decision partially retroactive as to all insured charities
How later courts described this case
- decision partially retroactive as to all insured charities
- abolition of tort immunity for nonprofit charitable hospitals
Written by the judges who cited it.
The opinion
Brower, J.,
dissenting.
I respectfully dissent from the opinion of the court herein. In my opinion, the office of this court is to interpret the substantive law as it is and of the Legislature as the direct representative of the people to make such changes therein as it deems best for the future. The present decision is nothing but judicial legislation made clear in the opinion which applies the change prospectively as if it were a legislative enactment, which may be necessary if the court is to engage in legislation.
This is particularly ill-advised in the present case when as late as 1955, in considering this same question, this court in Muller v. Nebraska Methodist Hospital, 160 Neb. 279 , 70 N. W. 2d 86 , expressly stated that if changes were to be made in the law under consideration, it should be done by the Legislature which has heretofore declined to do so.
■ It is stated in the majority opinion that the previous rule was court made and that is advanced as a sufficient license for the court to change the law when it sees fit *189 to do so. When the rule was adopted in Duncan v. Nebraska Sanitarium & Benevolent Assn., 92 Neb. 162 , 137 N. W. 1120 , 41 L. R. A. N. S. 973, Ann. Cas 1913E 1127, it is quite evident from the decisions cited therein that our previous holding was part of the common law which was adopted by statute, section 49-101, R. R. S. 1943.
This decision indicates whenever existing law in the opinion of this court needs changing, it is the duty of this court to reconsider it.
The scope of the court’s work will accordingly be greatly extended into a field hitherto reserved for the Legislature whose duty it is to resolve conflicting social problems, a field in which this court is not fitted.' It is the function of courts to declare the law and not to create it.
In the past, attorneys and clients have governed their actions in reliance on what our decisions have said the law was. If judicial legislation is to take place, they will be required to- consider whether those decisions were right in the first place or need revision. Their tasks will also be made more difficult.
Carter, J., joins in this dissent.