Smith v. Congregation of St. Rose

• Decision Date: 30 December 1953
• Citation: 265 Wis. 393,61 N.W.2d 896
• Parties: SMITH, v. CONGREGATION OF ST. ROSE.
• Court: Wisconsin Supreme Court

Page 896

61 N.W.2d 896

265 Wis. 393

SMITH, v. CONGREGATION OF ST. ROSE.

Supreme Court of Wisconsin.

Dec. 30, 1953.

Rehearing Denied March 2, 1954.

Action by the plaintiff Catherine Smith to recover damages from the Congregation of St. Rose for personal injuries sustained as a result of slipping and falling on an icy sidewalk. Defendant demurred to the complaint and the trial court by order dated October 2, 1952, overruled the demurrer. Defendant has appealed from such order.

The following facts are alleged in the complaint.

Defendant is a religious corporation and the owner of the premises situated at the southwest corner of North 30th and West Michigan streets in the city of Milwaukee, and among the buildings situated thereon is a rectory. This rectory is situated about fifteen feet south of the public sidewalk running along the south side of West Michigan street. It has a porch with a slanted roof on the north end, which roof has gutters on the north, east and west sides, with a downspout at the northeast corner of the porch roof and another downspout in the center of the east portion of such roof. There are four steps to the porch, and there is a cement walk from the porch steps, which slopes and leads to the public street sidewalk, there being three steps from the house sidewalk to the public street sidewalk. On the 13th of February, 1949, as the plaintiff was walking in an easterly direction on the public sidewalk in front of the rectory, she slipped on a layer of ice on such public sidewalk approximately eighteen to twenty-four inches in width and from two to four inches thick and extending completely across such sidewalk, thereby causing the plaintiff to fall and to be severely injured.

Paragraphs 6 and 7 of the complaint contain the following allegations:

'6. That the defendant by its servants, agents and employees was negligent in that it allowed and permitted the rectory used by said defendant to be equipped with defective gutters and with a defective downspout, as set forth previously, which said downspout was either clogged or in otherwise defective condition so that it did not permit the water to drain down the same; so that the water from the melted snow on the roof of the porch referred to herein overflowed the gutter to the north of said premises, flowed onto the cement walk and over the cement walk onto the said public sidewalk and across the said public sidewalk, and that the said water subsequently froze prior to the said 13th day of February, 1949, causing a dangerous condition for any persons walking upon said public sidewalk.

'7. That the said defendant by its servants, agents and employees knew or should have known that said water flowing over said public sidewalk would freeze and become dangerous to the users of said public sidewalk and to the public at large and would result in a hazardous condition for pedestrians and users of said sidewalk.' (Italics supplied.)

Emmet Horan, Milwaukee, for appellant.

N. Paley Phillips, Milwaukee, for respondent.

CURRIE, Justice.

This court has repeatedly held that charitable and religious corporations are not liable for the negligent acts of their employees or agents. Morrison v. Henke, 1917, 165 Wis. 166, 160 N.W. 173; Bachman v. Young Women's Christian Ass'n, 1922, 179 Wis. 178, 191 N.W. 751, 30 A.L.R. 448; Schumacher v. Evangelical Deaconess Society, 1935, 218 Wis. 169, 260 N.W. 476; Baldwin v. St. Peter's Congregation, 1953, 264 Wis. 626, 60 N.W.2d 349. The learned trial judge in his memorandum opinion in the instant case acknowledges that this rule of immunity would prevent plaintiff from recovering from the defendant congregation on a cause of action grounded upon negligence, but held that the complaint did state a cause of action for damages sustained as the result of a nuisance and that such rule of immunity therefore did not apply.

This court has long held that persons sustaining damages as the result of a nuisance caused or permitted by a municipal corporation are entitled to recover against the municipality even though such nuisance was created as a result of acts performed by the municipality in its governmental capacity, where the relationship of governor and governed did not exist. Harper v. City of Milwaukee, 1872, 30 Wis. 365; Hughes v. City of Fond du Lac, 1889, 73 Wis. 380, 41 N.W. 407; Robb v. City of Milwaukee, 1942, 241 Wis. 432, 6 N.W.2d 222; and Holl v. City of Merrill, 1947, 251 Wis. 203, 28 N.W.2d 363. The limitation, that in order to hold the municipality liable for damages sustained as a result of nuisance the relationship of governor and governed must not exist, would have no application to charitable or religious corporations. From the standpoint of public policy we can perceive no reason why charitable and religious corporations should be granted immunity from responding in damages for nuisances created or permitted by them if municipal corporations are denied such immunity. This question of immunity of charitable and religious corporations for nuisance is apparently one of first impression in this state.

Counsel for defendant contends that the historical reasons for granting immunity to charitable and religious organizations for the tortious acts of their agents or employees differs from those applicable to municipal corporations. For a learned discussion of the various reasons which have been advanced by courts for granting immunity to charitable and religious organizations see the recent decision of the Washington supreme court in Pierce v. Yakima Valley Memorial Hospital Ass'n, Wash.1953, 260 P.2d 765. We find it unnecessary to explore into this question of historical beckground because this court has long felt that the reasons for granting such immunity to charitable and religious organizations, as well as to municipal corporations, are archaic, and, if this court were not bound by the rule of stare decisis but were passing on the question for the first time, we would accord very little weight to the historical reasons originally advanced in support of the rule of immunity. However, we feel that it is for the legislature and not this court to change the rule of immunity at this late date after its wide acceptance over the years in the prior decisions of this court.

On the other hand, when we consider the question of the advisability of extending the rule of immunity to charitable and religious corporations for nuisance we do not feel that we are bound by any rule of stare decisis. The courts in a number of other jurisdictions have permitted recovery against charitable corporations and organizations of damages resulting from the maintenance of a nuisance. 10 Am.Jur., Charities, p. 688, sec. 140, and Annotation 25 A.L.R.2d 29, 52.

Therefore, we are of the opinion that if there are sufficient allegations in the complaint to spell out the maintenance of a nuisance by the defendant congregation, the complaint does state a cause of action. This makes it necessary to analyze the allegations of the complaint from that standpoint. It is the theory...