Hemenway v. Presbyterian Hospital Ass'n of Colo.

• Decision Date: 24 October 1966
• Docket Number: No. 21875,21875
• Citation: 161 Colo. 42,419 P.2d 312
• Parties: Robert E. HEMENWAY, Plaintiff in Error, v. The PRESBYTERIAN HOSPITAL ASSOCIATION OF COLORADO, a Colorado corporation, Defendant in Error.
• Court: Colorado Supreme Court

Page 312

419 P.2d 312

161 Colo. 42

Robert E. HEMENWAY, Plaintiff in Error, v. The PRESBYTERIAN HOSPITAL ASSOCIATION OF COLORADO, a Colorado corporation, Defendant in Error.

No. 21875.

Supreme Court of Colorado, En Banc.

Oct. 24, 1966.

Clarence A. Decker, Denver, for plaintiff in error.

Saunders, Snyder & Ross, M. E. MacDougall, Denver, for defendant in error.

MOORE, Justice.

Robert E. Hemenway, hereinafter refered to as the plaintiff, commenced this action against The Presbyterian Hospital Association seeking to recover damages allegedly sustained by him due to the negligence of the hospital. After the filing of an answer in which the allegations of negligence on the part of the hospital were denied, the parties entered into a stipulation which, in pertinent part, was as follows:

'2. An additional defense, inherent in the issues as formed, as agreed, shall be presented in the following form:

"The Defendant is an eleemosynary institution existing solely and entirely for religious, charitable and educational purposes; at the time at which the claim made in this action arose Defendant had no insurance to cover said claim; at and since the time of the claim it has had no assets and has now no assets, nor is it empowered to hold or have any assets, except for the above mentioned purposes; and has not and is not authorized to have, receive or take any monetary profits.'

It is agreed that said facts as stated in said defense are true.

'3. The defense next above stated presents a matter of law which the parties desire to have settled as a preliminary matter and before presentation of facts with respect to the claims of negligence made on behalf of Plaintiff since a ruling by the court that said defense is adequate would be made the subject by Plaintiff of an appeal to the Supreme Court. The cost of such an appeal would be much smaller than if that point, together with all other points in a full fact trial, were presented to the Supreme Court. The Plaintiff is financially unable to bear large expenses in connection with this litigation.

'4. It has been agreed between the parties that briefs on the law regarding the above mentioned defense will be presented to the court in the hope and expectation that a ruling on the matter of Briefs were filed upon the points of law presented by the above stipulations and on April 23, 1965, the trial court entered findings and judgment which included pertinent portions of the written stipulations of the parties. The court further adjudged:

law involved can be made separately and prior to any further proceedings herein.'

'That any judgment obtained against the defendant institution, if satisfied, would necessarily deplete the trust fund of said institution.

'That the issues of law in the instant case are essentially the same as the issues of law in Brown v. St. Luke's Hospital Association, 85 Colo. 167, 274 P. 740. In this particular case it also appeared that a judgment against the charitable trust would deplete its trust funds, and at page 173, (274 P. 740) the Supreme Court said:

"We * * * hold that where the testimony affirmatively discloses a charitable trust, and a judgment against said trust, if satisfied, will deplete the trust fund, under such circumstances, a plaintiff cannot maintain an action against such a defendant.'

This case has never, according to the understanding of this Court, been overruled.

'That in the case of Michard v. (Myron) Stratton Home, 144 Colo. 251, 355 P.2d 1078, the Supreme Court concluded that a judgment obtained against a charitable institution cannot be satisfied out of the trust funds of said institution, Counsel for both plaintiff and defendant have agreed by Stipulation that satisfaction of any judgment obtained in the instant case would necessarily deplete the trust fund of the defendant institution.

'That the result of the rulings in the Brown and Michard cases above referred to indicate that any further litigation in the present matter would be completely useless as the trust fund of the defendant is not available for the satisfaction of any judgment plaintiff might obtain and there are no other funds available for such a purpose, nor can such funds come into existence in the future.'

Judgment was entered dismissing the action.

Under the broad coverage of the stipulation in the instant case (which goes far beyond the factual situation that was present in Michard v. Myron Stratton Home, supra,) no useful purpose would be served by directing this action to proceed to judgment. It is clear that any judgment that might be obtained by plaintiff could never be satisfied unless this court in this case refuses to be governed by the rule of stare decisis.

Counsel for plaintiff readily concedes that if the judgment is to be reversed it will be necessary for this court to overrule its decisions in the cases mentioned by the trial court in its findings. This we are unwilling to do. The following language from the opinion of this court in Faber v. State of Colorado, 143 Colo. 240, 353 P.2d 609, is equally applicable here:

'We recognize that there have been numerous criticisms of the rule applied in this case, emanating from various legal writers, judges and students of the law. However, their criticisms and comments should be addressed to the legislature where constitutional authority rests to amend the law. Jerauld County v. Saint Paul-Mercury Indemnity Co., 76 S.D. 1, 71 N.W.2d 751; Maffei v. Incorporated Town of Kemmerer (80 Wyo. 33), 338 P.2d 808 (340 P.2d 759); Lee v. Dunklee, 84 Ariz. 260, 326 P.2d 1117; Garrett v. Escambia County Hospital Board, 266 Ala. 201, 94 So.2d 762.'

The judgment is affirmed.

FRANTZ and PRINGLE, JJ., dissent.

McWILLIAMS, Justice (concurring).

I concur in the majority opinion and would simply add these few comments of my own.

As I understand the cases, in Colorado the doctrine of so-called charitable immunity means only that charitable trust Hence, the doctrine of charitable immunity as it exists in Colorado is ordinarily no ground for a dismissal under R.C.P.Colo. 12 of an action brought against any such charitable institution. See Michard v. Myron Stratton Home, 144 Colo. 251, 355 P.2d 1078.

funds are immune from levy and execution and the doctrine as heretofore announced by this court does Not mean that a charitable institution, as such, is [161 Colo. 46] immune from suit or from having a judgment rendered against it in a tort action, for example. See St. Luke's Hospital Association v. Long, 125 Colo. 25, 240 P.2d 917, 31 A.L.R.2d 1120.

However, in the instant case under the particular terms and provisions of the stipulation between the parties, the position of Hemenway, as I understand it, is that he desires and asks that his action be dismissed Unless this court is prepared to overrule our many prior decisions holding that charitable trust funds are immune from levy and execution. I would not overrule these several prior decisions on this particular matter and accordingly, under this circumstance, I would, and do, hold that the trial court committed no error in dismissing Hemenway's complaint.

PRINGLE, Justice (dissenting):

I most respectfully dissent.

In my view, the action here is premature. In my opinion, this Court has laid down the doctrine that in this State charitable immunity is not immunity from suit or liability for tort, but only a recognition that trust funds cannot be seized upon by execution nor appropriated to the satisfaction of tort liability. Michard v. Myron Stratton Home, 144 Colo. 251, 355 P.2d 1078; St. Luke's Hospital Ass'n. v. Long, 125 Colo. 25, 240 P.2d 917, 31 A.L.R.2d 1120.

In addition, I would overrule entirely and prospectively the doctrine of charitable immunity in this State. My views are expressed in the following cases which overruled earlier cases espousing the doctrine of charitable immunity in those states: Darling v. Charleston Community Memorial Hosp., 33 Ill.2d 326, 211 N.E.2d 253; Ray v. Tucson Medical Center, 72 Ariz. 22, 230 P.2d 220; Haynes v. Presbyterian Hosp. Ass'n., 241 Iowa 1269, 45 N.W.2d 151; Noel v. Menninger Foundation, 175 Kan. 751, 267 P.2d 934; Parker v. Port Huron Hosp., 361 Mich. 1, 105 N.W.2d 1; Bing v. Thunig, 2 N.Y.2d 656, 163 N.Y.S.2d 3, 143 N.E.2d 3; Flagiello v. Pennsylvania Hosp., 417 Pa., 486, 208 A.2d 193; Hungerford v. Portland Sanitarium & Benevolent Ass'n., 235 Or. 412, 384 P.2d 1009; Friend v. Cove Methodist Church, Inc., 65 Wash.2d 174, 396 P.2d 546.

There is no need to lengthen the reports by citing at length from these cases ideas which are not original with me.

FRANTZ, Justice (dissenting):

Regardless of the merits of the contentions of the parties in this particular case, the majority's reliance on the quotation from Faber v. Colorado, 143 Colo. 240, 353 P.2d 609, is unsettling. If the quotation contains the implications which I believe can be drawn from it, its use is indeed unfortunate. To expressly state or suggest that the legislature has the sole authority to set aright this court's erroneous or ill-advised pronouncements is to open a Pandora's box of legal problems.

An implication to be drawn from the quotation, in the context of this decision, is that a court has no constitutional authority to correct its own mistakes and that, if the court misstates the law, its hands are tied constitutionally until the legislature unties them. Such represents an unseemly self-imposed abridgement of the court's authority. Another implication to be drawn is that the correction of a mistake by the court constitutes an amendment of the law. Neither implication should be given even a semblance of viability by this court.

This court has on a number of occasions--as have the courts of the other forty-nine states of this Union--discarded a rule which has been shown upon further reflection to have been wrong, and Courts do not amend laws. Courts discover and declare principles. Should a court discover and declare a wrong...