Muskopf v. Corning Hospital Dist.

• Decision Date: 27 January 1961
• Citation: 55 Cal.2d 211,359 P.2d 457,11 Cal.Rptr. 89
• Parties: , 359 P.2d 457 Louisa C. MUSKOPF et al., Appellants, v. CORNING HOSPITAL DISTRICT, Respondent. Sac. 7229.
• Court: California Supreme Court

Page 89

11 Cal.Rptr. 89

55 Cal.2d 211, 359 P.2d 457

Louisa C. MUSKOPF et al., Appellants, v. CORNING HOSPITAL DISTRICT, Respondent.

Sac. 7229.

Supreme Court of California, In Bank.

Jan. 27, 1961.

Rehearing Denied Feb. 21, 1961.

P. M. Barceloux, Burton J. Goldstein, Goldstein, Barceloux & Goldstein, Chico and San Francisco, and Reginald M. Watt, Chico, of counsel, for appellants.

Glenn D. Newton and William W. Coshow, Redding, for respondent.

Stanley Mosk, Atty. Gen., Charles A. Barrett, Asst. Atty. Gen., and Frederick G. Girard, Deputy Atty. Gen., amici curiae on behalf of respondent.

TRAYNOR, Justice.

Plaintiff was a paying patient in the Corning Memorial Hospital. She and her husband allege that because of the negligence of the hospital staff she fell and further injured the broken hip for which she was being treated. Defendant demurred on the ground that the Corning Hospital District is immune from liability for tort under the rule of Talley v. Northern San Diego hospital District, 41 Cal.2d 33, 257 P.2d 22, which held that a hospital district was a state agency exercising a governmental function and as such was immune from tort liability. Defendant's demurrer was sustained, and upon plaintiffs' refusal to amend the court entered judgment for defendant. Plaintiffs appeal.

Plaintiffs contend that operating a hospital is a proprietary function of government and that in any event the rule of governmental immunity should be discarded.

After a re-evaluation of the rule of governmental immunity from tort liability we have concluded that it must be discarded as mistaken and unjust.

The rule of hospital district tort immunity was based on cases upholding county hospital immunity. Sherbourne v. Yuba County, 21 Cal. 113, 114-115; Calkins v. Newton, 36 Cal.App.2d 262, 264-268, 97 P.2d 523; Griffin v. County of Colusa, 44 Cal.App.2d 915, 919-922, 113 P.2d 270. These cases rest on the grounds that a county, like state, can act only in governmental capacity and that a hospital is protected by the rule of charitable immunity. The latter doctrine has been abolished in this state. (Silva v. Providence Hospital, 14 Cal.2d 762, 764-776, 97 P.2d 798; Malloy v. Fong, 37 Cal.2d 356, 364-367, 232 P.2d 241), and it is now settled that the state, like a municipality, can act in a proprietary capacity. People v. Superior Court, 29 Cal.2d 754, 761-762, 178 P.2d 1, 40 A.L.R.2d 919. Subsequent to the Talley case, other decisions of this court have expanded the area of the state's proprietary activities. Guidi v. State, 41 Cal.2d 623, 626-628, 262 P.2d 3; Pianka v. State, 46 Cal.2d 208, 210, 293 P.2d 458.

The shifting fortune of the rule of governmental immunity as applied to hospitals is illustrative of the history of the rule itself. From the beginning there has been misstatement, confusion, and retraction. At the earliest common law the doctrine of 'sovereign immunity' did not produce the harsh results it does today. It was a rule that allowed substantial relief. It began as the personal prerogative of the king, gained impetus from sixteenth century metaphysical concepts, may have been based on the misreading of an ancient maxim, and only rarely had the effect of completely denying compensation. ¹ How it became in the United States the basis for a rule that the federal and state governments did not have to answer for their torts has been called 'one of the mysteries of legal evolution.' Borchard, Governmental Responsibility in Tort, 34 Yale L.J., 1, 4.

The rule of county or local district immunity did not originated with the concept of sovereign immunity. The first case to hold that local government units were not liable for tort was Russell v. Men of Devon, 100 Eng.Rep. 359. The case involved an action in tort against an unincorporated county. The action was disallowed on two grounds: since the group was unincorporate there was no fund out of which the judgment could be paid; and 'it is better that an individual should sustain an injury than that the public should suffer an inconvenience.' 100 Eng.Rep. 359, 362. The rule of the Russell case was first brought into this country by Mower v. Inhabitants of Leicester, 9 Mass. 247, 249. There the county was incorporated, could sue and be sued, and there was a corporated fund out of which a judgment could be satisfied. Ignoring these differences, the Massachusetts court adopted the rule of the Russell case, which became the general American rule.

If the reasons for Russell v. Men of Devon and the rule of county or local district immunity ever had any substance they have none today. Public convenience does not outweigh individual compensation, and a suit against a county hospital or hospital district is against an entity legally and financially capable of satisfying a judgment. Thus, it was judicially recognized in England over half a century ago that a public hospital is liable for its torts. Hillyer v. St. Bartholomew's Hospital (1909), 2 K.B. 820, 825.

The rule of governmental immunity for tort is an anachronism, without rational basis, and has existed only by the force of inertia. See Borchard, Governmental Responsibility for Tort, 34 Yale L.J. 1, 129, 229; Casner and Fuller, Municipal Tort Liability in Operation, 54 Harv.L.Rev. 437; Repko, Commentary on Municipal Tort Liability, 9 Law. & Cont.Prob. 214. It has been judicially abolished in other jurisdictions. Molitor v. Kaneland Community Unit District No. 302, 18 Ill.2d 11, 163 N.E.2d 89, 90-96; Colorado Racing Commission v. Brush Racing Ass'n, 136 Colo. 279, 316 P.2d 582, 585-586; Hargrove v. Town of Cocoa Beach, Fla., 96 So.2d 130, 132-134, 60 A.L.R.2d 1193.

None of the reasons for its continuance can withstand analysis. No one defends total governmental immunity. In fact, it does not exist. It has become riddled with exceptions, both legislative (Gov.Code, §§ 50140, 53050; Ed.Code, § 903; Veh.Code, § 17001) and judicial (Chafor v. City of Long Beach, 174 Cal. 478, 481-483, 163 P. 670, L.R.A.1917E, 685; People v. Superior Court, 29 Cal.2d 754, 761-762, 178 P.2d 1, 40 A.L.R.2d 919), and the exceptions operate so illogically as to cause serious inequality. Some who are injured by governmental agencies can recover, others cannot: one injured while attending a community theater in a public park may recover (Rhodes v. City of Palo Alto, 100 Cal.App.2d 336, 341-342, 223 P.2d 639), but one injured in a children's playground may not (Farrell v. City of Long Beach, 132 Cal. App.2d 818, 819-820, 283 P.2d 296); for torts committed in the course of a 'governmental function' there is no liability, unless the tort be classified as a nuisance (Phillips v. City of Pasadena, 27 Cal.2d 104, 106, 162 P.2d 625). The illogical and inequitable extreme is reached in this case: we are asked to affirm a rule that denies recovery to one injured in a county or hospital district hospital, although recovery may be had by one injured in a city and county hospital. Beard v. City and County of San Francisco, 79 Cal.App.2d 753, 755-768, 180 P.2d 744.

Article XX, section 6 of the California Constitution provides: 'Suits may be brought against the State in such manner and in such courts as shall be directed by law.' Health and Safety Code section 32121, subdivision (b), provides that a hospital district shall have the power 'To sue and be sued in all courts and places and in all actions and proceedings whatever.' Since the Legislature has set forth the manner (all actions and proceedings) and the courts (all courts) in which suits against a hospital district may be brought it would seem to follow that in such suits judgment may be entered against the hospital district.

Previous cases, however, have differentiated between the state's consenting to be sued and its substantive liability, and have held that the language used in section 32121, subdivision (b), and in article XX, section 6 gives only the state's consent to be sued and does not waive any defenses or immunities. Thus, an 1893 statute (Stats.1893, p. 57, now Gov.Code § 641) providing that those having claims for negligence against the state were authorized 'to bring suit thereon * * *' was held not to waive the state's sovereign immunity but only to give its consent to be sued when it was otherwise liable. Denning v. State, 123 Cal. 316, 319, 55 P. 1000, citing Chapman v. State, 104 Cal. 690, 693, 38 P. 457; Melvin v. State, 121 Cal. 16, 23, 53 P. 416.

It is contended, however, that article XX, section 6 should be interpreted as also having substantive significance and establishing the rule of immunity. Such an interpretation would be contrary to People v. Superior Court, 29 Cal.2d 754, 761-762, 178 P.2d 1, 40 A.L.R.2d 919, Guidi v. State, 41 Cal.2d 623, 626-628, 262 P.2d 3, and Pianka v. State, 46 Cal.2d 208, 210, 293 P.2d 458, which extended the state's liability to its proprietary activities. If the section has any substantive significance it would appear to be a waiver of immunity. On its face it seems to say that the state may be held liable when suits are brought against it in accordance with a legislatively prescribed procedure. Consistent, however, with our previous consturction of essentially identical statutory language, we hold that article XX, section 6 provides merely for a legislative consent to suit.

It is strenuously urged, however, that it is for the Legislature and not the courts to remove the existing governmental immunities. Two basic arguments are made to deny the court's power: first, that by enacting various statutes affecting immunity the Legislature has determined that no further change is to be made by the court; and second, that by the force of stare decisis the rule has become so firmly entrenched that only the Legislature can change it. Neither argument is persuasive.

The doctrine of governmental immunity was originally court made. The Legislature early adopted a statute allowing the state to 'sue or be sued' (Gov.Code, § 641) and a similar s...