(dissenting). With the respect and deference due my colleagues in the majority, I must dissent from their position.
The subject of charitable immunity has been the cause of prolific opinion, judicial and otherwise. It is one upon which there has been and is not only a conflict of decisions among the courts, but also a remarkable diversity of opinion among the courts which agree in their ultimate result as to the reason for so deciding.
The present immunity philosophy prevailing in New Jersey respecting freedom of charitable institutions or projects from liability for negligent action of its servants and agents was first declared by the highest court in this State in 1925 in the case of D’Amaio v. Orange Memorial Hospital, 101 N. J. L. 61 (E. & A. 1925). The ensuing New Jersey decisions on the subject have been tabulated in the majority opinion and there is no reason to repeat them here. These decisions were evidence of and formed part of the common law of this State and by virtue of the 1947 Constitution, Art. XI, Sec. I, par. 3, “shall remain in full force [and effect] until * * * superseded, altered or repealed by this Constitution or otherwise.” Since the 1947 Constitution the present Supreme Court has had one occasion to review the charitable immunity doctrine and it then affirmed the previous declaration. Jones v. St. Mary’s Roman Catholic Church, 7 N. J. 533 (1951), certiorari denied 342 U. S. 886, 72 S. Ct. 175, *6296 L. Ed. 664. Assuming there is no constitutional restraint against judicially changing the common law principles of this State, still I deem it not the act of wisdom to presently do so with respect to the doctrine of charitable immunity.
Few Jersey is only one of the overwhelming majority of American jurisdictions which, since the initial decision in this country in the ease of McDonald v. Massachusetts General Hospital, 120 Mass. 432 (Sup. Jud. Ct. 1876), adopted the immunity principle as part of their jurisprudence. It is said by the critics of immunity that the doctrine was erected upon an imaginary pillar of the English law. If that were the sole basis for the immunity rule I have grave doubt whether it would have survived for the length of time which it has. It has proved to be a sturdier edifice than its critics would lead us to believe. The notion that charitable immunity evolved from a mistaken interpretation by the Massachusetts Court of the law of England does not, of course, reach the merits of the problem, nor would I suggest that it is so intended by those who advance it, but at the same time it should not be placed in such a degree of prominence as to obscure the fact that the ratio decidendi of charitable immunities rests upon judicial notions of public policy.
Whatever the historical antecedents of the charitable immunity doctrine, it was so well recognized as part of a principle rooted in public policy prevailing in the United States that when the court in the D’Amato case, supra, declared it be the law of this State, the following- terse statement was deemed a sufficient explanation of its basis:
“In our opinion, public policy requires that a charitable institution maintaining a hospital he 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.” (101 N. J. L. at page 65)
This statement has been generally understood to mean that it would be contrary to the .interests of society that funds dedicated to a charitable use be permitted to be diverted or *63diminished 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.
Another argument, prevalent among many of those opposed to the charitable immunity doctrine, deserves comment. The objection is often heard that the charitable immunity principle is oppugnant to the proposition that one who through fault injures another is liable for the consequences of his wrong. But the attempt on the part of a plaintiff in suing a charity is to impose liability for the personal fault of agents and employees, i. e., vicarious liability. It is not beyond possibility that the original and universal adoption of the immunity doctrine in this country may have stemmed from a policy on the part of the courts that vicarious liability ought to be restrained within the confines of commercial activities and not spread to charitable enterprises. Compare Restatement of Trusts, ■§ 402(3) (1935).
Whatever the reason assigned for the immunity principle, and there are several, see Prosser, Torts § 109, p. 784 et seq., there clearly emerges an underlying principle that charitable organizations need protection from tort liability. Writing in 1916, Baty concluded that the reason for the doctrine of respondeat superior is that “the damages are taken from a deep pocket.” Baty, Vicarious Liability, 154 (1916). The pockets of many charitable institutions were not so deep, and the consequences of a tort liability may well have proved disastrous. At least, it must have been so felt in 1925 when this jurisdiction embraced the immunity rule. A fundamental consideration today is whether conditions have so' changed as to remove the last vestige of a danger. Many think so, but others, equally thoughtful, firmly believe that serious problems will be created for smaller hospitals and other charitable organizations of modest means. Chief Judge Conway dissenting in the ease of Bing v. Thunig, 2 N. Y. 2d 656, 163 N. Y. S. 2d 3, 143 N. E. 2d 3, at page 9 (Ct. App. 1957), expressed a deep concern over the fate *64of smaller institutions. He declared (143 N. E. 2d at page 9):
“Very few, if any, voluntary hospitals reach the end of any year without a deficit which has to he made up by its board of directors or by other charitable gifts. This is especially so of small hospitals. In my judgment, the doctrine of the Schloendorff case has justified itself over the years and has enabled voluntary hospitals to survive. That is particularly so in small communities as distinguished from larger cities. We need both the large and small voluntary hospital. The alternative is public hospitals supported by county or State or stock company hospitals operating as businesses organized for profit.”
Suffice it to say that there is no proof in the record which deals with the probable consequence of liability upon charitable institutions, large or small. At least until such time as the consequences of overturning the doctrine of immunity are adequately demonstrated, rather than surmised, I would stay my hand. The branch of government fundamentally suited to garner the appropriate facts is the legislature.,
The critics of charitable immunity have taken the position that that which the courts have done they can undo and therefore we ought not to wait for legislative action. Sometimes, however, it is easier to do than to undo, and that, I believe, is the case here. There is no exact analogy between creating the charitable immunity doctrine and destroying it. The time lapse between creation and destruction must be weighed in the balance. There has undoubtedly developed over the years a reliance upon the initial determination, which in turn is reflected in the financial structures of charitable institutions. How great this reliance has been is again only a matter for speculation and the facts are not before us. Insurance looms large in the minds of those who would overturn the immunity rule. Are all institutions insured? Are the majority? How many are not? Of those that are not, how many may be liable for torts committed within the past two years? What would be the consequence of imposing insurance rates which reflect liability of those institutions without immunity, upon the financial structure of charities in futuro? When the large *65amount of recent verdicts are compounded by the possibility of numerous actions against a single institution, the cost of adequate insurance coverage can be easily imagined. In short, the availability of insurance is no certain panacea for the plethora of problems raised, at least not without an adequate factual basis upon which to premise a conclusion. In 1951 insurance was urged upon this court in the Jones ease, supra, as a solution to the inherent difficulties of the problem. The court held that the argument did not warrant a departure from the rule.
The argument is put forth that immunity has been overturned elsewhere without serious adverse effect. But the socially disadvantageous results might not be so immediate or startling in their impact as to come to public attention quickly. Rather, they would take the form of a gradual lessening of services, since the limited resources of charities will have to be diverted from service functions in order to provide for possible liabilities. Institutions do not have to close their doors before the consequences of liability are felt.
The number and diverse nature of charities in this State pose a difficult problem and I choose not to venture on the outcome without persuasive proofs.
I am heartened by the fact that I am not alone in this view. Aside from the dissenting voices where the immunity doctrine has been overturned, a majority of the court in five very recent instances have stood firm against the decisions dissolving the doctrine and have determined the matter is one for legislative action. Kentucky, Forrest v. Red Cross Hospital, 265 S. W. 2d 80 (Ct. App. 1954); Oregon, Landgraver v. Emanuel Lutheran Charity Board, 203 Or. 489, 280 P. 2d 301 (Sup. Ct. 1955); Nebraska, Muller v. Nebraska Methodist Hospital, 160 Neb. 279, 70 N. W. 2d 86 (Sup. Ct. 1955); Connecticut, McDermott v. St. Mary’s Hospital Corporation, 144 Conn. 417, 133 A. 2d 608 (Sup. Ct. Err. 1957); and only the other day Pennsylvania, Knecht v. Saint Mary’s Hospital, 392 Pa. 75, 140 A. 2d 30 (Sup. Ct. 1958).
*66The New Jersey Courts have an added reason for presently adhering to the principle of stare decisis. In 1955 there was introduced and passed in the Assembly of this State a bill which as amended reads as follows:
“An act limiting the exemption of hospitals and similar charitable institutions and organizations from liability for damages occasioned by the negligence of their agents and servants.
BE IT ENACTED BY THE SENATE AND GENERAL ASSEMBLY OE THE STATE OE NEW JERSEY:
1. No hospital or similar charitable institution or organization shall be exempt from liability for damages for the death of, or injury to the person, or for the destruction or damage to the property of, any person, occasioned by the negligence of its agents or servants, except to the extent to which such damages shall amount to more than $10,000.00, together with interest and costs of suit, as the result of any accident and to the extent that any such damages do not exceed said sum, together with interest and costs, every hospital or other charitable institution or organization shall be liable as aforesaid.
The provisions of this act shall not apply to any hospital or institution or organization owned, operated or maintained by the State of New Jersey or any political subdivision of the State.
2. This act shall take effect January 1, 1956, and shall be effective with respect to accidents occurring, and to causes of action arising therefrom, on or after January 1, 1956.”
(Assembly Bill No. 420, introduced March 14, 1955, and passed in the Assembly May 26, 1955.)
The bill remained in the Senate committee.
The advocates of change urge that legislative inaction in the case of charitable immunity is neutral; that it does not, as in the case of legislative inaction following a judicial construction of a statute, bespeak accord. But that the Legislature of New Jersey is aware of the problem and has chosen to preserve the status quo is apparent. The proponent of the bill thought it prudent to place a $10,000 ceiling upon the liability of charities. Here again is manifested the chasm between judicial and legislative action in dealing with a problem. The present court action imposes unrestricted liability. The Legislature may act more flexibly, and as in the instant statute, abrogate immunity, but mitigate the consequence of change according to what they deem the course of wisdom to be.
*67Until such time as I may be convinced by a firm foundation in fact that the overturn of the charitable immunity doctrine will, weighing all the interests involved, have a socially beneficial effect I would uphold it.
Accordingly I dissent and vote to affirm the judgment from which the appeal has been taken.
For reversal—Ohief Justice Weintraub, and Justices Wacheneeld, Jacobs, Eranois and Proctor—5.
For affirmance—Justices Usher and Burling—2.