Dille v. St. Luke's Hospital

• Decision Date: 09 September 1946
• Docket Number: No. 39641.,39641.
• Citation: 196 S.W.2d 615
• Parties: HOMER R. DILLE, Appellant, v. ST. LUKE'S HOSPITAL.
• Court: Missouri Supreme Court

196 S.W.2d 615

HOMER R. DILLE, Appellant, v. ST. LUKE'S HOSPITAL.

No. 39641.

Supreme Court of Missouri.

Division Two, September 9, 1946.

Motion for Rehearing or to Transfer to Banc Overruled, October 14, 1946.

Appeal from Jackson Circuit Court. — Hon. Paul A. Buzard, Judge.

AFFIRMED.

Clif Langsdale and Clyde Taylor for appellant.

(1) Basic considerations to be had in mind in consideration of the question of law involved. First. This is not a contest between a person negligently injured and a charity, but is between the injured person and an insurance company. Neither the charity nor its trust funds can be diverted or otherwise affected. Second. The contract of insurance is not one to indemnify the charity, but is one for the benefit of the injured person (Sec. 6010, R.S. 1939), and a direct obligation both to the charity and the injured person. Third. The immunity of a charity in Missouri from tort liability is based alone upon the trust fund doctrine, which affords immunity solely for the purpose of preventing diversion of trust funds. Where the reason for the immunity fails, the immunity fails. Fourth. Collection of a judgment against the insurance company does not go beyond the obligation of the contract, but is in strict accord therewith. Fifth. If the insurance company is not liable through the charity to the plaintiff, there is no basis to which the insurance contract could attach, and no consideration rendered by the company. The insurance company is estopped from taking any such position. (2) The courts of other states, which have adopted the trust fund doctrine, have decided that where liability insurance prevents diversion of the trust fund, judgment may be rendered against the charity, to be satisfied only by recourse to the liability of the insurance company. O'Connor v. Boulder Colorado Sanitarium Assn., 105 Colo. 259, 96 Pac. (2d) 835, 133 A.L.R. 819; St. Mary's Academy v. Solomon, 77 Colo. 463, 238 Pac. 22, 42 A.L.R. 964; McLeod v. St. Thomas Hospital, 170 Tenn. 423, 95 S.W. (2d) 917; Vanderbilt University v. Henderson, 23 Tenn. App. 135, 127 S.W. (2d) 284; Annotations in 133 A.L.R. 819. (3) The sole reason and basis in Missouri, for the total immunity of charities from tort liability, is the trust fund doctrine. This doctrine is that however harsh it may be, it is better public policy to permit persons negligently injured or even killed, to go without remedy, than it is to permit diminution or diversion of trust funds from the purpose for which the trust is created. This means the sole reason for granting immunity is non-diversion of trust funds. It necessarily follows that immunity will not be granted where no diversion of trust funds can result. Adams v. Union Hospital, 122 Mo. App. 675, 99 S.W. 453; Whittaker v. St. Luke's Hospital, 137 Mo. App. 116, 117 S.W. 1189; Nicholas v. Evangelical Deaconess Home, 281 Mo. 182, 219 S.W. 643; Roberts v. Kirksville College of Osteopathy, 16 S.W. (2d) 625; Hope v. Barnes Hospital, 227 Mo. App. 1055, 55 S.W. (2d) 319; Eads v. Young Women's Christian Assn., 325 Mo. 577, 29 S.W. (2d) 701. (4) Where the reason for immunity fails, the rule of immunity fails. The reason for immunity fails here in this case and immunity fails as regards the insurance company. 11 C.J. 224; Re Mathison, 122 Mo. App. 437, 99 S.W. 502; Taylor v. Pullen, 152 Mo. 434, 537 S.W. l.c. 1086; Black's Law Dictionary; Broom, Law Axioms; Schultz v. Stutter, 3 Mo. App. 137; Buford v. Keokuk Baking Co., 3 Mo. App. 159; Russell v. Russell, 122 Mo. App. 235, 26 S.W. 677; Johnson County v. Wood, 84 Mo. 489. (5) The whole trend of modern decision is toward abolishment of immunity or broadening exceptions to immunity. For the court to extend immunity to new and novel situations, based upon the trust fund doctrine, would be for the court to place itself in conflict with the unmistakable trend of judicial decisions. President and Directors of Georgetown College v. Hughes, 130 F. (2d) 810. The condition of the authorities upon this subject matter is noted and many cases are collected in the notes found in 14 A.L.R. 572; 23 A.L.R. 925; 30 A.L.R. 455; 33 A.L.R. 1369; 42 A.L.R. 971; 62 A.L.R. 724; 86 A.L.R. 951; 109 A.L.R. 1190; Eads v. Young Women's Christian Assn., 325 Mo. 577, 22 S.W. (2d) 701. (6) The rendition of judgment against the charity, to be satisfied by resort alone to the liability of the insurance company, is not to alter the contractual obligation of the insurance company, but on the contrary to enforce the same. Steden v. Jewish Hospital Assn., 187 S.W. (2d) 439; O'Connor v. Boulder Colorado Sanitarium Assn., 96 Pac. (2d) 835. (7) The insurance company has estopped itself by contract from asserting in defense of the charity that the latter is immune from liability to the extent of the insurance, for the reason that the very existence of the insurance effectively prevents diversion of trust funds. 19 Am. Jur. 635; Sovereign Camp v. Newsom, 142 Ark. 132, 219 S.W. 759, 14 A.L.R. 1903; State ex inf. v. Missouri Utilities, 331 Mo. 337, 53 S.W. (2d) 394, 89 A.L.R. 607; 21 C.J. 1202; Broom, Legal Maxims (8 Ed.), p. 135. (8) Consideration of those cases from other states, which hold that the presence of liability insurance does not affect the question of immunity, or lack thereof, of charities for tort liability, demonstrates that such decisions have no application under the Missouri trust fund doctrine. These cases are collected in a note to 145 A.L.R. 1336; Mississippi Baptist Hospital v. Moore, 156 Miss. 676, 126 So. 465, 67 A.L.R. 1106; Susman v. Young Men's Christian Assn. of Seattle, 101 Wash. 487, 172 Pac. 554; Herndon v. Massey, 217 N.C. 610, 8 S.E. (2d) 914; Enman v. Boston University, 207 Mass. 299, 170 N.E. 43; Stonaker v. Big Sisters Hospital, 116 Cal. App. 375, 2 Pac. (2d) 950; Williams v. Church Home, 3 S.W. (2d) 753, 62 A.L.R. 741.

Madden, Freeman, Madden & Burke and Ralph M. Russell for respondent.

(1) Defendant, admittedly a charitable corporation, is immune from liability in tort. This immunity is based upon sound public policy. Stedem v. Jewish Memorial Hospital Assn., 187 S.W. (2d) 469; Eads v. Y.W.C.A., 29 S.W. (2d) 701; Adams v. University Hospital, 122 Mo. App. 675, 99 S.W. 453; Whittaker v. St. Luke's Hospital, 137 Mo. App. 116, 117 S.W. 1189; Nicholas v. Evangelical Deaconess Home, 219 S.W. 643; Roberts v. Kirksville College of Osteopathy & Surgery, 16 S.W. (2d) 625; Hope v. Barnes Hospital, 227 Mo. App. 1055, 55 S.W. (2d) 319; Myers v. Y.M.C.A. of Quincy, 316 Ill. App. 177, 44 N.E. (2d) 755; Saffron v. Y.M.C.A. of Chicago, 317 Ill. App. 149, 45 N.E. (2d) 555; Tort Liability of Charitable Institutions — Appleman, 22 A.B.A.J. 48; Immunity of Charitable Institutions from Liability in Tort, 6 St. Louis Law Review 226. (2) The rule of immunity, being based upon sound public policy, should not be changed by the courts. Todd v. Curators of University of Mo., 347 Mo. 460, 147 S.W. (2d) 1063; DeGroot v. Edison Institute, 306 Mich. 339, 10 N.W. (2d) 907; Gregory v. Salem General Hospital, 39 Ore. 303, 153 Pac. (2d) 837; Fields v. Mountainside Hospital, 35 Atl. (2d) 701. (3) The existence or non-existence of liability insurance is immaterial, and defendant's status is not changed to create liability where none exists. Stedem v. Jewish Memorial Hospital Assn., 187 S.W. (2d) 469; Schau v. Morgan, 241 Wis. 334, 6 N.W. (2d) 212; DeGroot v. Edison Institute, 306 Mich. 339, 10 N.W. (2d) 907; O'Connor v. Boulder Colorado Sanitarium, 105 Colo. 259, 96 Pac. (2d) 835; St. Mary's Academy v. Solomon, 77 Colo. 463, 238 Pac. 22; 14 C.J.S., 1944 Cum. Ann., p. 30; Gamble v. Vanderbilt University, 138 Tenn. 616, 200 S.W. 510; Anderson v. Armstrong, 180 Tenn. 56, 171 S.W. (2d) 401; McLeod v. St. Thomas Hospital, 170 Tenn. 423, 95 S.W. (2d) 917; Vanderbilt University v. Henderson, 23 Tenn. App. 135, 127 S.W. (2d) 284; 14 C.J.S., sec. 75, p. 550; 10 Am. Jur., sec. 152, p. 701; Susman v. Y.M.C.A., 101 Wash. 487, 172 Pac. 554; Levy v. Superior Court, 74 Cal. App. 171, 239 Pac. 1100; Stonaker v. Big Sisters Hospital, 116 Cal. App. 374, 2 Pac. (2d) 520; Williams, Admx. v. Church Home for Females, 223 Ky. 355, 3 S.W. (2d) 753; Enman v. Trustees of Boston University, 270 Mass. 294, 170 N.E. 43; McKay v. Morgan Memorial Co-op. Ind. & Stores, 272 Mass. 121, 172 N.E. 68; Greatrex v. Evangelical Deaconess Hospital, 261 Mich. 327, 246 N.W. 137; Mississippi Baptist Hospital v. Moore, 156 Miss. 676, 67 A.L.R. 1106, 126 So. 465; Knox County Tuberculosis Sanitarium v. Moss, 5 Tenn. App. 589. (4) Defendant is not estopped from asserting immunity of a charitable corporation. State v. Missouri Utilities Co., 53 S.W. (2d) 394; New York Life Ins. Co. v. Silverstein, 53 Fed. (2d) 986; Lavine v. Indemnity Ins. Co., 183 N.E. 897; Macomber v. Minneapolis Fire Ins. Co., 204 N.W. 331; Carew v. General Casualty Co., 65 Pac. (2d) 689; Fidelity Phoenix Fire Ins. Co. v. Rapier, 60 So. (2d) 513. (5) Sections 6009 and 6010, Revised Statutes of Missouri, 1939, have no application. Secs. 6009, 6010, R.S. 1939; Stedem v. Jewish Memorial Hospital Assn., 187 S.W. (2d) 469; Williams v. Pemiscot County, 345 Mo. 415, 133 S.W. (2d) 417; Homan v. Employers' Reinsurance Corp., 345 Mo. 650, 136 S.W. (2d) 289.

LEEDY, J.

This is an action for personal injuries alleged to have been suffered by plaintiff while a patient in, and resulting from the negligence of the agents and servants of, the defendant hospital. Defendant, by answer, denied the existence of any negligence but claimed immunity from liability because of its status as an incorporated charity under Sec. 5436 et seq., R.S. '39, and corresponding sections of Mo. R.S.A. The reply admitted the corporate existence of defendant as a charity, and alleged the Aetna Casualty and Surety Company had issued to defendant a policy of insurance by which it "agreed to pay, in behalf of defendant herein, all sums which said defendant should become obligated to pay by reason of the...