HENLEY, Chief Justice.
This is an action by a patient against a hospital for $35,000 damages for personal
The question presented is whether Missouri should continue to adhere to the doctrine that a charitable institution is immune from liability for the tortious acts of its agents and employees. We abolish the doctrine.
This case and another, Garnier et al. v. St. Andrew Presbyterian Church of St. Louis, Mo., 446 S.W.2d 607, presenting the same question and decided concurrently herewith, were first briefed, argued and submitted in Division. Those submissions were set aside and both cases transferred to the court, en banc, on the court's own motion, where they were again argued and submitted. We acknowledge the assistance furnished the court by the brief and argument of amici curiae, Missouri Hospital Association and Hospital Association of Metropolitan St. Louis, as well as the argument, briefs and supplemental briefs of the parties.
Plaintiff's petition alleges, in substance, that while a paying patient in defendant's hospital he was assisted by Marie Taylor, an employee of the hospital and an original defendant in this action,
The doctrine of immunity of charitable institutions from liability for tort was adopted in this state in 1907 by a decision of the Kansas City Court of Appeals in Adams v. University Hospital, 122 Mo.App. 675, 99 S.W. 453. Plaintiff, Adams, a paying patient,
The court observed that both reason and the great weight of authority support its views and the adoption of this policy, citing, among other cases, McDonald v. Massachusetts General Hospital, 120 Mass. 432, 21 Am.Rep. 529.
In obedience to the long line of decisions in this state upholding the doctrine of immunity there was no course open to the trial judge but to enter judgment for defendant.
Plaintiff recognizes the state of our law on the subject, but he makes a direct, frontal attack on it, saying it denies basic, substantive rights of the individual; that it is not fair now, has never been fair and will never be fair; that whatever the reason for the doctrine in its inception, it does not exist today and the doctrine should be abolished. More or less obliquely, he says also that the fact defendant carries public liability insurance and that its insuror would pay any damages for injury resulting from its negligence removes the reason for and the need, if any ever existed, of protecting the institution from damage claims. Defendants and amici curiae contend, contra, that the reasons for the doctrine still exist; that charitable institutions should continue to be immune from tort liability so long as they are operated for the alleviation of human suffering of the moral well-being of mankind, and so long as no part of the institution's funds is profit from operation inuring to the benefit of a private person; that the fact the institution is protected by public liability insurance has no relation to the basic issue of liability vel non. Defendant and amici curiae contend also that the doctrine of immunity is so firmly embedded as public policy that if it is to be modified or abolished it properly should be done by the legislature rather than the court. Amici curiae add an interesting contention: that "due to the substantial amount of support received by hospitals from the goverment, via modern social security legislation, to hold hospitals liable for their torts would in essence violate the doctrine of sovereign immunity."
When Missouri adopted the doctrine, the courts in most of her sister states that had considered the question accorded immunity to charity. However, there was at that time considerable confusion among the
We have reexamined and reconsidered the doctrine as a rule of public policy in the light of what is common knowledge of the facts of life today and conclude that it must be abolished. In expressing our reasons for this conclusion we acknowledge that much of what we say has already been said by the courts of our sister states. As a matter of fact there is little, if indeed there is anything, that has not been said by those courts about and against the doctrine as public policy as well as the several legal theories enunciated and advanced in its support.
Plaintiff argues that the general rule is, and always has been, that there must be a remedy for every wrong; that the doctrine of immunity runs directly counter to this basic concept of justice. The Court of Appeals in the Adams case,
The public is doubtless still interested in the maintenance of charitable institutions and we acknowledge society's debt to them and recognize their right to every benefit and assistance which the law can justly allow. But the day has arrived when these institutions must acknowledge the injustice of denying compensation to a person injured as a result of their negligence or the negligence of their agents or employees; when they must acknowledge that all persons, organizations and corporations stand equal before the law and must be bound or excused alike. They must recognize that "* * * immunity fosters neglect and breeds irresponsibility, while liability promotes care and caution * * *;"
The theory of "implied waiver," namely, that he who accepts the benefit of charity impliedly agrees he will not assert against the institution any right of recourse for wrong done him is a mere fiction. The fiction is based upon impossibility in many instances. It is impossible to say that a conscious or unconscious grievously injured accident victim carried to the emergency room of a charitable hospital, or an ill person received at such hospital unconscious, or a conscious ill person who enters such hospital by arrangement of others waives his rights by accepting its benefits. To say that an insane person, a minor or babe in arms waives his rights when he receives or there is administered to him the benefits of any charitable institution does violence to the facts; such persons have no legal capacity to will away their rights. The waiver theory obviously cannot be applied alike to all persons and this fact points up the fallacy in relying upon it to support immunity as a rule of public policy.
The "trust fund" theory as support for the doctrine of immunity rests on an illogical, and therefore weak, foundation. The essence of the theory is that the institutions' funds, given and held for charitable purposes, cannot be used to pay judgments resulting from tort claims. Thus, the rationale of the theory is identified solely with the right to satisfaction of a judgment, rather than to the fundamental question of whether an injured person has a right to maintain an action and secure a judgment. If it is reasonable to say, and it is, that the existence of liability insurance does not create liability where none exists,
The "trust fund" theory embraces all that is involved in the doctrine of immunity as public policy. As the court said in the Dille case,
There are other persuasive reasons for abandoning the doctrine. Two of these are: (1) that neither those who organize or support charitable institutions nor the courts have the authority to put charities beyond the pale of the law applicable to all; (2) the protection of life and limb by organized society is of greater importance to mankind then any species of charity.
Nor may reason or the law sanction a distinction between "big" or what may be considered by many to be "little" charitable institutions. There are, no doubt, many of the latter struggling for existence. But, what are the definitions of these two classes, and more important and to the point, where between the two may the law, with reason and in justice, draw the line? The injured person suffers no less damage by the carelessness of the "little" than he does by that of the "big" charitable institution. What was said in 1880 by the Supreme Court of Rhode Island is as apt today as it was then: "The suggestion that the funds would be exhausted by judgments, presupposes that the hospital is to be continued under negligent management. If that be so, then the sooner its funds are exhausted by compensating those injured, and persons
We find no substance in the argument of amici curiae that since hospitals receive a large percentage of their income from the federal government through the various Social Security programs the government and hospitals have formed a partnership in which the governmental partner "* * * must have some voice in determining whether a hospital can be liable in a tort action * * *," and, therefore, "* * * to hold a hospital liable for its torts would be in essence violating the doctrine of sovereign immunity." The partnership premise is a fiction, but, assuming the partnership, the legislative voice of the governmental partner has not been heard to say in establishing these programs that its cloak of immunity has been placed around the shoulders of the hospital. Income received by a hospital through federal Social Security programs does not create between the government and the hospital a partnership in a legal sense and does not bestow sovereign immunity upon such charitable institutions.
Defendant and amici curiae recognize that the court has the authority to abolish or modify the doctrine of charitable immunity, but insist the doctrine as public policy is so deeply and firmly embedded in our law that if it is to be modified or abolished the change should be made by the legislature rather than the court. They rely primarily on Schulte v. Missionaries of La Salette Corporation of Missouri, Mo., 352 S.W.2d 636, in which the court expressed the view now urged upon us. Although eight years ago the court was of the opinion this change in the law of torts, if made, should be made by the legislature, that does not mean the court is forever bound to remain of that opinion. A different view was expressed in 1966 by Finch, J., in his concurring opinion in Koprivica v. Bethesda General Hospital, Mo., 410 S.W.2d 84, 87, and we are now of the opinion his position, so clearly stated in that case, represents the proper function of the court in evolving the law of torts.
It is neither realistic nor consistent with the common law tradition to wait upon the legislature to correct an outmoded rule of case law. Nor is legislative silence as instructive or persuasive as it was considered to be in the Schulte case.
For the reasons stated, we hold that a nongovernmental charitable institution is liable for its own negligence and for the negligence of its agents and employees acting within the scope of their employment. Adams v. University Hospital, supra, and all other decisions of like effect are overruled.
Having abolished the doctrine of charitable immunity, it remains for us to determine the point of departure from precedent. We are cognizant of the fact that retrospective application of our decision could result in great hardship to those institutions which have relied on our prior decisions upholding the doctrine of charitable immunity. Therefore, feeling that justice will best be served by prospective application of the decision announced today, we hold that the new rule shall apply to this case and to all future causes of action arising after November 10, 1969, the date of the filing of this opinion. Koebel v. Tieman Coal & Material Co., 337 Mo. 561, 85 S.W.2d 519, 524; Molitor v. Kaneland Community Unit District No. 302, 18 Ill.2d 11, 163 N.E.2d 89, 96-98, 86 A.L.R.2d 469[2, 3]; Parker v. Port Huron Hospital, (Mich.) 105 N.W.2d 1, 13-15[4-5].
The judgment is reversed and the cause remanded for further proceedings.
FINCH, SEILER, MORGAN, and HOLMAN, JJ., concur.
DONNELLY, J., concurs in result in separate concurring opinion filed.
STORCKMAN, J., absent.
DONNELLY, Judge (concurring in result).
I concur in the result on the basis of the particular facts and circumstances of this particular case but I do not concur in the complete abolition of the charitable immunity doctrine in Missouri. In my opinion, the public policy of the State would be better served by considering each case on its own facts and by determining whether the defendant in each case is entitled to the benefit of the charitable immunity doctrine. Cf. Blatt v. Geo. H. Nettleton Home For Aged Women, 365 Mo. 30, 275 S.W.2d 344.
As to the defendant hospital, we note it is also common knowledge that there is available and most persons carry hospitalization insurance to reduce their loss of capital and, in some instances, income, as a result of prolonged and expensive necessary hospital confinement. The proceeds of this insurance, and the availability of medicare and medicaid and their benefit payments to those who have reached that point in life where their income production has decreased, or stopped, inures to the benefit of these charitable institutions and reduces to that extent the demands upon pure charity.