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Collopy v. Newark Eye and Ear Infirmary

Decided: April 28, 1958.


For reversal -- Chief Justice Weintraub, and Justices Wachenfeld, Jacobs, Francis and Proctor. For affirmance -- Justices Heher and Burling. The opinion of the court was delivered by Jacobs, J. Heher, J. (dissenting). Burling, J. (dissenting).


The plaintiff's complaint alleges that he entered the defendant hospital on March 21, 1957 for the purpose of having surgery performed upon his eyes; that after the surgery was completed he remained at the hospital as a post-operative patient and wore protective bandages over his eyes; that on March 28, 1957 he was, through the negligence of the defendant in failing to provide suitable guardrailings, permitted to fall out of bed with great force and with resulting serious injuries; that the defendant delayed in taking X-rays until March 30, 1957 and then negligently informed him that he had not sustained any injuries from his fall and discharged him from the hospital; and that subsequently he was obliged to undergo further hospitalization for the treatment of the injuries sustained in his fall. Before answering, the defendant moved to dismiss the complaint, asserting that since it is a nonprofit eleemosynary corporation (R.S. 15:1-1 et seq.) it possesses an absolute immunity from any responsibility to the plaintiff for injuries resulting from its alleged negligent conduct. The trial court granted the motion and entered summary judgment in favor of the defendant. Thereafter the plaintiff appealed to the Appellate Division and we certified under R.R. 1:10-1(a).

The immunity upon which the defendant relies was first declared in our courts in 1925 as a judicial expression of the State's public policy (D'Amato v. Orange Memorial Hospital, 101 N.J.L. 61 (E. & A. 1925)); however, the reasonable demands and expectations of innocent persons who were injured through the fault of others soon brought about a far-reaching exception (Simmons v. Wiley M.E. Church, 112 N.J.L. 129 (E. & A. 1934); Kolb v. Monmouth Memorial Hospital, 116 N.J.L. 118 (E. & A. 1936)) which has been applied by our courts more and more broadly (Rose v. Raleigh Fitkin-Paul Morgan, &c., Foundation, 136 N.J.L. 553 (E. & A. 1948); Lindroth v. Christ Hospital, 21 N.J. 588 (1956)); and in recent years many of our judges have pointedly suggested that sound concepts of right,

justice and morality require outright rejection of the immunity. See Lindroth v. Christ Hospital, supra; Lokar v. Church of the Sacred Heart, 24 N.J. 549, 555 (1957); Benton v. Young Men's Christian Ass'n of Westfield, 47 N.J. Super. 372 (App. Div. 1957), certification granted, 25 N.J. 498 (1958); Rafferzeder v. Raleigh, etc., Memorial Hospital, 33 N.J. Super. 19 (App. Div. 1954), certification granted 17 N.J. 557 (1955); Woods v. Overlook Hospital Ass'n, 6 N.J. Super. 47 (App. Div. 1949). In the case before us the single issue presented by the parties is whether the last vestiges of the judicially declared immunity should at this time be erased.

In Heaven v. Pender, [1883] 11 Q.B. 503, 509, the court expressed the general rule of negligence in the following well-known language:

"Whenever one person is placed by circumstances in such a position with regard to another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger."

This common law duty of due care, with tort liability for its breach, prevails generally throughout the law although it occasionally comes into conflict with immunities which must find independent support for their continued recognition in their own historical and social justifications. Historically the immunity of eleemosynary institutions (such as the defendant) has little basis. In Duncan v. Findlater, 6 Cl. & Fin. 894, 7 Eng. Rep. 934 (1839), and The Feoffees of Heriot's Hospital v. Ross, 12 Cl. & Fin. 507, 8 Eng. Rep. 1508 (1846), there were dicta by Lord Cotenham supporting the immunity, although neither case involved a tort action for personal injuries resulting from the negligent operation of a nongovernmental eleemosynary institution. In Holliday v. St. Leonard, Shoreditch, 11 C.B. (N.S.) 192, 142 Eng. Rep. 769 (1861), the court followed the dictum in the Duncan case and held the vestry of a parish to be immune from tort responsibility, but this holding was quickly overturned

(Mersey Docks Trustees v. Gibbs, L.R. 1 H.L. 93, 11 Eng. Rep. 1500 (1866); Foreman v. Mayor of Canterbury, L.R. 6 Q.B. 214 (1871)), and later English cases have given no recognition to the immunity. See Hillyer v. The Governors of St. Bartholomew's Hospital, [1909] 2 K.B. 820, 825 (C.A.); Marshall v. Lindsey County Council, [1935] 1 K.B. 516, affirmed [1937] A.C. 97.

When in McDonald v. Massachusetts General Hospital, 120 Mass. 432 (Sup. Jud. Ct. 1876), the issue was first presented in the United States, the court held the hospital to be immune from tort responsibility but it relied entirely on the Holliday case without recognizing that it had already been overruled. See Goodhart, "Hospitals and Trained Nurses," 54 L.Q. Rev. 553, 559 (1938). Other American courts followed McDonald, and it was not until after 1942, when Justice Rutledge delivered his devastating opinion in President and Directors of Georgetown College v. Hughes, 76 U.S. App. D.C. 123, 130 F.2d 810 (D.C. Cir. 1942), that a substantial number of them, now fully aware of the historical error and the lack of current utility or justification for the immunity, rejected it in toto. See Bing v. Thunig (St. John's Episcopal Hospital), 2 N.Y. 2 d 656, 163 N.Y.S. 2 d 3, 143 N.E. 2 d 3 (Ct. App. 1957); Avellone v. St. John's Hospital, 165 Ohio St. 467, 135 N.E. 2 d 410 (Sup. Ct. 1956); Wheat v. Idaho Falls Latter Day Saints Hospital, Idaho, 78 Idaho 60, 297 P. 2 d 1041 (Sup. Ct. 1956); Noel v. Menninger Foundation, 175 Kan. 751, 267 P. 2 d 934 (Sup. Ct. 1954); Pierce v. Yakima Valley Memorial Hospital Ass'n, 43 Wash. 2 d 162, 260 P. 2 d 765 (Sup. Ct. 1953); St. Lukes Hospital Ass'n v. Long, 125 Colo. 25, 240 P. 2 d 917, 31 A.L.R. 2 d 1120 (Sup. Ct. 1952); Moats v. Sisters of Charity of Providence, 13 Alaska 546 (Dist. Ct. 1952); Durney v. St. Francis Hospital, 7 Terry 350, 46 Del. 350, 83 A. 2 d 753 (Super. Ct. 1951); Ray v. Tucson Medical Center, 72 Ariz. 22, 230 P. 2 d 220 (Sup. Ct. 1951); Malloy v. Fong, 37 Cal. 2 d 356, 232 P. 2 d 241 (Sup. Ct. 1951); Haynes v. Presbyterian Hospital Ass'n., 241 Iowa 1269, 45 N.W. 2 d 151 (Sup. Ct. 1950); Foster v. Roman

Catholic Diocese of Vermont, 116 Vt. 124, 70 A. 2 d 230, 25 A.L.R. 2 d 1 (Sup. Ct. 1950); Tavarez v. San Juan Lodge No. 972, B.P.O.E., 68 Puerto Rico 681 (1948); Rickbeil v. Grafton Deaconess Hospital, 74 N.D. 525, 23 N.W. 2 d 247, 166 A.L.R. 99 (Sup. Ct. 1946). Cf. Porto Rico Gas & Coke Co. v. Frank Rullan & Associates, 189 F.2d 397 (1 Cir. 1951); Brigham Young University v. Lillywhite, 118 F.2d 836, 137 A.L.R. 598 (10 Cir. 1941), certiorari denied, 314 U.S. 638, 62 S. Ct. 73, 86 L. Ed. 512 (1941); Tuengel v. City of Sitka, Alaska, 118 F. Supp. 399 (D.C.D. Alaska 1954); Mississippi Baptist Hospital v. Holmes, 214 Miss. 906, 55 So. 2 d 142, 56 So. 2 d 709, 25 A.L.R. 2 d 12 (Sup. Ct. 1951); Nicholson v. Good Samaritan Hospital, 145 Fla. 360, 199 So. 344, 133 A.L.R. 809 (Sup. Ct. 1940); Gable v. Salvation Army, 186 Okl. 687, 100 P. 2 d 244 (Sup. Ct. 1940); Welch v. Frisbie Memorial Hospital, 90 N.H. 337, 9 A. 2 d 761 (Sup. Ct. 1939); Mulliner v. Evangelischer Diakonniessenverein, 144 Minn. 392, 175 N.W. 699 (Sup. Ct. 1920). See also Roland v. Catholic Archdiocese of Louisville, Ky., 301 S.W. 2 d 574 (Ct. App. 1957); Brown v. Moore, 247 F.2d 711 (3 Cir. 1957), certiorari denied, 355 U.S. 882, 78 S. Ct. 148, 2 L. Ed. 2 d 112 (1957); Wittmer v. Letts, Iowa, 80 N.W. 2 d 561 (Sup. Ct. 1957); Stolp v. Arkansas City, 180 Kan. 197, 303 P. 2 d 123 (Sup. Ct. 1956); Annotation, "Immunity of nongovernmental charity from liability for damages in tort," 25 A.L.R. 2 d 29 (1952).

A highly significant rejection of the immunity was the 1957 decision by the New York Court of Appeals in Bing v. Thunig (St. John's Episcopal Hospital), supra [2 N.Y. 2 d 656, 163 N.Y.S. 2 d 11], which held that a hospital was liable for its negligent injury of a patient. The court, after describing the manifold business operations of present-day hospitals, expressed the view that they should fairly "shoulder the responsibilities borne by everyone else"; it rejected the illogical distinctions which had been made in earlier New York decisions and flatly discarded the immunity as being wholly at variance with the needs of today

and with "concepts of justice and fair dealing." In 1956 the Supreme Court of Ohio and in 1953 the Supreme Court of Washington had reached similar conclusions in full opinions which pointed out that since liability insurance was available to charitable institutions they were in no position to urge that their subjection to ordinary tort responsibilities for their wrongdoings might endanger the continuance of their highly worthy endeavors. See Pierce v. Yakima Valley Memorial Hospital Ass'n., supra; Avellone v. St. John's Hospital, supra. And in 1950 the Supreme Court of Vermont in Foster v. Roman Catholic Diocese of Vermont, supra [116 Vt. 124, 70 A. 2 d 236], rejected the immunity in an opinion which stressed (1) the differences between conditions when the immunity was first judicially embraced and present-day conditions, and (2) the idleness of suggestions that donations would "dry up if the charity is held to respond for its torts" or that charitable donations are given with the expectation that the charity "will not be responsible like other institutions for negligent injury."

Professorial and student writings overwhelmingly oppose the immunity. See 2 Harper & James, Torts 1667 (1956); Prosser, Torts 784 (2 d ed. 1955); Pound, "Some Thoughts about Stare Decisis," 13 N.A.C.C.A.L.J. 19, 23 (1954); Thornton & McNiece, "Torts," 32 N.Y.U.L. Rev. 312, 327 (1957); Appleman, "Tort Liability of Charitable Institutions," 22 A.B.A.J. 48 (1936); Annotation, 25 A.L.R. 2 d 29, 42 (1952), and the numerous law review discussions listed there. Although these writings are free from the restraints of judicial responsibilities, they are worthy of careful consideration for they embody thoughtful and high-minded endeavors to stimulate the movement of our law towards the ever-present goal of obtaining a higher measure of justice for all people. A quarter of a century ago Professor Harper expressed the pertinent policy views which have been long entertained by legal scholars and have been strongly re-enforced by the passage of time:

"The immunity of charitable corporations in tort is based upon very dubious grounds. It would seem that a sound social policy ought,

in fact to require such organizations to make just compensation for harm legally caused by their activities under the same circumstances as individuals before they carry on their charitable activities. The policy of the law requiring individuals to be just before generous seems equally applicable to charitable corporations. To require an injured individual to forego compensation for harm when he is otherwise entitled thereto, because the injury was committed by the servants of a charity, is to require him to make an unreasonable contribution to the charity, against his will, and a rule of law imposing such burdens cannot be regarded as socially desirable nor consistent with sound policy." Harper, Law of Torts, ยง 294, p. 657 (1933).

In D'Amato v. Orange Memorial Hospital, supra, the plaintiff Elizabeth D'Amato had been a patient at the Orange Memorial Hospital and brought an action for damages against the hospital, alleging that she was injured as the result of the negligence of a nurse employed at the hospital. The court held that the hospital was immune from tort responsibility to the plaintiff; it relied largely on the "leading case" of Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92, 52 L.R.A., N.S., 505 (Ct. App. 1914), which has since been overruled (Bing v. Thunig (St. John's Episcopal Hospital), supra), and McDonald v. Massachusetts General Hospital, supra, which, as has been so often pointed out, followed an overturned English precedent. The only ground advanced in D'Amato in support of its holding was the brief statement by Chancellor Walker that "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." See 101 N.J.L. at page 65. But the Chancellor did not document his expression of public policy, nor did he discuss the underlying reasons for the court's conclusion that it should then declare the immunity. Cf. Haynes v. Presbyterian Hospital Ass'n., supra [241 Iowa 1269, 45 N.W. 2 d 154]:

"The law's emphasis generally is on liability, rather than immunity, for wrongdoing. Charity is generally no defense. It is for the legislature, not the courts, to create and grant immunity. The fact that

the courts may have at an early date, in response to what appeared good as a matter of policy, created an immunity, does not appear to us a sound reason for continuing the same, when under all legal theories, it is basically unsound and especially so, when the reasons upon which it was built, no longer exist."

In Boeckel v. Orange Memorial Hospital, 108 N.J.L. 453 (Sup. Ct. 1932), affirmed 110 N.J.L. 509 (E. & A. 1933), the D'Amato case was applied to preclude recovery by Mrs. Boeckel (the mother of a patient at the Orange Memorial Hospital), injured when she fell on slippery hospital steps. But in Kolb v. Monmouth Memorial Hospital, supra, the hospital was held under tort liability to Mr. Kolb (a member of the First Aid Squad of the Oakhurst Volunteer Fire Department), who was injured while he assisted in bringing a patient to the hospital. The court declined to apply D'Amato on the ground that Mr. Kolb was not a recipient of the hospital's "benefactions"; instead it applied Simmons v. Wiley M.E. Church, supra, where a charitable institution was held liable for injuries sustained by Mr. Simmons when he was struck on a public highway by a truck owned by the church and negligently driven by one of its employees. In the Simmons case the Court of Errors and Appeals held that the immunity doctrine announced in D'Amato must be confined to instances where the injured person is a so-called "beneficiary" of the charity, and may not be extended to instances where the person injured is a so-called "stranger." In Rose v. Raleigh Fitkin-Paul Morgan, etc., Foundation, supra, the Court of Errors and Appeals held that a private nurse, caring for a patient at the Fitkin Memorial Hospital, could properly assert a tort claim against the hospital for injuries sustained by her at the hospital premises; she was viewed as a stranger within Simmons rather than a beneficiary within D'Amato. In Lindroth v. Christ Hospital, supra, this court recently sustained a judgment which was recovered by the plaintiff doctor who suffered injuries as the result of the defendant's negligent failure to maintain the elevator at the hospital premises in proper working condition; here again the doctor was viewed as a stranger

within Simmons rather than a beneficiary within D'Amato.

The lines drawn by the cited New Jersey cases between strangers and beneficiaries were confusing and were somewhat reminiscent of the decisions in New York which formerly differentiated between negligent administrative acts to which liability attached and negligent medical acts to which no liability attached. The New York courts found themselves holding that placing an improperly capped hot water bottle on a patient's body was administrative, whereas keeping a hot water bottle too long on a patient was medical; that administering blood to the wrong patient was administrative, whereas administering the wrong blood to the right patient was medical; that employing an improperly sterilized needle for a hypodermic injection was administrative, whereas improperly administering a hypodermic injection was medical; and that the failure to place sideboards on a bed after a nurse had decided they were necessary was administrative, while failing to decide that the sideboards should be used when the need did exist was medical. See Bing v. Thunig (St. John's Episcopal Hospital), supra. Indeed, in our own State there was one lower court decision (Fields v. Mountainside Hospital, 22 N.J. Misc. 72 (Cir. Ct. 1944)), which adopted the New York view and pronounced an exception to the D'Amato doctrine where there had been administrative negligence. But cf. Jones v. St. Mary's Roman Catholic Church, 7 N.J. 533, 538 (1951), certiorari denied 342 U.S. 886, 72 S. Ct. 175, 96 L. Ed. 664 (1951); Woods v. Overlook Hospital Ass'n., supra; Fair v. Atlantic City Hospital, 25 N.J. Misc. 65, 70 (Cir. Ct. 1946).

Professor Scott has extensively discussed three possible grounds which have been suggested for the exemption of charitable institutions from tort liability. See 4 Scott, Trusts 2894 (2 d ed. 1956). The first is that where trust funds are devoted to charitable objects they should not be diverted from those objects and that payment of tort claims would amount to such diversion; but this legalistic view would deny liability in all tort cases, including cases such as Simmons, Kolb, Rose and Lindroth, where recovery was

allowed by the Court of Errors and Appeals and this Court. The second rests on an alleged waiver by the injured party; but such waiver would be wholly fictitious and a figment of the imagination. The third rests on the inapplicability of the doctrine of respondeat superior; but adoption of this approach would deny liability in all tort cases, including cases such as Simmons, Kolb, Rose and Lindroth, and would seem to disregard the true ground for vicarious liability in our law. See Harper & James, supra, at 1669. The New Jersey decisions did not really subscribe to any of the foregoing bases but spoke almost exclusively in terms of the public policy as the judges then saw it. Thus, in the Boeckel case Justice Case, sitting in the former Supreme Court, recognized that the diversion of the charity's trust funds, if any, was the same whether the tort claimant was a beneficiary or stranger but, after finding the plaintiff to be a beneficiary, applied D'Amato as the State's declaration of public policy. And in the Kolb case the court reaffirmed D'Amato as limited by Simmons, pointing out that it subscribed to "the public policy theory." See also Bianchi v. South Park Presbyterian Church, 123 N.J.L. 325, 332 (E. & A. 1939).

It may perhaps be that when D'Amato was rendered in 1925 it accurately represented the then prevailing notions of public policy. But times and circumstances have changed and we do not believe that it faithfully represents current notions of rightness and fairness. Due care is to be expected of all, and when an organization's negligent conduct injures another there should, in all justice and equity, be a basis for recovery without regard to whether the defendant is a private charity. We are satisfied that the views recently expressed in the concurring and dissenting opinions in Lokar v. Church of the Sacred Heart, supra, and in Rafferzeder v. Raleigh, etc., Memorial Hospital, supra, are much closer to the mores and ethical ideals of our times than are those which underlay D'Amato several decades ago. In Lokar Justice Wachenfeld noted that experiences in other jurisdictions had demonstrated that no calamitous social effects

would result from dissolution of the charitable immunity; that the availability of insurance had obviated any threat that recoveries against charities would seriously deplete their funds and deprive communities of their benefits; and that individuals "should not be forced to suffer the unmitigated and oftentimes crushing burden of injuries wrongfully inflicted merely to continue a judicially inspired immunity long since outdated by the impact of modern times." Similarly in Rafferzeder, Judge Jayne pointed to the harshness and injustice of the immunity rule and questioned any present need for it in view of the widespread availability of insurance. It may be noted that charitable institutions in New Jersey have long been under some tort responsibilities for negligent injuries to others (see Simmons, Kolb, Rose and Lindroth, supra) and presumably have protected themselves by adequate insurance coverage; if the enlargement of their tort responsibilities actually results in additional premiums, that should be considered as but incidental to the rendering of equal justice to all innocent parties who are injured through the negligence of others. While the availability of insurance has undoubtedly been a factor it has by no means been the only one in the strong trend towards rejection of the immunity; the many independently compelling reasons which have been expressed in the recent judicial opinions (Bing v. Thunig (St. John's Episcopal Hospital), supra; Pierce v. Yakima Valley Memorial Hospital Ass'n., supra; Avellone v. St. John's Hospital, supra; Noel v. Menninger Foundation, supra; President and Directors of Georgetown College v. Hughes, supra) have been well summarized in the following manner:

"In addition to the grounds relied upon in rejecting the specific theories in support of the immunity, the courts advocating abandonment of the immunity rule have pointed out that this rule found its way into the law through misconception or misapplication of previously established principles; that it is doubtful whether the administration of justice has ever been well served by the rule; that, in any event, the rule has become outmoded and is an anachronism; that it is a principle of law, as well as of morals, that men must be just before they are generous; that a charity should not be

permitted to inflict injury upon some without the right of redress, in order to bestow charity upon others because the result would be to compel the victim to contribute to the charity against his will; that the law's emphasis generally is on liability, rather than immunity, for wrongdoing, and that, in particular, the modern tendency of the law is to shift the burden from the innocent victim to the community at large, and to distribute losses incurred by individuals through the operation of an enterprise among all who benefit by it rather than to leave them wholly to be borne by those who sustained them; that immunity tends to foster neglect while liability tends to induce care and caution; that all persons, organizations, and corporations stand on an equality before the law, and all should be bound alike or excused alike; that the charitable nature of a tort-feasor cannot place it beyond the law applicable to all; and that protection of life and limb by organized society is of greater importance to mankind than any species of charity and is superior to property rights." 25 A.L.R. 2 d, at page 58.

The contention has been advanced that even though the former public policy notions have been strongly altered, the elimination of the immunity should be left exclusively to the Legislature. See McDermott v. St. Mary's Hospital Corporation, 144 Conn. 417, 133 A. 2 d 608 (Sup. Ct. Err. 1957); Knecht v. Saint Mary's Hospital, 392 Pa. 75, 140 A. 2 d 30 (Sup. Ct. 1958). There is no doubt that within constitutional limits the Legislature may at any time, if it so chooses, explicitly fix the State's policy as to the immunity of charitable institutions from tort responsibilities. But the Legislature has not done so; it has broadly empowered nonprofit corporations to sue "and be sued" (R.S. 15:1-4; see Taylor v. New Jersey Highway Authority, 22 N.J. 454, 467 (1956)); and it has never in any form voiced approval of the immunity of charitable institutions though it has expressly legislated for immunities in other fields. See Cloyes v. Delaware Tp., 23 N.J. 324, 331 (1957). In 1955 a bill was introduced (A 420) which would have rendered hospitals and similar charitable institutions immune from tort liability to both strangers and beneficiaries for damages exceeding $10,000; it was passed in the Assembly but was not acted upon in the Senate and has no bearing here.

The unmistakable fact remains that judges of an earlier generation declared the immunity simply because they believed it to be a sound instrument of judicial policy which would further the moral, social and economic welfare of the people of the State. When judges of a later generation firmly reach a contrary conclusion they must be ready to discharge their own judicial responsibilities in conformance with modern concepts and needs. It should be borne in mind that we are not dealing with property law or other fields of the law where stability and predictability may be of the utmost concern. We are dealing with the law of torts where there can be little, if any, justifiable reliance and where the rule of stare decisis is admittedly limited. See Pound, supra, 13 N.A.C.C.A.L.J. at 22; Seavey, Cogitations on Torts, 68 (1954); Cowan, "Torts," 10 Rutgers L. Rev. 115, 119 (1955). Dean Pound has had this to say as to the applicability of the rule of stare decisis in the particular situation before us:

"Again stare decisis has no legitimate application to doctrines of the law of torts built upon a mistaken foundation persisting in the books after that foundation has been undermined, which are out of accord with general principles recognized today, so that if they are rejected the general law is clarified rather than unsettled. Such, for example, is the doctrine of immunity of charitable hospitals and like institutions. This immunity for wrong ran counter to general principles of law. In this country it was based upon dicta in English cases which were rejected in England before taken over in the United States. It has been given up by the courts in twenty states but is adhered to still in twenty-six. Anomalies of this sort ought not to be protected by stare decisis." 13 N.A.C.C.A.L.J., at 23.

See also Judge Fuld's comments in Bing v. Thunig (St. John's Episcopal Hospital), supra [2 N.Y. 2 d 656, 163 N.Y.S. 2 d 11]:

"The rule of nonliability is out of tune with the life about us, at variance with modern-day needs and with concepts of justice and fair dealing. It should be discarded. To the suggestion that stare decisis compels us to perpetuate it until the legislature acts, a ready answer is at hand. It was intended, not to effect a 'petrifying rigidity,' but to assure the justice that flows from certainty and

stability. If, instead, adherence to the precedent offers not justice but unfairness, not certainty but doubt and confusion, it loses its right to survive, and no principle constrains us to follow it. On the contrary, as this court, speaking through Judge Desmond in Woods v. Lancet, 303 N.Y. 349, 355, 102 N.E. 2 d 691, 694, 27 A.L.R. 2 d 1250, declared, we would be abdicating 'our own function, in a field peculiarly nonstatutory,' were we to insist on legislation and 'refuse to reconsider an old and unsatisfactory court-made rule.'"

We find no merit in the defendant's contention that "this Court may not constitutionally overturn the immunity doctrine." New Jersey's Constitution of 1776 provided that the common law of England (as well as so much of the statute law) as was practiced in the colony should remain in force until altered by the Legislature (Art. XXII) and the Constitution of 1844 provided that the common law (and statute laws) shall remain in force until they expired by their own limitation or were altered by the Legislature (Art. X, par. 1). There were provisions comparable to these in the constitutions of the other colonies but they were wisely construed as not perpetuating common law holdings which were deemed unsuitable to changed and changing local conditions. See Hall, "The Common Law: An Account of Its Reception in the United States," 4 Vand. L. Rev. 791, 805 (1951).*fn1 The common law has always had the inherent [27 NJ Page 44] capacity to develop and adapt itself to current needs; indeed, if this were not true it would have withered and died long ago rather than have grown and flowered so gloriously. In 1852 Justice Elmer aptly pointed out that one of the excellencies of the common law system is "that it is not so inflexible as a statute, but may be modified from time to time, as circumstances require." Bell v. Gough, 23 N.J.L. 624, 657 (E. & A. 1852). Acting on this enlightened approach in 1933 the Court of Errors and Appeals in Loudon v. Loudon, 114 N.J. Eq. 242, 252 flatly rejected a long standing common law doctrine upon the current view that "it leads to the suppression of truth and the defeat of justice." And in Heise v. Earle, 134 N.J. Eq. 393, 402, the Court of Errors and Appeals in 1944 took a similar course,

pointing out that the common law as set forth in the earlier decisions of judges is not "an inflexible mould and pattern for our judicial opinion in this state." It was in fair recognition and fulfillment of the foregoing that the Constitution of 1947 broadly set forth in its transitional schedule (Art. XI, Sec. I, par. 3) that all law, statutory and otherwise, shall remain in full force until it expires or is superseded, altered or repealed by the Constitution or otherwise. In State v. Culver, 23 N.J. 495, 503 (1957), certiorari denied, 354 U.S. 925, 77 S. Ct. 1387, 1 L. Ed. 2 d 1441 (1957), this court, through Chief Justice Vanderbilt, recently held that the term "otherwise" ...

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