On appeal from Superior Court, Law Division.
For affirmance -- Justices Case, Heher, Oliphant, Wachenfeld and Burling. For reversal -- Chief Justice Vanderbilt, and Justice Ackerson. The opinion of the court was delivered by Burling, J.
This appeal involves a civil action sounding in tort and grounded in the alleged actionable negligence of the defendant, proximately resulting in injuries sustained by the infant plaintiff, John Jones. Plaintiffs instituted their action in the Law Division of the Superior Court, Bergen County, suffered an adverse judgment and addressed this appeal therefrom to the Appellate Division of the Superior Court; prior to hearing there, the appeal was certified to us on our own motion.
The infant plaintiff, a boy 12 years of age, allegedly was injured by a fellow pupil while both were in attendance at a parochial school conducted by the defendant in the Borough of Rutherford, Bergen County, New Jersey. He brought suit in the Law Division of the Superior Court and his parents
also, per quod, against the defendant, alleging the breach of duty on the part of its agent, one of its instructors. The defendant, after the pleadings were closed, moved for summary judgment under Rule 3:56, upon the ground, raised as a defense in the answer, that it was a charitable corporation or eleemosynary institution and the plaintiffs were beneficiaries of said charity at the time of the incident allegedly resulting in injury to the infant plaintiff. It was stated in the notice of motion that defendant would rely on depositions previously taken of plaintiffs John Jones and Joseph Jones and upon an affidavit of the administrator of the defendant having incorporated therein a certified copy of the defendant's certificate of incorporation. Plaintiffs served an opposing affidavit on defendant's counsel on the day of the argument on the motion. The defendant's motion was granted by the trial court and judgment in favor of defendant was entered on January 31, 1951. Plaintiff instituted an appeal from this judgment to the Appellate Division of the Superior Court and while pending consideration there said appeal was certified to this court upon our own motion as hereinbefore mentioned.
The doctrine of immunity seems to have had its first application in our State, in a decision of a court of last resort, in D'Amato v. Orange Memorial Hospital, 101 N.J.L. 61, 63, 65 (E. & A. 1925), a unanimous decision of the 15 members of the court who considered the appeal. In the opinion the court in the D'Amato case reviewed decisions in other states, and concluded that (p. 65):
"In our opinion, public policy requires that a charitable institution maintaining a hospital be held not liable for injuries resulting to patients through the negligence or carelessness of its physicians and nurses, even if the injured person were a pay patient -- payment for board, medical services and nursing in such case going to the general fund to maintain the charity."
In the D'Amato case, supra, the court assigned no specific grounds or sources as the basis for its declaration of public policy, but the declaration is understood to be a statement
of a common law principle that it would be contrary to the interests of society that funds dedicated to a charitable use be permitted to be diverted or diminished by the payment of judgments resulting from the torts of agents, servants or employees of the organization or institution administering the charity where suit is instituted by the beneficiary of the charity. This position is borne out in the opinion in Simmons v. Wiley M. E. Church, 112 N.J.L. 129, 132 (E. & A. 1934) wherein it was held (p. 132):
"Now, it is quite within reason to declare that public policy forbids a charitable institution being held constantly to the danger of damages for untoward results in some of the continuous ministrations to the direct beneficiaries of its charitable contributions; but such a rule is not invoked with equal justice, nor indeed by virtue of any public requirement, in the case of tortious injuries to those outside of its benefits, neither seeking nor receiving the same. It may well be sound public policy to avoid a diversion of trust funds from the direct object of their charitable donor by forbidding their application to damages for the negligence of the charity's servants where the injured party participates in the charity's bounty, but no charitable organization, no matter how lofty in character the motive or purpose, should be permitted with impunity to set up and operate machinery and thereby injure by negligence those unconcerned in and unrelated to that which the donor brought into being or supports in operation."
And in Kolb v. Monmouth Memorial Hospital, 116 N.J.L. 118, 119-120 (E. & A. 1936) the common law principle was ...