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February 4, 1955

Diane JEFFREY, Plaintiff,
WHITWORTH COLLEGE, a corporation, Defendant

The opinion of the court was delivered by: DRIVER

Plaintiff brought this action to recover damages for personal injuries. Defendant moved for summary judgment on the pleadings and the pretrial order on the ground that as a charitable corporation it was not liable for any injuries inflicted upon plaintiff by the negligence of its servants. If there is no real factual issue and defendant is entitled to judgment as a matter of law on the record, the motion should be granted. *fn1" But plaintiff's material allegations and contentions of fact must be accepted as true and she must be given the benefit of the most favorable inferences which reasonably can be drawn therefrom. *fn2" So treated, the pertinent facts may be summarized as follows:

At all times herein, defendant was a charitable institution and corporation organized under the laws of the State of Washington, engaged in operating a college at Spokane, and plaintiff was a citizen of the State of California and a regularly enrolled and tuition-paying student in defendant college.

 For many years defendant had provided for its students an annual recreational outing known as a 'snow Frolic'. In the winter of 1951-1952 defendant arranged for the event by entering into a fixed fee contract for the use of the facilities of the Signal Point Ski Resort, located at Post Falls, Idaho. Defendant agreed to furnish all facilities for the day, including transportation, instructors, skis, and nay and all other equipment, and undertook to maintain its own ski patrol whose duty it was to police the area during the time the recreational and athletic activities were in progress. A ski run and a ski tow at the resort were available for the snow frolic, but there were no facilities for tobogganing, and the terrain was not adapted or suitable for that activity. The presence of ski towers, trees, and other obstacles made it impossible to use toboggans safely. The plaintiff was unacquainted with winter sports such as skiing and tobogganing and, as a student of the college participating in the snow frolic, relied wholly upon the judgment, supervision, and direction of the defendant's agents and employees.

 Prior to February 12, 1952, and again on that day, the defendant was informed that the Signal Point Ski Resort was not suitable or safe for the use of toboggans, but despite such notice and warning, the defendant permitted and encouraged tobogganing during the course of the snow frolic. The plaintiff, while a passenger on a toboggan at the resort on February 12, 1952, was seriously and permanently injured when the toboggan was negligently operated in such a manner as to collide with a ski tow tower.

 In her complaint the plaintiff alleged that the defendant was negligent in failing to refrain from the use of toboggans at the resort after it had been warned and notified, and knew, and should have known that the area was unfit and unsafe for tobogganing; in failing properly, adequately and with due care to supervise the recreational activities carried on at the Signal Point Ski Resort; and in failing to inform and warn the plaintiff of the danger involved in the use of toboggans at the resort. Plaintiff prayed for damages in excess of three thousand dollars, exclusive of interest and costs.

 It appears from the record, then, that at the time of plaintiff's injury she was a tuition-paying student in defendant college; that defendant was a charitable Washington corporation; and that plaintiff received her injuries in the state of Idaho. The principal legal problem presented is one of conflict of laws. In Idaho a charitable corporation is not liable to a beneficiary for damages in tort. *fn3" In Washington, such a corporation no longer enjoys that immunity. *fn4" Federal jurisdiction in the present case is based upon diversity of citizenship and I must, therefore, apply the local substantive law. *fn5" Specifically as to what law governs, the conflict of laws rule of the Washington State Supreme Court will be decisive. *fn6" The rule announced by that Court in Richardson v. Pacific Power & Light Co., 11 Wash.2d 288, 299, 118 P.2d 985, 991, is 'that the existence and nature of a cause of action for tort are governed by the law of the place where the alleged wrong was committed.' One of the supporting authorities cited in the opinion is 'Restatement, Conflict of Laws (1934), § 378.'

 It seems clear that in the instant case the wrong was committed in Idaho, even assuming, as I do, that within the State of Washington defendant received information and knowledge that toboggans could not safely be used at the Signal Point Ski Resort and that, in Washington, it failed to discharge its positive duty to warn plaintiff of the danger. No negligent act or omission in Washington resulted in any physical injury of the plaintiff in that state. Where the act or omission complained of occurs in one place and the injury is inflicted in another, the place of wrong or locus delicti is the place where the injury was sustained; or, as it has sometimes been stated, the place of wrong is in the state where the last event necessary to make an actor liable for an alleged tort occurs. *fn7"

 The Washington State Supreme Court has had occasion to deal with the public policy rule in a number of cases which I shall briefly review. If my list is not complete, it is at least sufficiently comprehensive to furnish a satisfactory basis for evaluation of the court's attitude toward the rule and of the circumstances in which the Court will apply it.

 Bank v. Doherty, 42 Wash. 317, 84 P. 872, 4 L.R.A.,N.S., 1191, presented the question whether a promissory note, made and delivered in Montana by one resident of that state to another, which provided for payment of interest at the rate of 2 per cent month, a rate higher than the maximum permitted by the usury laws of the State of Washington, would be enforced in an action prosecuted in Washington. The Court said that the validity and construction of the note depended upon the law of the place where it was made, and since the interest rate it carried was valid in Montana, the note was enforceable in Washington. There was no discussion in terms in the opinion of the public policy rule.

 Cartens Packing Co. v. Southern Pac. Co., 58 Wash. 239, 108 P. 613, 27 L.R.A., N.S., 975, was an action by a shipper for damages for injuries to cattle alleged to have resulted from negligence of defendant carrier in shipments from points in California to Tacoma, Washington. The defendant carrier set up as a defense a provision of the shipping contract which exempted the carrier from liability for damage to the livestock due to its own ordinary negligence. Such a contract provision was permissible under the law of California, where the contract was made, but was expressly prohibited by a statute of Washington. The Court held that the contract violated the public policy of Washington as expressed in the statute and would not be enforced in the Washington courts.

 In Reynolds v. Day, 79 Wash. 499, 140 P. 681, L.R.A.1916A, 432, plaintiff brought an action in Washington to recover damages for injuries which he claimed were caused by the negligence of the defendants while he was in their employ as a miner in the State of Idaho. He alleged in his complaint that Idaho had no statutory provision for industrial insurance or workmen's compensation. The trial court sustained a demurrer to the complaint and dismissed the action on the ground that it was contrary to the public policy of Washington to permit the maintenance of a common law action for damages for negligence against an employer. The public policy relied upon was emphatically declared in the Industrial Insurance Act, Laws of 1911, p. 345, which strongly denounced the common law system of remedies of workmen against employers for injuries received in hazardous work and abolished all actions and causes of action by workmen in such employment against employers for damages for injuries resulting from negligence. The Washington State Supreme Court reversed. It pointed out that rights which have accrued by the law of another state, as a matter of comity are treated as valid everywhere unless they are contrary to the public policy of the place where the action is brought. But, the Court said, to be contrary to public policy in that sense it is not sufficient that the foreign right merely be one that would not be recognized or would not exist by the local law. It must also be contrary to good morals, or natural justice, or prejudicial to the best interests of the citizens of the forum state. The Court concluded that public policy did not prevent enforcement in Washington of the common law right of the injured Idaho workman to prosecute an action for damages against his employer.

 The plaintiff in Hatcher v. Idaho Gold & Ruby Mining Co., 106 Wash. 108, 179 P. 106, brought an action to recover the reasonable value of his services performed as a laborer in Idaho. The defendant alleged as a defense that it had fully performed its employment contract with plaintiff, by which he was to receive as part of his wages considerations other than immediate payment in cash. Plaintiff sought to avoid the defense by invoking a Washington statute which made such employment contracts unlawful. The Court held that the contract which was valid by the laws of Idaho where it was made, was enforceable in the courts of Washington. The Court cited Bank v. Doherty, supra, as supporting authority, and distinguished Carstens Packing Co. v. Southern Pac. Co., supra, on the basis that the contract there relied upon as a defense, although made in another state, was to be partly performed in the State of Washington. In the Hatcher case, as in the instant one, the defendant was a Washington corporation.

 In Farley v. Fair, 144 Wash. 101, 256 P. 1031, plaintiff sued for a brokers commission for the sale of real property in Washington. The contract of employment did not contain a description of the real property sufficiently definite to meet the requirements of the Washington statute of frauds. But it was signed in Oregon and was performed by the broker in that state and plaintiff contended that the Oregon law should be applied. It was held that the statute of frauds declared a public policy which would not ...

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