Landgraver v. Emanuel Lutheran Charity Board, Inc. , 203 Or. 489 ( 1955 )

TOOZE, J.

This is an action for damages for personal injuries caused by alleged negligence, brought by Larry Land-graver, 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 Tinder 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 P2d 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 ALR2d 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 CJS 209, Policy). 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, 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 and 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 NJ Eq 457, 71 A 153, 174; Picket Pub. Co. v. Board of Com’rs., 36 Mont 188, 92 P 524, 13 LRANS 1115, 12 Ann Cas 986, 122 Am St Rep 352; 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 NE 444; Clough v. Gardiner, 182 NYS 803, Ill Misc 244; In re Lampson’s Will, 53 NYS 531, 33 App Div 49.

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. 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 P2d 837; Hamilton v. Corvallis Hosp. Ass’n. (1934), 146 Or 168, 30 P2d 9; O’Neill v. Odd Fellows Home (1918), 89 Or 382, 174 P 148. Also see Wickman et al. v. Housing Authority, 196 Or 100, 247 P2d 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 T.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.