which they have received; that there is no profit whatever; that the swimming pool where plaintiff was injured (he alleges negligence in failing to warn that the pool was only partly full, and consequently a lack of proper supervision) was maintained for the students and faculty, with perhaps an occasional guest, but with no fees; it was not open to the public. In a rather vague answer this witness stated that he believed they did have a public liability insurance policy. It is in substance conceded that defendant is a true charitable corporation, organized under the 'Benevolent, Religious' etc. statutes in 1948 (Secs. 5436-5465 RS 1939, now Ch. 352, RSMo 1959, V.A.M.S.) and that it has and maintains no commercial activities whatever. Plaintiff was seriously injured but we need not develop that here. Since the suit was for damages in the amount of $125,000, we have jurisdiction.

Plaintiff very frankly attacks our whole doctrine of charitable immunity. Counsel say, in substance: that the rule at its inception in Missouri had no proper basis in law or public policy, that the legislature has in certain enactments declared a public policy to the contrary, and that the rule of stare decisis does not require the court to adhere to the doctrine. Certain more specific contentions will be referred to later.

Our cases declaring the doctrine of immunity are so well known to the Bar that we shall not review them individually in any great detail. In 1907 the Kansas City Court of Appeals decided Adams v. University Hospital, 122 Mo.App. 675, 99 S.W. 453. Therein (in a suit by a patient) it held: that such charitable funds constitute a trust for the alleviation of suffering and should not be diverted to the payment of damages; that patients, as beneficiaries of the trust, accept the benefits of a charity upon an implied assurance that they would assert no complaint against it; and that to permit such diversions would tend to lessen contributions to the charity. In may fairly be said also that the court relied upon what it found to be a sound public policy, relying in part upon opinions which it cited from other states (loc. cit. 456). The Adams case has been followed in the following Missouri cases: Nicholas v. Evangelical Deaconess Home and Hospital, 281 Mo. 182, 219 S.W. 643; Whittaker v. St. Luke's Hospital, 137 Mo.App. 116, 117 S.W. 1189; Roberts v. Kirksville College of Osteopathy & Surgery, Mo.App., 16 S.W.2d 625; Eads v. Young Women's Christian Ass'n, 325 Mo. 577, 29 S.W.2d 701; Stedem v. Jewish Memorial Hospital Ass'n of Kansas City, 239 Mo.App. 38, 187 S.W.2d 469; Dille v. St. Luke's Hospital, 355 Mo. 436, 196 S.W.2d 615; Kreuger v. Schmiechen, 364 Mo. 568, 264 S.W.2d 311 (involving a church); and Blatt v. George H. Nettleton Home for Aged Women, 365 Mo. 30, 275 S.W.2d 344 (establishing an exception for commercial operations). The Missouri authorities up to 1946 are ably reviewed in Dille, supra. The net result of this line of cases has been that Missouri grants immunity from liability in negligence actions to a true charity in the activities and operations of the charity itself, as distinguished from some commercial enterprise in which it may invest its funds and which it operates. Blatt, supra. Missouri has proceeded both upon the trust fund theory and that of a broad public policy; even the waiver theory and the inapplicability of the rule of respondeat superior have been mentioned. But in Dille, supra, this court said (196 S.W.2d loc. cit. 620): 'While the cases seem to treat the two theories, trust fund and public policy, under separate heads, the distinction between them is more apparent than real. At bottom they are the same, the trust fund doctrine being, as some of the cases say, the 'child' or 'offspring' of the doctrine [of] public policy. This is also true as to the nonapplicability of the rule of respondeat superior. The Virginia Supreme Court of Appeals in the St. Vincent Hospital case, supra, [Weston v. Hospital of St. Vincent of Paul, 131 Va. 587, 107 S.E. 785, 23 A.L.R. 907] aptly stated the matter thus: 'The determination of a number of courts * * * that there should be absolute immunity in all cases, and which came to be known as the 'trust and theory,' was nothing more than saying that the immunity was granted from reasons of public policy; that on the whole the public would be best served by the application of this theory.'' And the court there also (196 S.W.2d loc. cit. 616) outlined the differing theories of or reasons for immunity. It may thus be, as plaintiff now so ardently contends, that the real and sole basis of our doctrine of immunity is public policy; the opinion in Blatt, supra, so states. Essentially, this means that the State considers that it is better for the public generally that charities be permitted to continue their activities for the benefit of all the people without depletion of their funds by the payment of the damage claims of certain individuals.

Counsel for plaintiff roundly criticize the doctrine of immunity, and specifically the Adams case. As to the latter, they say that it relied on English dicta later repudiated, that there was no legislation on the subject, and that the opinion had no basis in any 'announced public policy,' but merely expounded the 'personal opinion of a judge.' We may accept, for present purposes, counsel's statement that public policy means that 'no one can lawfully do that which tends to be injurious to the public or against the public good; * * *.' Brawner v. Brawner, Banc, Mo., 327 S.W.2d 808, 812; also, that the expression of public policy should be looked for and found in the 'Constitution, statutes, or judicial decisions of the state or nation, and not in the varying personal opinions and whims of judges or courts, * * *.' In re Rahn's Estate, 316 Mo. 492, 291 S.W. 120, 123, 51 A.L.R. 877, certiorari denied 274 U.S. 745, 47 S.Ct. 591, 71 L.Ed. 1325. But, in the absence of legislation, the courts have the power and the duty to declare the public policy of a state, and for that purpose may, if necessary, look to authorities outside the state. In their criticisms of the Adams case counsel have attributed to Judge Ellison an expressed antipathy to damage claims which is wholly unjustified; what he said was confined solely to the matter of subjecting charitable funds and assets to the payment of such claims. They seem to argue further that because there was no established law on the subject in Missouri in 1907, a declaration of the doctrine by the court was wholly baseless and, presumably, ineffective. If that were true, a court could never declare a matter of public policy in the first instance, without legislation. Questions involving matters of public policy do occasionally confront our courts in a total absence of constitutional or legislative mandates. Landgraver v. Emanuel Lutheran Charity Board, 203 Or. 489, 280 P.2d 301, 302. In those instances they have the right and the duty to declare what they deem to be the public policy, looking to all such sources as are available; and once declared, this is just as binding as a legislative enactment. See, Landgraver, supra, citing numerous authorities. The court in Adams did so, and the opinion is no expression of a mere whim or 'personal opinion.' The court there cited decisions of the courts of several other states in support of its ruling, and we are not particularly concerned with the legitimacy or illegitimacy of the brain child of the House of Lords as expressed in Heriot's Hospital v. Ross, 12 Clark & F. 507; considerable controversy has raged around the English cases and the supposed origin of the doctrine. See, Gregory v. Salem General Hospital, 175 Or. 464, 153 P.2d 837, 844; President and Directors of Georgetown...