Collins v. Memorial Hospital of Sheridan County

Decision Date15 May 1974
Docket NumberNo. 4262,4262
Citation521 P.2d 1339
PartiesPatricia COLLINS, Appellant (Plaintiff below), v. MEMORIAL HOSPITAL OF SHERIDAN COUNTY, Wyoming, et al., Appellees (Defendantsbelow).
CourtWyoming Supreme Court

William K. Archibald of Holstedt & Archibald, Sheridan, Sandall, Moses & Cavan, Billings, Mont., for appellant (plaintiff below).

Weston W. Reeves of Cardine, Vlastos & Reeves, Casper, for appellees (defendants below).


Mr. Justice GUTHRIE delivered the opinion of the court.

Plaintiff filed her complaint, seeking damages for personal injuries, joining Memorial Hospital of Sheridan County, Bertha Anderson, an employee thereof, and St. Paul Fire & Marine Insurance Company, for personal injuries sustained on November 21, 1971, while she was a paying patient at the hospital. Bertha Anderson was the employee attending the plaintiff when this accident occurred and St. Paul is the insurer of the hospital, having issued a liability policy to it. Memorial Hospital and Anderson both filed motions for summary judgments herein based upon the ground of sovereign municipal immunity, and the court entered final judgment thereon in favor of these defendants but overruled the summary judgment insofar as the suit against St. Paul was concerned. Although the appellant seeks a ruling on the question of whether this suit may be maintained solely against St. Paul on the policy on the theory of a third-party beneficiary, this question is not presented because there is no appealable order entered in this suit. Insofar as St. Paul is concerned it would be improper in this case to consider the matter of its liability in a direct action.

The trial court sustained the motions for summary judgment on behalf of defendants hospital and Anderson, which ruling was obligatory upon the trial court by virtue of the cases of Maffei v. Incorporated Town of Kemmerer, 80 Wyo. 33, 338 P.2d 808, rehearing denied 340 P.2d 759, and Davis v. Board of County Commissioners of County of Carbon, Wyo., 495 P.2d 21. From the framework and factual situation of this case, when it is carefully viewed, the result is apparent that the rule of Maffei results in a confusing and undesirable situation and that the only party who will be in any manner benefited thereby is St. Paul, the insurance carrier.

We have heretofore held in Gonzales v. Personal Collection Service, Wyo., 494 P.2d 201, 206, that the power of the trustees of a county hospital board are general and quite broad with the power to manage, operate, and control the hospital and its operations, § 18-318, W.S.1957, along with the power to sue and be sued. The hospital board having exercised and asserted the power to buy the insurance, having purchased the same, and having spent public funds or obligated public funds in the sum of approximately $5,000, would indeed be in a peculiar position if it would now attempt to assert on its own behalf that it had no right to purchase such insurance and that in effect it had arbitrarily and without proper authority made expenditure of public funds, and thereafter without assignment of any cogent reason requested St. Paul to assert this claim of immunity. 1 The inference is clear from the use of the word 'agrees' that this was in response to a request by St. Paul. It is hard to reconcile with fairness and justice, after the expenditure of public funds, that the board of trustees of the hospital should reserve an arbitrary right to select those who may benefit under this policy and adjudicate their own liability thereby.

This factual situation does not raise any question of general municipal sovereign immunity as such but only the effect of the procurement and coverage of a liability policy and the question of general municipal immunity will in no manner be considered herein. The factual situation revealed by the record demonstrates with clarity the vice inherent, and what this writer views as a too-broad extension of this general doctrine. This court in retrospect may well have been guilty of a decision which is fraught with unfairness both to claimants and to taxpayers. It seems proper to give notice of the modern tendency to limit and restrict the application of municipal sovereign immunity, Myers v. City of Palmyra, Mo., 355 S.W.2d 17, 21, 92 A.L.R.2d 791.

The legislative reaction to the holding in Maffei decided in 1959 was immediate as we find that in 1961 the legislature authorized municipalities to carry liability insurance with the limitation that no recovery should be had to exceed the limits of the policy and forbade such cities or towns to plead governmental immunity under these circumstances, § 15.1-4, W.S.1957, C.1965. This is solid evidence of the recognition of the injustice of such holding and it is difficult to believe that our legislative bodies would only seek to remove such injustices after they have been suffered by some innocent bystander, and have been signalling the disapproval of the application of this rule by their several enactments clearly indicating their disapproval of this rule and that the protection by liability insurance is not against public policy.

There is a further rather anomalous situation in our statutes which allowed hospitals operated by hospital districts to purchase such insurance prior to the date of this accident, § 35-136.7, W.S.1957, 1973 Cum.Supp. After this accident and in 1973 by legislative enactment, § 18-323.7, W.S.1957, 1973 Cum.Supp., county hospitals, as defendant herein, were so authorized. It is impossible to imagine a more unfair and ridiculous situation than that upon the same day in various governmentally operated hospitals in Wyoming a patient in one class hospital would have protection and a patient in another class hospital would have no protection. It is this, along with the other factual situations, that makes this writer believe that the time is now ripe for a close examination of the doctrine of Maffei and Davis, which hold that municipal sovereign immunity cannot be waived by the carrying of liability insurance in absence of specific legislative authority. It would appear that the legislature sought to restrict this rule in part by the enactment of several statutes. 2 This is a court created rule and can lay no claim to any basis of ancient origins.

The writer has oft been at odds with the theory that when the courts help create an 'Aegean stable' the legislature has the sole responsibility for cleaning up the mess and in this case we would defeat the ends of justice by requiring specific legislative action in every instance where recovery may be sought. The writer freely concedes the importance, necessity, and strength of the doctrine of state decisis and following precedents in areas which might or do threaten the stability of the law, and which may or might conceivably interfere with vested rights, but is unable to utilize this doctrine as a justification for the continuance of an unfair and improper rule which operates to the detriment of those who may suffer tortious injury from such institutions and which may be ameliorated at least to the extent of the liability insurance coverage without harm to any person or institution.

Particularly would it seem appropriate when the root doctrine of municipal immunity itself has been the subject of vigorous attacks-many jurisdictions having abrogated it.

It may be conceded that numerical superiority supports the rule of the Maffei case, but a blind unquestioning acceptance without critical examination of the logic and basis for such cases can become a form of evasion of judicial responsibility and reduce an appellate court to the function of a mere scorekeeper.

It is possible that the preoccupation of the court in the Maffei case with the question of municipal sovereign immunity may have obscured a very narrow question and that is the same question which may well be reconsidered here, whether the purchase of liability insurance and the holding of such liability policy might well be considered a waiver of such immunity. It is particularly important in this writer's view that a great number of these cases upon which this theory rests were written during a time before liability insurance became an ordinary fact of life recognized and employed by a large number of our citizens for their protection and with an understanding of the purpose thereof. Maffei, being the root case, this discussion although directed at that case must be construed as including Davis wherein no critical examination of this rule was made.

When the defendants hospital and Anderson are, as in this case, protected by liability insurance, there is no reason for the invocation or continued application of this rule. 3 The legal maxim, cessante ratione legis cessat ipsa lex, is certainly applicable.

A close examination of the authorities and subsequent treatment in their respective jurisdictions upon which Maffei relies as persuasive authority for the proposition that there can be no waiver of a municipality's immunity except by specific legislative authority is most enlightening, and is of and in itself illustrative of what is the modern and fairest trend. The case of Pohland v. City of Sheyboygan, 251 Wis. 20, 27 N.W.2d 736, was directly and implicitly reversed in the case of Marshall v. City of Green Bay, 18 Wis.2d 496, 118 N.W.2d 715, 717. Interestingly, the Supreme Court of Wisconsin prospectively abrogated the entire doctrine of tort immunity for municipal corporations in the case of Holytz v. City of Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618, 625, in a most scholarly opinion. The standing of Rittmiller v. School Dist. No. 84 (Wabasso, Minn.), D.C.Minn., 104 F.Supp. 187, is not enhanced by the fact that the result should be completely different today because Minnesota has directly abolished the doctrine of municipal tort immunity, Spanel v. Mounds View...

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