*1 September 1, 1953.] En 32488. Banc. [No. Valley Memorial Yakima Pierce, Appellant,
Martha Hospital Association, Respondent.1 Hazel, for appellant. Harry Martin, M. Kendrick and George &
Gavin, Robinson respondent. Stedman, Etter, Lewis L. R. Max Holst & Hopp,
Tonkoff, Cluck, curiae. amici Elliott, and Jack R. Henry a single question, presents J. This appeal Hamley, charitable, nonprofit of a a patient Where paying namely: of a negligence reason injuries sustains hospital from the damages hospital? recover nurse, such may patient 1Reported in 260 P. alleged, negligence hospital act consisted of the of a injecting foreign plaintiff’s
nurse in left substance into causing pain permanent injury. arm, It not al- leged that defendant failed to se- exercise due care guilty lection nurse, or retention that was *2 negligence,” what been has termed “administrative such proper equipment. the failure to furnish complaint. The trial court sustained a demurrer to the dismissing plead Plaintiff further, declined to and an order prejudice accordingly the action with entered. Plain- appeals. tiff
The trial court followed the to course available past in of the In view decisions of this a court. line of cases extending from Richardson v. Carbon Hill Coal Co., 6 Wash. Clampett 52, 32 1012, 1893, Pac. decided to v. Sisters of Charity, (2d) (2d) 17 652, Wn. 136 P. 729, 1943, decided in uniformly hospital this court held a that charitable showing negligence not, the absence of a of selec- the neg- tion or retention of its doctors or liable nurses, for the ligence employees treating patient. of such a immunity,
Under this rule of it has im- been held to be patient paid hospital the material for his service. Magnuson 75 Warner, 470, Wharton v. 135 235; Wash. Pac. Hospital, 399, 99 Swedish Wash. 169 Pac. Tribble v. 828; Missionary Heart, Sisters the 326, Sacred 137 242 Wash. 372; Mohr, Pac. Miller v. 198 Wash. 89 619, 807; P. Canney Charity, (2d) 325, v. Sisters 15 Wn. 130 P. 899; Weiss v. 446, Swedish Wn. 133 P. (2d)
Appellant asks ús overrule these decisions and with- the draw from charitable institutions cloak of protects them which from such now suits. not the first time
This is we have been asked to re-ex- immunity. discard amine and Logging Co., In v. Hamilton Pac. Simon Wash. was before us in we declined to do so. Magnuson Hospital, supra, v. Swedish decided in inquiry. an we entered into such Our decision in that case predicated to adhere the rule was four factors: which, placed upon us; the rule of stare decisis constraint legislature repudiate had not seen fit to the fact that the fact the “over- rule; court-made whelming” weight authority immu- .elsewhere favored nonliability nity;. that the rule of serves and view expressed public policy. This latter view was sound these words: may application cases of the rule to individual “While regrettable, are there harsh the result sometimes seem may
very not be a the same few doctrines of law which light equal with truth. When viewed said the indi- however, convinced that vision, broader we are wrought many hardships vidual offset times over encouragement the rule of nonli- stimulation which pri- gives ability maintenance to the establishment and charity halt, vate institutions devoted care suffering the lame relief of blind, and the those 408) physical (p. affliction.” disease and mental *3 again In our 1939, to court was asked re-examine ground the earlier on the that cases. declined to do so We long immunity consistently for a rule had been followed weight period, “greater” of was in accord the with (2d) authority. 807. Mohr, 619, 89 P. Miller v. 198 Wash. The v. before cause action Miller Mohr was of involved in (2d) again Francis, us in Miller v. 5 Wn. 1940. Sisters St. of (2d) majority 105 P. 32. The declined to review 204, appeal. question This which had been decided on the first immunity question rule the the whether would include of Judge Judge Robinson, with whom be adhered to. should agreeing concurring opinion. Simpson agreed, filed a While opinion majority the law the became the that former with Judge expressed that, the view were Robinson case, the disregard opinion, liberty he former would the court at the by (but reason) the result reached favor for a different still quoting: majority. reason is worth His non-liability the rule tort to believe that “I have come become an anachro- institutions has charitable of so-called longer considera- no enforced. should be nism important a that me is so cause to hesitate that would tion by ordinarily ought made be in law our established
165 legislature note, the that, rather than however, the courts. I although strongly urged by this reason a was dissent- ing justice, supreme it did deter the court California recently abandoning the rule a decided some case opinion appeal months after our on the first rendered. was Hospital (2d) Oakland, Silva 97 P. Providence 14 762, Cal. (2d) I further that, note of a discussion similar Review, 1485, 1489, case in 38 Columbia it Law logically that, contended since was created rule may properly courts, it or abandoned them. modified rightly changes major Courts, however, hesitate make warning the law without some sort of advance notice. purpose “It would no useful to here set out serve why appro- reasons rule it should be abandoned. I think priate, call however, to the attention of the administrative hospitals officers of and other charitable institutions to the very strong, fact that the trend direction become increasing rapidly and that it As momentum. indicative following: Country this, I cite the v. North Com- Sheehan munity (1937), Hospital 28, Y. 273 N. N. E. (1938), L. 1197; 1485; A. R. Silva 38 Columbia Review Law January, supra, case, decided in and comments non-liability appearing independently May on the rule reviews, 1940issues of three our law towit: 28 California Virginia 951; Review, 530; Review, Law Law and 1 Wash- ington generation Review, and Lee Law 257. The next judges surely (pp. will abandon the rule if not.” dowe 213-4)
The last we time were asked abandon the was 1943. Weiss v. Swedish Wn. year, 133P. decided that held Judge rule should be adhered to. Robinson wrote opinion, Judges and Blake Millard dissented. The majority gave adhering following reasons to the rule: *4 great diversity “When we consider the of variant rules might adopted, which at the same time be and remember dealing apply that rule with which not we are does to hospitals churches, institutions, alone to but educational organizations, general, M. in A.’s, and, Y. C. welfare social to organizations engaged philanthropic, various benevo- lent, work, and it is once that charitable at manifest complete particularly rule, abandonment, in the would its unimagined far-reaching perhaps, and, unintended and consequences. hospitals our Furthermore, are almost existing desperate only training Of our schools nurses. regard just forcibly been reminded this we have
needs nearly hundred wounded the recent arrival five at Seattle many far-flung one battle fronts.” men from but of our 454-5) (pp. ap- past indicates, and above of our decisions review The pellant reason which our concedes, that the substantive one upon justifying the im- relied as court had advanced and “public broadly munity labeled has been rule, is which expression policy.” this reason finds- Even substantive Magnuson v. Swedish of our one decisions— policy.” using “public supra, actually term without —and policy public was there advanced consideration “encouragement nonliability because desirable gives worthy charitable institu- a rule stimulation” such tions.
The fact that the rule in state is based this policy public thirty- upon a declaration made our court ago significance determining years whether we five re-examine the rule. now The factors should policy any public is based—the relevant factual situation thinking They change of the times—are not and the static. ways change, looking things and as at conditions as Judge Hays supreme change. for the said, Iowa, court of As repudiating the rule announced in earlier two cases: Iowa “ policy’ simply recognized by policy means that ‘Public determining acts unlawful or what unde-
the state contrary being public injurious sirable, policy adopted good. quiescent public but A It is not active. being good, today public Ten in the unlike the Command- thing. necessarily ever-enduring As times an ments, is ” changes policy. change, prospectives . . . so Presbyterian Hospital Haynes 1269, 1272, Ass’n, Iowa (2d) N. W. appropriate, lapse after believe it therefore
We Magnuson pub- decided, to re-examine of time since light present conditions announced, there lic thinking. present-day
167 so, however, Before it doing will be profitable review background historical rule reasons, other than which have been advanced public policy, in its support.
It should first be noted “immunity that we the term use rule” as a merely matter of The “rule” is that convenience. one is liable for his negligent or tortious conduct. President and Directors Georgetown College v. Hughes, 130 F. 810, 812. The “rule” is that charity no defense to tort. Harper, Torts, 200, 81; 2 Prosser, Torts, 194-7, 32; Restate- § § Torts, ment of 873-884, 323-325. from suit §§ granted charitable in institutions, actions involving tortious conduct, is an to these rules. exception when a
Ordinarily, court decides abandon a modify rule of long court-made it starts out standing, by saying that “the reason for the rule no case, exists.” In this it is longer correct to say that “reason” for the rule originally given of immunity never did exist.
The doctrine from tort declaring charities be immune v. liability was first McDonald in in pronounced this country Mass. General Mass. Am. Rep. decided in 1876. It was there charity held that the funds of a in trust, held the diversion of which the courts will not permit.
As its
rule,
sole
authority
Massachusetts court
v. St.
cited
Holliday
Leonard’s,
142 Eng.
de-
Reprint
cided in
England
1861. The
Holliday
case had followed
dictum Findlater,
Duncan v.
Cottenham,
Lord
7 Eng.
934, handed
Reprint
down
Chancellor
Cottenham had uttered similar dictum in The Feoffees of
Ross,
Heriot’s
Hospital
Eng. Reprint 1508. But
dictum of the Duncan
case was overruled
1866 (Mersey
Gibbs,
Docks Trustees v.
11 Eng.
Reprint 1500), and
Holliday case
1871. Foreman v. Mayor of
reversed
Q.
Canterbury,
L.
R.
resurrected after it was repudiated England. today, ghost and the dictum
Even of Lord Cottenham’s many espouses, theory trust stand behind fund immunity rule. the court decisions which announce their bolstered Other courts which adhere to *6 reasoning other other theories. Most of these theories with theory holding groups, the doctrine into four follows: fall respondeat superior inapplicable institutions; to charitable of protection theory of entitled to the that such institutions are immunity; theory implied governmental of of theory policy. public assumption of risk; waiver or probably said, all of true, as some courts It is just rest theories, mentioned, the one last these and not policy. public conceived to be a sound what some have Ray 186; v. Y.M.C.A., 374, 284 N. W. v. 226 Iowa Andrews (2d) 220; P. Center, 72 Ariz. Tucson Medical Dille (2d) 615; 355 Mo. 196 S. W. v. St. Luke’s Hughes, College Georgetown v. and Directors President supra. for non- reasons The formulation these individual product liability appears of ra main, a be, thus public that' the conclüded tionalization. Those who had satisfy way, immunity thereby found interest demanded reaching ing v. result. Andrews themselves, for this supra; Journal Y.M.C.A., 34 Yale Law reasoning theories, of these the criticisms behind each them, at and the extent to which have been leveled rejected by accepted they courts this have been exhaustively country, documented elsewhere. have been Hughes, Georgetown College v. and Directors President supra; 29, annotation. A. L. R. supporting were referred to above theories
Some of Hospital, supra, Magnuson but mentioned Swedish they our court. found favor with indication that without reason which indicated, substantive As before theory public upon by court is the basic relied been purpose here policy. no useful therefore serve It will theories. It of these other into a detailed discussion enter leading say text au- decisional will suffice to dealing examined, and we them have been with thorities provides convinced that none of such theories a sound or logical immunity. basis the rule of turn,
We then, to a public consideration of the asserted policy which demands that charitable institutions im mune from reasoning a case such as this. The policy briefly behind this declaration of Mag stated in quoted nuson and comprehensive above. A more state ment of this tois be found Foster v. Roman Catholic Diocese, 116 Vt. 124, 70 A. 230, 25 A. L. R.
follows: injury
“Its essence that suits for deple- would cause a charity, thereby tion of the depriving funds of the public rights of its benefit and that the of the individual who is injured to redress should be subservient to the interest of the general public preservation institution; that it is tages many better that one rather than suffer; that advan- public outweigh the detriment to the individual injured.” 133) (p. who has been
Are the factual conditions and circumstances this declaration supposed of was based—the need of “encouragement charitable institutions for the and stimula- tion” nonliability (as which the rule of in affords we said Magnuson) they same now in as were 1918,when we —the (and considered) policy? announced last expressed The almost unanimous view in the recent de cisions of our sister in that, states is so far the as rule of immunity justified was ever because of the need of financial encouragement protection, changed and conditions have longer necessary. rendered rule no the Silva v. Providence (2d) (2d) (1939); 14 762, Cal. 97 P. 798 President Georgetown College Hughes, (2d) and Directors v. 130F. of (1942); Durney Hospital (Del. Ct.), Sup. 810 v. St. Francis (1951); (2d) 83 Fathers, A. v. Wendt Servite 332 Ill. (1947); App. (2d) Haynes Presbyterian 618, 76 N. E. v. Hospital (2d) Mississippi Ass’n, 1269, 241Iowa N. 151; 45 W. Baptist Hospital (2d) Holmes, 906, v. 214 Miss. 142, 55 So. (2d) 12; 709, 56 So. 25 A. L. R. Foster v. Roman Catho Diocese, 124, 230, lic 116 Vt. 70 A. 25 A. L. R. (1950). Haynes recognition case, In the of fundamental change prompted in the conditions which formulation of the expressed is these words: charity theory the of “No doubt at outset the need for the way suffering urgent treatment of of the and general good society encouragement of demanded thereof. being charity hospitals, particular At that so-called time relatively us, which we have before were few in number and by solely by and were created conducted funds donated public spirited people. open Their all alike doors were ability pay. irrespective little, race, color, There was creed or granted grant- any, paternal if The care the state. ing liability negligence of their encouraging employees may proper been basis for as a charity. such “Today vastly different. The the situation business grown They hospitals today has into an enormous one. large by statute, assets, free, much of it tax own and hold paternal employ many persons. The has become state astonishing degree, as evidenced numerous statutes an chapter 250, Soldiers, Relief for Code, found our such chapter Support Marines; Poor; Sailors; and County chapter chapter Pa- Homes; Tuberculous Surgical chapter Persons. In- Treatment of tients; Medical and judicial digent notice exten- take Also we hospital many types insurance, as well sive use Thus it is evident institutions. insurance changing changed and are now the busi- times have legal for and worlds. basis ness, social, economic encouragement longer existent.” no the need of such 1273-4) (pp. referred to which is conditions
The same basic supra, Hospital Haynes Presbyterian Ass’n, unquestionably in this state. occurred cases, other cited *8 acting through people whole, a as which the The extent to years, government, agencies assumed have, in recent their of formerly hospital responsibility needs for the health and by by reference to donors, clear is made borne individual following subjects, relating all statutes the state county Magnuson and state decided: enacted since survey seq.; hospital funds, et RCW tuberculosis 70.32.010 hospital seq.; public et dis- construction, RCW 70.40.010 and RCW 70.46.010 et seq.; tricts, 70.44.010; health districts, RCW state otologist, RCW 70.50.010 et seq.; cerebral palsy pro- et gram, RCW 70.82.010 medical seq.; services for indigent Ses., Laws of Ex persons, 10; health chapter p. et children, measures school seq. RCW 28.31.020 No invidious are intended implications compari- son of the role of thirty- with those of present-day hospitals years five or more times ago. hospitals today, The past, serve a is essen- a function which purpose perform tial and backing financial indispensable. The which attention neither has been called reflects discredit upon nor their day public- institutions spirited backers. It is economic changed simply product conditions and new conceptions public responsibility. recognize,
We not all course, that present-day hospitals are well-financed, there large and that some hos- pitals which render a deal of today great gratuitous service. This is true especially of church-maintained institutions and service, which render those such as Children’s Ortho- special of Seattle. Nor pedic Hospital do we overlook the fact that with which we are principles dealing have application Y.M.C.A.’s, also to such organizations Y.W.C.A.’s, and Red organizations Cross. Such have benefited much than less economic hospitals changed conditions and social out- look. concerned, are here how- with which we public policy be conditions and the aver-
ever, general must based upon designed situation. It cannot to meet age exceptional cases or deal with instances particular hardship. whether the chari- way determining best
Perhaps the need the today “encouragement institutions table examine immunity affords, is to what stimulation” where the immunity to them jurisdictions has happened found de- nothing We have prevail. does indicate,' statistics or country law of this cisional undue or calamities have befallen otherwise, hardships been made frequently This observation same them. text writers. See Cohen v. General Hospital courts and other *9 172
Soc., 113 188, 435; Conn. 154Atl. President and Directors of Georgetown College Hughes, supra; v. v. Roman Foster supra; 322; Catholic 38 Diocese, 316, Yale Law Journal (2d) 29, 63, 1485, 1486; Columbia Law Review 25 A. L. R. annotation. alleged complaint case,
In the in the instant respondent hospital fully protected liability insur is judgment paid. appellant ance for would be However, the fact that an institution individual defendant protection, wholly has, have, or does not is immaterial such determining liability. taking liability in insurance none Sus could create no before existed. where Young Ass’n, 487, 495, v. mann Men’s Christian Wash. great regard accords 172Pac. 554. Our view this with the weight authority. 29, 139. See 25A. L. R. by liability protection
The fact afforded insurance generally never- to charitable institutions is is now available appropriate question is consideration, for where the theless public policy, whether, as a matter of such institutions need immunity. Baptist Hospital supra; Mississippi Holmes, v. Hughes, Georgetown College and Directors President Rutledge pointed Judge supra. case: As out latter charity concerned, far as is is the stake, is so “What at protection, the amount of insurance cost of reasonable premium finances, the award- burden on its as an added 824) (p. ing damages of its entire assets.” over worthy other circumstance of note
There is one public justification appraising a dec the factual present-day rule. need laration that charities supreme Hampshire has policy, of New court Public thoroughly developed, persistent, upon a said, must be based public Memo Welch v. Frisbie mind. and united state If facts H. A. rial 90 N. public policy tending declaration favor a warrant well-recognized, clearly we established were among expect general agreement the courts to find would policy. favor of such perhaps much diver- true. There
But the reverse any question question sity judicial opinion as on on this country appellate with- which the courts of the have been may Ample confronted. documentation for statement this be found 25 A. L. R. where the annotator makes comment: n *10 surprising “It is to find within the several states of that ‘public policy’ requires the rules so inconsis- United States denying any immunity, conflicting tent the rule the and granting exemp- granting immunity, complete rule rule the charity’s property execution, and rules trust tion granting immunity and kinds of limitations under various qualifications.” solely upon judge question
If we were to the before us prevail a factual there the conditions basis—whether still or court, to find that circumstances which led our public immunity policy required considerations dis- —the strongly negative answer. we cussed above indicate a When searching add to these which considerations the criticisms legal justness of the have been leveled at the and soundness repudiation compelled. rule, con- its seems almost summary quote nection, cannot do the we better than best attention., of these criticisms which come to our grounds upon rejecting “In relied the addition specific support immunity, theories in of the the courts ad- vocating pointed rule abandonment of the through way out that found its into the law mis- this rule previously prin- conception misapplication of established ciples; whether the administration of that it is doubtful by justice that, in rule; the been well has ever served anachronism; an event, outmoded and is has become principle morals, men law, as of that it that is a well charity they generous; just that a should must be not right before injury permitted without the be, some inflict to charity upon others bestow redress, in order to compel to con- to the victim result would be because the empha- charity against the law’s will; his that tribute to the sis wrong- immunity, liability, generally than rather is on tendency particular, doing, modern that, in innocent victim to from the is to shift the burden law large, community incurred losses and to distribute at among enterprise through operátion of an individuals wholly to them leave rather than-to benefit it all who that.immunity tends them; by those who sustained borne neglect foster to while tends to induce care and persons, organizations, corporations caution; all that equality on stand alike or an the law, before and all should be bound alike; excused charitable nature of a tort- place beyond applicable all; feasor cannot the law to protection society organized that greater limb life and charity importance any species to mankind than rights.” superior property and is annotation. L. R. 25 A. dealing disparity among im- decisions with
munity rule has been referred above as an indication well-recognized public there is no factual basis for such a among twenty-seven policy. that, states which The fact regard grant immunity, to certain sixteen do so with types negligence plaintiffs, also seri- or certain classes of ously logic of the rule. undermines immunity, jurisdictions grant partial
Among these charity respect patients, grant but with some *11 immunity respect patients; grant to paying with not some strangers; patients, invitees, or servants, or but not some all regard negligence grant immunity an em- of with some employees negligence ployee, of or in the selection not but equipment. providing other of There are numerous the immunity way rule in the and refinements the modifications Georgetown applied. and Directors President has been College Hughes, supra, pages of (2d) A. 817-818; 25 L. R. v. 29, 142. nonliability is available state, rule of the
In our own patients brought beneficiaries, i. e., respect to suits with Charity, hospital. 5 Heckman v. Sisters of a the case in of (2d) beneficiaries, there is (2d) 593. As to 699, 106 P. Wn. negligence the in se- of institution the where no immunity retaining employees proximate is of lecting a cause or its 648, Co., 10 Hill Coal Wash. injuries. Carbon v. Richardson Ferry-Baker 658, Co., 57 Lumber Wash. v.Wells 95; Pac. 39 470, 135 Pac. Warner, 75 Wash. v. Wharton 869; Pac. 107 Logging Pac. 370, 76 136 Co., Wash. Hamilton Simon v. 235; (2d) 4. 269, 43 P. 181Wash. Luke’s v. St. 361; Bise immunity the institution this state where is there Nor negligence, by “administrative” guilty of some is proper equipment. Miller v. Sisters St. to furnish failure of Clampett (2d) (2d) 204, 105 32; P. Sisters Francis, 5 Wn. (2d) (2d) Charity, latter 729. This 136 P. Wn. apply immunity exception rule, however, does not to the chargeable patent. case, the is In such the defect where obviously employee negligence used an who is that Charity, Canney appliance. v. Sisters Wn. defective particular (2d) applying 130 P. ex immunity questions fact ception rule, nice some injury by defec was caused arisen as to whether negligent proper equipment. equipment use tive Charity, 136 P. v. Sisters Wn. Jankelson See Charity, supra. Clampett v. Sisters 720; .state, elsewhere, Thus in this rule has exceptions. very been Moreover, “devoured” fact with jurisdictions Washington that in and fifteen other the im- munity applied only cases, rule is in certain classes of ar- gues strongly against application If its case. security financial of charitable institutions —their “encour- agement require immunity stimulation” —does injuries employees, strangers, invitees, case of or in- juries by negligence selecting personnel and'pro- caused viding equipment, why require immunity does where a patient injured negligence due to the of nurse? expect so that one find answer is obvious would turning away courts of last resort from the exactly in their more recent decisions. This what interesting happened. It is to note that Magnuson nonliability opinion, we stated that favored “overwhelming” weight authority. Twenty-one *12 (2d) years Mohr, later, Miller v. 198 Wash. 89 P. “greater” weight authority. 807, modified this to the we In 133P. Weiss v. Swedish Wn. years (1943), majority four later found the 978, decided we immunity impressive. opinion In less in favor of still “broadly speaking, that, more of the ad stated states was followed than to other.” here to the rule we have of other American state and territorial courts If the roll today question hospital on the of whether a called immune from under the facts of the instant would be suit Twenty- following: that it case, believe would show we immunity; twenty deny grant im- courts would would six munity; territory the result four states and one would be doubtful. immunity grant Arkansas, are:
The courts which would Kentucky, Lousiana, Indiana, Kansas, Connecticut, Idaho, Michigan, Maryland, Missouri, Ne- Massachusetts, Maine, Jersey, Carolina, Ohio, Ore- York, North braska, New New gon, Pennsylvania, Carolina, Texas, Island, Rhode South Wyoming. Only Virginia, Virginia, Wisconsin, and West immunity. complete eight states shown italics immunity apply rule, York, In the courts do not New this kind in a such, as but reach the same result case hospital holding, nurses law, a matter of hospital. employees patient In Rhode rather than the of the In statute.- rule is established Island, the apparently Maryland, over- the court-made carries the institution in cases where come statute County liability Board Com- Thomas v. See insurance. (Md.) missioners, A. 452. deny immunity Alabama, would are: which The courts California, Colorado, Delaware, Alaska, Arizona, District Georgia, Illinois, Iowa, Minnesota, Florida, Columbia, Hampshire, Mississippi, Dakota, Oklahoma, North New Utah, and Vermont. four of these Tennessee, Rico, Puerto Georgia, Illinois, jurisdictions and Tennessee— Colorado, — only against judgment can be had non- on such execution property, insurance. such trust jurisdictions must be classified as doubtful The five Montana, Hawaii, Mexico, New call are a roll such on reported found, are to cases Dakota, no where South reported provides re decision no the one Nevada, where that court would on what decide indication liable A., Y. question. Bruce v. M. 51 Nev. See precise C. Pac. the basis of which the above on decisions
Most
177 summary (2d) are collected in A. 29,143-200, 25 L. R. based following very, § But see, also, 39. recent cases: Moats Charity Providence, v. 13 546; Sisters Alaska Roman of Keenan, Catholic Diocese Tucson v. 20, 74 Church Ariz. (2d) County 455; 243P. Thomas v. Board Commissioners, supra; (2d) (Minn.) Hauser, Moeller v. N. 639; 54 W. Wil- Randolph Hospital, (2d) (N.C.) Inc., v. 303; liams 75 S. E. Valley Hospital (2d) Fisher v. Ohio Ass’n, Gen. 73 E.S. (W. Va.) Hospital 667; Meade v. Charleston, St. Francis (2d) (W. Va.) 74 E.S. 405. judicial thinking, formerly gave
Thus, American
“overwhelming” acceptance
immunity
to the'
rule, now
gives
very
majority.
that doctrine a
modest
indicates,
This
away
of course, that the trend of recent decisions has been
nonliability.
Since the Weiss case was
1943,
decided in
jurisdictions
immunity
four
abandoned
and,
process,
Ray
have overruled earlier decisions. See
(2d)
Center,
v. Tucson Medical
72
22,
Ariz.
230
220;
P.
Haynes
Presbyterian Hospital
v.
241
Ass’n,
1269,
Iowa
45
(2d)
Mississippi Baptist Hospital
151;
N. W.
Holmes,
v.
214
(2d)
(2d)
906,
Miss.
142,
12;
55 So.
25 A. L. R.
Taverez v.
Lodge,
San Juan
Four other have, the same rejected immunity impression. rule as a matter of first Charity supra; See Moats v. Providence, Sisters Rick beil Deaconess 74 525, N. D. 23 N. W. Grafton (2d) A. 99; 166 L. R. Foster v. Roman Catholic Diocese (2d) Vermont, 116 70 1; Vt. A. 25 A. L. R. Durney Hospital (Del. Ct.), Sup. v. St. Francis 83 A. (not resort). During ten-year period, a court of last appellate joined group no court has which favors im munity, impression either as a matter of first over ruling rejected earlier decisions which that doctrine. among
Opinion scholars uni- outside courts almost formly supports against the doctrine of that of immunity. Bogert, 2A Trustees, 241-254, See Trusts and Harper § § 401; Torts, 655-658, 294; Torts, on Prosser on § 108; and 1079-1085, numerous law review articles listed support partial in A. L. for a rule of R. Some § Scott, Trusts, 402, found in Treatise on Dame and Notre Law Review 107. today justifi-
It is our conclusion that there is no factual principles this, cation for a case such as and that *14 logic, justice the mantle law, and intrinsic demand that immunity be withdrawn. argued regardless for that, is of these reasons But it immunity denying case, facts of the instant we under the require to overrule a not do because it would us should so argued long past if there is line of decisions. It is also any partial complete of that rule after to be or abandonment by legislative years, accomplished it all these should be action and not court decision. legis- public policy upon our rule is based is which functioning pertains not to the It
lative character.. justice, eco- but to broad the administration of courts and equipped are not Courts nomic and considerations. social investigation general and ascertain the facts a to conduct necessary general public policy to a determination adversary char- does-the life and action. Nor such areas of undertaking. litigation an lend itself such acter of court expressed Many for the view that courts have policy legislature, courts, to establish a not for the and liability. exempting tort See the authorities charities (2d) 29, in A. L. R. collected having previously function, undertaken this However, having court-declared is no that our now concluded why compelling longer reason we to be no valid, there seems legislative our courtroom closed We for action. must wait open legislative help, and we can likewise without doors necessary courts be slow to exercise a It is them. they simply exer- have been fast to judicial function because legislative has said: one. one writer As a cise immunity granted charitable have “The courts legislative usurped function organizations appear have making changes in the declaring public policy law of in accord strange for these same It would therewith. legislatures to reverse for and wait courts to sit back judgments the the value courts have made.” Columbia Law Review, 1485, 1489. previously courts,
Several noted, back, not sat waiting legislative repudiated have, but action, without for they formerly rules which had announced and applied. depart contention,
This same that the court should not nonliability from a rule of which it had invoked but should legislature, rejected leave this was made Borst Borst, Wn. 251 P. 149. What we there quoted equally applicable said, below, here: sight suggestion “We have not that the courts .lost legislative should wait until there is for sanction such an property action. There is involved here no rule of nonliability benefiting par- contract, a rule but persons ticular class of in actions ex delicto. There is no statutory sanction rule of absolute an- supra [37 Roller, nounced in Roller v. Wash. 79 Pac. *15 purported 788]. The reasons for the absolute rule have analysis, been found, on to be without merit. The true legislature, role of the liability situation. under the circumstances, is to restrict host-guest
if so, to in chooses do as it did the proposal open the Where is to the of the doors quite court, them, rather than to close the courts are com- petent Judge to act for themselves. As Desmond said in recent Lancet, 349, case of Woods v. 303 N. Y. 102 E. the N. (2d) dealing suggestion: 691, with a similar “ ‘Legislative could, action there of course, be, but we peculiarly function, abdicate our own in a field nonstatu- tory, unsatisfactory when we refuse to reconsider an old and ” (p. 657) court-made rule.’ immunity Borst, we overturned a rule of which had doing expressly disapproved and, so, stood since 1905 early Roller, the decision of Roller v. 37 Wash. 79 Pac. 788. The the Borst case reached a result con decision trary by great majority to the rule followed the of decisions dealing subject so, there with under review. It did here, on basis of an examination of the reasons we do generally-accepted discovery rule and the behind the they also, See, without merit. ex rel. Paschall v. are State (2d) Scott, 247 P. 543. Wn. opinion hospital nonprofit charitable,
It is our that a longer liability injuries no held immune from for should be paying patients by negligence employees caused to hospital. previous holding contrary Our decisions hereby overruled. judgment
The remanded, directions reversed and with to overrule the demurrer.
Mallery, Olson, Schwellenbach, Weaver, Finley, JJ., concur. (concurring) Grady, C. J. in the result reached concur —I majority opinion reasoning upon which it is and the overruling usually opposed I
based. cases been which we have rule has declared a rule law and such long period been relied I have and acted for a of time. changed, if, reason, believed that be should change legislature, especially such should be made relating public expressed policy. if the rule one I my Martin, view in dissent in the recent case of Hutton experience However, Wn. 252 P. that, demonstrated when legislatures strong opposition involved, are faced with change by rule, those who are beneficiaries such proponents of a find efforts to secure corrective legislation futile. When such a arises and situation courts have the rule should no convinced become longer justification exist, there is for action to be taken them. phase rule involved this case has to,
been the situation I have referred and I am convinced *16 accomplished it should be modified and this can be by My upon the I court action. conclusion is based view always person that, a under- entertained whenever duty negli- performance of act or if takes the some gently performed might harm another, done or cause to upon legal obligation imposed him the to.exercise there doing performing or reasonable care such act or duty, by guide accepting that, sole fact rather than a the the meeting particular and some doctrine is with criticism accepted thought. such trend of courts have (dissenting) very not J. shall issue with take —I Hill, thorough majority desirability opinion as to the and able change I of the achieved. do insist that a a doctrine result public policy which has become fixed as matter of should sought legislature, regardless be from the of the reason Hagerman which the is made to rest. Seattle, (1937). 1152, A. L. Wash. 66 P. R. Long part to the rule on the adherence negligence, their charitable institutions from legislature rule, to interfere refusal with acceptance public policy. have resulted its as a The ma- jority frankly recognize say public such, it as but it is bad they change policy to intend it. my persuasively opinion, soundly argued but,
It public policy that, since the court established the now erroneous, to deemed it should not hesitate to it. by subsequent This court did not its initial or decisions consciously public policy; this field undertake to establish a attempted apply principles it of the common law as by them be, understood to a situation not covered existing legislation. The rule which it laid down is now a public policy. matter of
Actually, legislature public can determine matters of policy positive (acquiescence either action or inaction courts). in rules laid down The courts were not policy-making bodies, intended as and their limitations for readily apparent. They the exercise of such a function are retroactively litigants; act and without notice to but the legislature only prospectively acts and after all inter- parties opportunity have had an ested to be heard. presents,
The instant case it seems to me, an excellent why example changes public the courts should leave legislature. hearing only litigants After directly indirectly, affects, on a matter which hundreds organizations they of charitable and of which have had no majority legislature notice, does what the would not be *17 permitted change public policy do, i.e., the of the state post ex facto. expressed by majority,
The views the if unanswerable upon presented legislature by the merits, should be parties. my opinion, justifica- the interested inis, There no change by tion for a the court a doctrine which has be- public policy. come fixed as a matter of (dissenting) sixty years J. court this Donworth, —For consistently policy encouraging oper- has followed the nonprofit corporations by limiting charitable, ations of liability their negligence patrons for to their to situations where they instrumentality had direct control over the which injury.- they words, In other caused the have been held only negligence negligence liable for administrative incompetent employees. in the or retention of selection separate during past thirty court on This five occasions years consistently policy holding refused to its negli- corporations patrons are not liable to for the that such manage- gence employees over conduct the of those whose only remote control. ment has thought policy encouraged has been that this the or- It ganization operation enterprises limit- of charitable negligence employees ing for the of their their this manner.
Casting majority decisis, doctrine of stare aside the present inform us not that there is no in the case now any longer reason for .the declared our decisions any sixty years, past but that there never was sound of the place. apparently, have, rule first We basis for the during piled time error error because we did all this Cottenham’s dictum 1861had been that Lord not realize English repudiated decisions. later origin majority regardless error, But present opinion to abandon its determination our bases proposition private policy upon long-established government displaced paternalistic charity has been (as long as free charitable services will furnish financially able), hospitals, taxpayers and that chapters, Boy other Scouts, Red Cross A.’s, M. C. Y. encouragement. longer any organizations need do similar sup- my opinion, proposition without factual this present time. port state at majority adopted Parenthetically, the new *18 (a patient not only paying is applies term which opinion to a original therein), still that the I assume defined patrons insti- operative of charitable free as to remain will only pay part financially to able who are and those tutions prevailing rendered. rate for the of the service paying patients, respect will these institutions With policy recognize of declaration that, under the new have to they to increase their adopted either have court, will this subscriptions larger order charitable or solicit rates pre- heavy pay the insurance provide which to funds with thereby. necessary principal The be made will miums which change policy will the insurers. of this of beneficiaries theory charity my yield is a that I assent to cannot days, presently horse-and-buggy these and that relic of the encourage- longer in need of no institutions are charitable gov- they supplanted various have been ment because public agencies of the welfare state. While ernmental they necessary hospitals service, render valuable persons of all who a small fraction cannot take care of even They physical in this state. were mental care need hospitals, place whose of charitable to take the intended always operation continue been, and should has continued encouraged. be, years nothing happened my opinion, in the last ten has (since 16 Wn. in Weiss v. Swedish our decision abandoning justifies (2d) 978) our which 446, 133 P. Charity sixty years. policy is of the last our consistent encouragement is entitled to the same a virtue and still always of this court. received at the hands it has change any policy, people If of this desire this state through legislature accomplished it can should be be and dissenting suggested Judge opinion in this case. Hill’s majority provides example opinion an excellent inability any intelligently of court to function on a matter public policy in a case this kind because of its lack of ascertaining necessary background. facilities factual allegations In this case, we have before us complaint may judicial and matters of which we take notice. allegation judicial There is no of fact nor matter within remotely change notice that even indicates that factual which, place taken would warrant the approved majority opinion. contrary, now On the major premise majority opinion I think that upon erroneously founded an assumed state of facts which directly contrary presently existing actual situation in this state. appellate decisions other
As for the courts thoroughly ably subject, reviewed majority opinion, appears at least half of the states recognized type is still some form of in this litigation. *19 denying the recent trend While has been toward immunity, cogent following I see no reason for our it. changing long-
In the absence basis for factual our following to me rule, it seems that the established statement Hospital, supra, applicable v. Swedish from Weiss still applied be in this case: should great diversity consider “When we of variant rules might adopted, and at the same time remember which dealing apply rule with which we does not that the hospitals churches, institutions, alone but to educational organizations, general, and, A.’s, M. C. social welfare Y. organizations engaged philanthropic, the various benev- work, it is at olent, and charitable once manifest that a particularly complete its rule, abandonment, far-reaching unimagined perhaps, and, and un- would consequences. intended Banc, and, En the instant case after court has heard “The matter, concludes that it consideration a careful modify, abandon, the limited should long applicable in held cases of this char- it has so acter.” legislature takes action in this matter
Unless and until hearing persons (presumably all and institutions af- after court continue to change), fected should proposed found to have been which has been adhere to sixty years.' for more than satisfactory I the judgment. would affirm Department September 4, 1953.] One.
[No. Company Electric Pate, v. General Respondent, Carl al., et Appellants.1 *20 1Reported in 260 P.