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August 19, 1954


The opinion of the court was delivered by: GOURLEY

It appears that on August 12, 1953, the plaintiffs, citizens of Missouri, instituted the above action against the Mennonite Publication Board, an Indiana corporation, doing business under the name of the Mennonite Publishing House, at Scottdale, Pennsylvania, in the Western District of Pennsylvania. The plaintiffs' Complaint alleged that in June, August, and October of 1952, the defendant printed, published, and distributed throughout the United States 10,500 copies of a book entitled, 'Life With Life' which contained numerous libelous statements against the plaintiffs and constituted an unlawful invasion of plaintiffs' right to privacy.

This matter comes before the court on defendant's Motion for Summary Judgment, Rule 56, Federal Rules of Civil Procedure, 28 U.S.C.A.

 Defendant's motion is premised upon the thesis that the complaint has failed to state a cause of action in that the Mennonite Publication Board is a charitable non-profit corporation and as such is not subject to legal liability for plaintiffs' damages.

 A motion for summary judgment should not be granted if there is an issue presented as to the existence of any material fact, Sarnoff v. Ciaglia, 3 Cir., 165 F.2d 167; and in considering such a motion, the court should take the view of the evidence most favorable to the party against whom it is directed, giving to that party the benefit of all favorable inferences that may be drawn from the evidence. Ramsouer v. Midland Valley R. Co., 8 Cir., 135 F.2d 101.

 Under generally recognized conflict of laws principles, the substantive law to be applied in a tort action is that of the place of wrong, the lex loci delicti, or in other words, the place where the defamatory statement is communicated. Restatement, Conflict of Laws, Section 377(5); Sweeney v. Philadelphia Record Co., 3 Cir., 126 F.2d 53; Kilian v. Stackpole Sons, Inc., D.C., 98 F.Supp. 500; Preveden v. Croation Fraternal Union of America, D.C., 98 F.Supp. 784.

 The booklets in question were distributed in Missouri and Pennsylvania. The fact that the Mennonite Publication Board was incorporated in Indiana could in no way prove controlling as to the imposition of liability upon a charitable organization, in view of the fact that the rule of charitable immunity has been held to be a strong public policy of the Commonwealth of Pennsylvania. Bond v. City of Pittsburgh, 368 Pa. 404, 84 A.2d 328.

 A foreign law or a statute of another state will not be enforced in the courts of a state where a cause of action in tort arises under the doctrine of comity, where the law of the foreign state is contrary to the public policy of the state where the cause of action arises. Gray v. Blight, 10 Cir., 112 F.2d 696; 21 C.J.S., Courts, § 545; Griffin v. McCoach, 313 U.S. 498, 61 S. Ct. 1023, 85 L. Ed. 1481; Hughes v. Lucker, 3 Cir., 174 F.2d 285; Hartwell v. Piper Aircraft Corp., 3 Cir., 186 F.2d 29; Magee v. McNany, D.C., 10 F.R.D. 5, 12.

 Accordingly, I must conclude that the law of Pennsylvania and Missouri, the locale wherein the alleged torts were committed, must be applied to the instant proceeding.

 It is a doctrine too well established to be shaken, and as unequivocally declared in Pennsylvania as in any other state, that a public charity cannot be made liable for the tort of its servants. Fire Insurance Patrol v. Boyd, 120 Pa. 624, 15 A. 553, 1 L.R.A. 417; Gable v. Sisters of St. Francis, 227 Pa. 254, 75 A. 1087; Siidekum, Adm'r v. Animal Rescue League of Pittsburgh, 353 Pa. 408, 45 A.2d 59; Betts v. Young Men's Christian Association of Erie, 83 Pa. Super. 545; Paterlini v. Memorial Hospital Ass'n of Monongahela City, 3 Cir., 247 F. 639.

 A review in detail of the Missouri law on this question would prove superfluous. Suffice it to say, that Missouri has the same public policy against liability of charitable corporations for torts as does Pennsylvania, and plaintiffs' position could in no way be strengthened by invoking the substantive law of that state. Hinman v. Berkman (United Jewish Appeal), D.C., 85 F.Supp. 2.

 The crucial question for determination, in the present motion, is whether defendant is a 'charity' within the meaning of the rule of charitable immunity.

 The primary facts have been stipulated between the parties and amply lend themselves to resolving the issue:

 1. The defendant is a non-profit corporation, incorporated March 31, 1908 under the laws of the State of Indiana and duly registered and qualified to engage in business in Pennsylvania as a foreign non-profit corporation. The original capital of the defendant, namely, $ 16,953.59, was contributed by members of the Mennonite Church. Under the Corporate Charter the defendant corporation is managed by a Board of Trustees constituted as follows: Each Mennonite and Amish Mennonite Conference in North America shall have the privilege to choose one member, and the General Conference shall have the privilege to choose three members. Each shall hold office for the term of two years or until their successors are duly elected and installed.

 2. Article 2 of the Articles of Incorporation provides that 'The object of this Association shall be to establish, own and control a church publication house for the publication and dissemination of the literature of the Mennonite churches to awaken a greater interest in good ...

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