Weiss v. Swedish Hospital , 16 Wash. 2d 446 ( 1943 )

The author of the majority opinion in the case at bar stated, in a concurring opinion in Miller v. Sisters of St. Francis,5 Wash. 2d 204, 105 P.2d 32, that

"I have come to believe that the rule of tort nonliability of so-called charitable institutions has become an anachronism and should be no longer enforced. The only consideration that would cause me to hesitate is that so important a change in our established law ought ordinarily be made by the legislature rather than by the courts. I note, however, that, although this reason was strongly urged by a dissenting justice, it did not deter the supreme court of California from recently abandoning the rule in a case decided some months after our opinion on the first appeal was rendered. Silva v. Providence Hospital ofOakland, 14 Cal. 2d 762, 97 P.2d 798. I further note that, in a discussion of a similar case in 38 Columbia Law Review, 1485, 1489, it is logically contended that, since the rule was created by the courts, it may properly be modified or abandoned by them. Courts, however, rightly hesitate to make major changes in the law without some sort of advance warning or notice.

"It would serve no useful purpose to here set out the reasons why the rule should be abandoned. I think it appropriate, however, to call the attention of the administrative officers of hospitals and other charitable institutions to the fact that the trend in that direction has become very strong, and that it is rapidly increasing in momentum. As indicative of this, I cite the following: Sheehan v. North Country Community Hospital (1937),273 N.Y. 163, 7 N.E.2d 28, 109 A.L.R. 1197; 38 Columbia Law Review (1938), 1485; the Silva case, supra, decided in January, 1940, and comments on the nonliability rule appearing independently in the May 1940 issues of three of our law reviews, to wit: 28 California Law Review, 530; 26 Virginia Law Review, 951; and 1 Washington and Lee Law Review, 257. The next generation of judges will surely abandon the rule if we do not."

It is not a sound basis for the majority opinion that, because in this war period there is a dearth of competent nurses, one is lacking in patriotism or less loyal to his country if he insist that the courts abandon "an anachronism" which "should be no longer enforced" and which "the next generation of judges will abandon if we do not." The second reason — refusal of this court to now concur in the concurring opinion in Miller v. Sisters ofSt. Francis, supra — for continuance of the rule of tort nonliability of so-called charitable institutions, is not a valid excuse for refusal of one to register an honest conviction contrary to the views of a majority. The question is: Should the rule be abandoned? If so, one would stand self-accused if his excuses for concurrence in the majority opinion were the two reasons advanced by the majority.

The rule to which the majority subscribes was judicially promulgated; hence may, and should, be judicially abrogated. The reasons are as clear, cogent, and convincing today for such abrogation as when the concurring opinion in Miller v. Sisters of St. Francis,supra, was written.

It is unnecessary to cite and review each of our numerous opinions which overruled other opinions of this court and enunciated rules deemed more consonant with justice than the prior rules which had been followed many years. Three of the cases in which we announced a rule contrary to precedent and against the so-called weight of authority are the following:

In Tacoma v. Fox, 158 Wash. 325, 290 P. 1010, we overruledState ex rel. Richey v. Smith, 42 Wash. 237, 84 P. 851, 114 Am. St. 114, 7 Ann. Cas. 577, 5 L.R.A. (N.S.) 674 (written a quarter of a century earlier), and held that a city ordinance which prohibited engaging in the trade of a journeyman plumber without first obtaining a license upon establishing competency before an examining board, is within the police power of the city as a regulation for the preservation of the health and welfare of the public.

In Parrish v. West Coast Hotel Co., 185 Wash. 581,55 P.2d 1083, 300 U.S. 379, 81 L. Ed. 703, 57 S. Ct. 578, we sustained the constitutionality of Laws of 1913, chapter 174, fixing a minimum wage for women and children, despite the United States supreme court's declaration that such statutes were invalid as they authorized an unconstitutional interference with the freedom of contract.

In Powell v. Superior Portland Cement, Inc., 15 Wash. 2d 14,129 P.2d 536, we overruled our prior opinions and, contrary to the so-called weight of authority, held that one who purchases property in an industrial community is not entitled to compensation because of dust inseparable from industrial activity in that community.

The legislature of this state adjourned its twenty-seventh regular session March 13, 1941, which was one month prior to filing in this court of the transcript in the case at bar. In August, 1941, this case was assigned for hearing, and was heard, September 11, 1941, by a department of this court and assigned for opinion. In October, 1942, one of the judges of that department died and another judge of the department disagreed with the majority view; this necessitated hearing the case in January, 1943, by the court sitting En Banc. It is now January 25, 1943. It would be unconscionable for me to contribute to further delay of a decision in this cause which has been in the courts two years. I am in accord with the argument in the brief of counsel for appellants, but it would be of no avail, in view of this court's refusal to abrogate the rule, to again attempt to challenge attention to "an anachronism" which "should be no longer enforced." The opinion should be filed in time to afford an opportunity to the legislature, which will adjourn March 11, 1943, to consider the question.

In Canney v. Sisters of Charity, 15 Wash. 2d 325,130 P.2d 899, the plaintiffs failed to sustain the burden of proof.

The judgment should be reversed.