Abernathy v. Sisters of St. Mary's, 53883

• Decision Date: 10 November 1969
• Docket Number: No. 53883,53883
• Citation: 446 S.W.2d 599
• Parties: Edward ABERNATHY, Plaintiff-Appellant, v. SISTERS OF ST. MARY'S d/b/a St. Mary's Hospital, Defendant-Respondent.
• Court: Missouri Supreme Court

Page 599

446 S.W.2d 599

Edward ABERNATHY, Plaintiff-Appellant, v. SISTERS OF ST. MARY'S d/b/a St. Mary's Hospital, Defendant-Respondent.

No. 53883.

Supreme Court of Missouri, En Banc.

Nov. 10, 1969.

Burton H. Shostak, Hoffman & Shostak, St. Louis, for appellant; Klamen & Weisman, Clayton, of counsel.

R. E. Keaney, Moser, Marsalek, carpenter, Cleary & Jaeckel, St. Louis, for respondent.

Forrest P. Carson, George A. Rozier, Jefferson City, Elliott P. Koenig, St. Louis, for amici curiae.

Carson, Inglish, Monaco & Coil, Jefferson City, for amicus curiae, Missouri Hospital Assn.

Rassieur, Long, Yawitz, Koenig & Schneider, St. Louis, for amicus curiae, Hospital Assn. of Metropolitan St. Louis.

HENLEY, Chief Justice.

This is an action by a patient against a hospital for $35,000 damages for personal injuries allegedly suffered as a result of negligence of defendant. Defendant moved for summary judgment, alleging that it is, and operates the hospital as, a benevolent, religious, nonprofit corporation and charitable institution and, therefore, is immune from liability for its torts. The motion was sustained, judgment was entered for defendant, and plaintiff appealed.

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, ¹ to move from his bed to his bathroom where he was left by the employee unattended; that due to his weakened condition he fell to the bathroom floor and suffered multiple injuries, including a fracture of his right leg; that his injuries were the result of negligence of the hospital in failing (1) to provide handrails for his support in lowering and raising his body to and from the toilet seat; and (2) to furnish a nurse or attendant to remain with and assist him in these necessary body functions. We assume the truth of these allegations of fact and those of the motion for summary judgment.

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, ² while still under the influence of an anesthetic, suffered post-operation burns from hot water bottles administered by incompetent nurses employed by defendant. Judgment was for plaintiff and the Court of Appeals reversed, holding, in substance, that it is the public policy of this state that a charitable institution is immune from liability for damages for its own negligence in selecting incompetent employees and for the negligence of its employees. In adopting this policy the court reasoned that it is in the best interest of every member of the public, and the state itself, that charitable institutions designed either for the alleviation of human suffering or for the '* * * moral being of mankind * * *' be built up and maintained by the funds of the benevolent and that those institutions be protected from any action which might tend either to close the purses of doners or deplete its funds and thereby prevent the institution from performing its functions. In other words, the court said, in effect, that it is better that the individual suffer injury without compensation from the negligent charitable institution than to risk the judicially assumed probability that the public and state would be deprived of the benefits of the charity; that the interest of the latter is so supreme that the former must be sacrificed to it.

While resting the immunity doctrine on public policy, the court refers to two legal theories as justification and support. The first theory is that of 'implied waiver,' that he who accepts the benefit of charity does so upon the implied assurance that he will not assert against the institution a claim for damages for injuries resulting from its negligence or the negligence of its employees. The second is the 'trust fund' theory, that the funds of the institution are given and held in trust for a charitable purpose and shall not be used to compensate persons suffering injury resulting from the tortious acts of the institution or its employees, because that use would be contrary to the intent of the donor and beyond the powers of the trustee.

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. ³ The doctrine laid down in the Adams case has been followed in this state sixty-odd years ⁴ and was last thoroughly considered, and reexamined and reaffirmed eight years ago in Schulte v. Missionaries of La Salette Corporation of Missouri, Mo., 352 S.W.2d 636.

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 government, 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 states as to the reasons for and the extent of the doctrine, ⁵ and this confusion expanded geometrically year by year as more states adopted the doctrine. In fact, there was no theory upon which the doctrine of immunity had been bottomed by the courts of one state that had not been assailed and criticized by the courts of others, notwithstanding the fact they arrived at the same result. In 1942, when the late Mr. Justice Rutledge ⁶ wrote his now famous landmark opinion in President and Directors of Georgetown College v. Hughes, 76 U.S.App.D.C. 123, 130 F.2d 810, advocating abandonment of the doctrine, only six states ⁷ remained where full liability was the rule. Since that year the doctrine has been under continuous attack so devastating that today it lies almost in ruins. ⁸ By the time the instant case was submitted the situation had reversed; only four states remained where full immunity was the rule: Massachusetts, Missouri, Rhode Island and South Carolina. ⁹ We do not have the time nor space to list or discuss the cases where the rule is full liability or full immunity, or where the rule lies somewhere between these two extremes. Those interested will find them collected in Rabon v. Rowan Memorial Hospital, Inc., (1967), 269 N.C. 1, 152 S.E.2d 485, l.c. 496--498; to these there should be added the cases cited in Professor Davis' article referred to in our footnote 9.

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 baisc concept of justice. The Court of Appeals in the Adams case, ¹⁰ and this court in subsequent decisions, recognized the rule, but deliberately chose to...