APPEAL from the Appellate Court for the Second District;
heard in that court on appeal from the Circuit Court of Peoria
County; the Hon. HENRY J. INGRAM, Judge, presiding.
MR. CHIEF JUSTICE THOMPSON DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 15, 1950.
Appellant, Agnes R. Moore, plaintiff below, brought an action in the circuit court of Peoria County, against the defendants, William J. Moyle, B.G. Bramlage, and Bradley Polytechnic Institute, hereinafter referred to as Bradley, to recover damages for personal injuries.
In 1940, plaintiff was a student at Bradley and the individual defendants were instructors in its department of physical education. Bradley purchased a trapeze to be used in a college circus and on May 2, 1940, while appellant was practicing on the trapeze in preparation for the circus, it collapsed, allowing her to fall some twenty-five feet to a hardwood floor, where she suffered the injuries out of which this case arose.
Plaintiff filed an amended complaint consisting of six counts. As amended, counts 1 and 3 alleged the circumstances of the fall and rest on the doctrine of res ipsa loquitur. Counts 2 and 4 charge specific acts of negligence, and counts 5 and 6, sound in contract. All counts, as amended, pray judgment against Bradley and the individual defendants, and all counts allege that Bradley is fully insured against the risk involved here, and that Bradley has other nontrust funds from which judgment could be satisfied; and, further, alleges that judgment, if obtained, would not impair or diminish any funds held by Bradley in trust for charitable purposes. Motions to dismiss were filed, Bradley averring it is a charitable corporation, and therefore not liable for the torts of its agents. The trial court entered an order striking all counts as to Bradley and all except count 2 as to the individual defendants. Later, appellant filed her motion to vacate the order in so far as it dismissed the complaint against Bradley. This motion was denied and appellant elected to stand on her pleadings. Judgment was then entered dismissing the suit as to Bradley. From that judgment appellant came here on direct appeal contending constitutional questions were involved. This court found no fairly debatable constitutional questions were presented and ruled on in the trial court, so as to give this court jurisdiction on direct appeal, and that the question presented was whether the judgment in the trial court was correct. (Moore v. Moyle, 399 Ill. 230.) The cause was accordingly transferred to the Appellate Court for the Second District, where the judgment of dismissal was affirmed. The case is now before us again on a certificate of importance.
The first question to be determined is whether the judgment below was a final, appealable order. Appellee contends the action below was not finally disposed of on the merits because still pending against the individual defendants. There is no merit to that contention in the situation here. Where a judgment determines the ultimate rights of the parties with respect to distinct matters having no bearing on other matters not finally disposed of, the judgment is final and appealable. (Roddy v. Armitage-Hamlin Corp. 401 Ill. 605.) It is conceded that the judgment here was a final determination of the controversy between Bradley and appellant on its merits. The judgment clearly has no bearing on the issues still in controversy between appellant and the individual defendants, and it constitutes a final appealable order.
Bradley Polytechnic Institute, now Bradley University, is a charitable institution organized in 1896, under the laws of this State as a corporation, not for profit. The crucial question thus presented is whether charitable corporations are exempt from liability for the torts of their agents so as to justify the dismissal below as to Bradley Polytechnic Institute. The controversy revolves around the holding in Parks v. Northwestern University, 218 Ill. 381, where it was announced that the doctrine of respondeat superior does not extend to charitable institutions for the reasons, first, that if this liability were admitted, the trust fund might be wholly destroyed and diverted from the purpose for which it was given, thus thwarting the donor's intent, as the result of negligence for which he was in nowise responsible; second, that since the trustees cannot divert the funds by their direct act from the purposes for which they were donated, such funds cannot be indirectly diverted by the tortious or negligent acts of the managers of the funds or their agents or employees.
It is conceded that Bradley Polytechnic Institute is a charitable corporation and that the doctrine of the Parks case is applicable to the instant case if the exemption from liability propounded in that decision is absolute. Appellant contends the exemption is not absolute. To sustain this contention appellant cites the case of Marabia v. Mary Thompson Hospital, 309 Ill. 147, where a default judgment was entered against a charitable hospital for tort. There, the hospital moved to set aside the judgment, alleging the charitable nature of its organization, and that the plaintiff had no cause of action of which the court could take jurisdiction. The trial court sustained the motion and the Appellate Court affirmed. On appeal to this court the order setting aside the judgment was reversed on the ground that a charitable corporation is under no disability to be sued and, if sued, must present its defenses if it wishes to contest the action. Appellee admits that this case fairly holds that the defense of immunity may be waived, but contends that where that defense is interposed it is absolute.
An analysis of the decisions in Illinois reveals that where plaintiffs have sought an unqualified recovery in tort against a charitable corporation, this and the Appellate Courts have uniformly followed the doctrine of the Parks case. (Hogan v. Chicago Lying-In Hospital, 335 Ill. 42; Lenahen v. Ancilla Domini Sisters, 331 Ill. App. 27; Wattman v. St. Lukes Hospital Ass'n, 314 Ill. App. 244; Moretick v. South Chicago Community Hospital, 297 Ill. App. 488.) However, where it appears from the pleadings that the charitable corporation is covered in its liability by insurance, the Appellate Courts have differed in their conclusions as to the extent of the exemption. In Piper v. Epstein, 326 Ill. App. 400, where it was alleged the defendant charity was protected by liability insurance, a judgment against the charity was reversed, the court holding the existence of the insurance did not enlarge the liability. The court there held the immunity of charitable corporations from liability based on negligence to be absolute. To the same effect is Myers v. Y.M.C.A. 316 Ill. App. 400.
But in the case of Wendt v. Servite Fathers, 332 Ill. App. 618, where the defendant charity was protected by liability insurance, the court held that the immunity granted by Parks v. Northwestern University, 218 Ill. 381, was not absolute, that the defense could be waived, and that, where there was liability insurance from which tort liability could be collected without impairment of the trust funds of the charity, the defense of immunity was not available.
None of the three last-mentioned cases came to this court and the effect of insurance as nontrust funds of the charity on the doctrine of the Parks case has never been passed on by this court.
An examination of the Parks case reveals that the sole object of the doctrine there announced was to protect the trust funds of charities from depletion through the tortious conduct of their employees and agents. The only subsequent case in which the court passed squarely on the doctrine was Hogan v. Chicago Lying-In Hospital, 335 Ill. 42. In that case the court did not enlarge upon the doctrine, nor was there any insurance or other nontrust fund of the charity involved. The only effect of that case was to reaffirm the doctrine of the Parks case. We must, therefore, first determine whether the exemption granted to charities in Illinois is absolute and the solution of that question would seem to rest solely in the decisions of this court.
The holding in the Parks case clearly exempts the trust funds of a charity from any liability for the torts of its agents and employees. However, the immunity granted does not impose a disability to be sued in tort upon the charity and may be waived. (Marabia v. Mary Thompson Hospital, 309 Ill. 147.) The only logical construction would seem to be that liability does exist, but the doctrine of immunity is available as a complete defense of the trust funds against depletion by suits in tort. It is hard to reconcile the concept of absolute immunity with a power to create liability by waiver. Such a conclusion would, in effect, place it within the power of charities to confer or withhold jurisdiction of the courts to hear cases of this kind. That question was presented in the Marabia case and the court squarely held that jurisdiction was not dependent upon the waiver of the defense of immunity. That case further upheld a judgment capable of unqualified enforcement against the assets of the charity, on the basis that charitable immunity constituted no more than a defense, unavailing unless presented. The Parks case seems to have provided a defense, only, and did not destroy the right of action.
The next inquiry would seem to be the extent of the defense granted. The decisions in the Parks and the Chicago Lying-In Hospital cases clearly extend the immunity to all funds held in trust for the charitable purposes of the charity, but in no case has the question of whether nontrust funds of the charity are protected been presented to this court. There is nothing in the Parks case which indicates that there was either intention or reason to ...