The opinion
Mr. Justice Crampton, dissenting:
I cannot concur in the opinion adopted by the court. In the body of the opinion it is stated that the presence or absence of insurance has no bearing upon the question of liability but only upon the collectibility of any judgment which may be rendered. If such is the holding it would seem entirely irrelevant whether the complaint alleges the presence of insurance or is silent on the matter, as in either case the action would proceed to judgment on its merits, the collection of any such judgment being a matter for subsequent determination after the appropriate steps had been taken. It would follow, also, that such holding is contra to that in Parks v. Northwestern University, 218 Ill. 381 . Regardless of the reasons stated in that case, the decision was not merely that the assets of the university were exempt from execution on the judgment but that plaintiff was barred from recovering the judgment itself. If, therefore, this court is now holding that the presence of unprotected assets does not' affect liability — in other words, that judgment must be rendered on the merits regardless of the charitable nature of the defendant institution — it is difficult to see how the present holding can possibly be reconciled with that of the Parks case. Moreover, the question presumably of controlling importance, namely the manner in which a judgment can be collected or enforced, is not before the court in the present state of the record. The issue to be determined is whether defendant is immune from liability, not whether a liability reduced to judgment can be subsequently satisfied from assets held by the institution.
On the other hand, the concluding portion of the majority opinion implies that the complaint must be dismissed if defendant’s trust funds will be impaired or depleted by prosecution of the action. If this is the holding, then liability itself, and not merely the collectibility of the judgment, is dependent upon whether the presence of assets having the requisite character and extent appears from the pleadings or from some other source. It is manifest that such a basis for liability would be fraught with innumerable collateral inquiries and uncertainties. Disputes will arise, not only as to the character of particular assets but as to the specific amount of nontrust assets necessary to suspend or abate immunity: questions which must be resolved before the actual amount of the judgment is known.
In my opinion, neither basis for the disposition of this controversy is sound. The primary issue of immunity should be frankly faced and the reasons and justifications which support it should be re-examined in the light of fundamental common-law principles. The fact that this court has in the past adhered to the doctrine of immunity is highly persuasive. But it is not conclusive. Nor does the supposition that the trend of decision in other courts opposes rejection of the doctrine afford an adequate ground for following a similar course in this court. To reject a proposed rule, however meritorious its basis, for no better reason than that it conflicts with the trend of decisions is to subordinate the judgment of this court to that of tribunals in other jurisdictions. I think the crucial policy of exempting charitable institutions from tort liability is of sufficient gravity to require a further appraisal, by this court of the reasons which sustain it. The issue here presented should be resolved upon the merit of those reasons rather than by the adoption of criteria which merely purport to extend or modify the doctrine and which, I believe, can result in little but confusion in the law.
Mr-. Justice Wilson, also dissenting.