Higgins v. Emerson Hospital

• Decision Date: 09 May 1975
• Citation: 328 N.E.2d 488,367 Mass. 714
• Parties: John HIGGINS v. EMERSON HOSPITAL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 488

328 N.E.2d 488

367 Mass. 714

John HIGGINS v. EMERSON HOSPITAL.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued March 6, 1975.

Decided May 9, 1975.

George P. Luker, Maynard, for plaintiff.

Lionel H. Perlo, Boston, for defendant.

Before TAURO, C.J., and QUIRICO, BRAUCHER, HENNESSEY and KAPLAN, JJ.

HENNESSEY, Justice.

This appeal brings before us the issue whether, by reason of the language in Colby v. Carney Hosp., 356 Mass. 527, 528, 254 N.E.2d 407 (1969), we should hold that the defense of charitable immunity is not available to the defendant hospital. The plaintiff's appeal was entered in the Appeals Court and was transferred to this court for direct appellate review on our order pursuant to G.L. c. 211A, § 10(A).

The plaintiff brought an action in tort and contract for injuries allegedly sustained by him on June 17, 1970, while he was an inpatient at the defendant hospital. The case was tried on June 20, 1974, before a Superior Court judge and a jury. The plaintiff's attorney made an opening statement that asserted the facts of the plaintiff's accident and injury, including a stipulation that the defendant hospital at the time of the accident was a Massachusetts charitable corporation organized under G.L. c. 180, and that it was operated exclusively for charitable purposes. The judge thereupon directed verdicts for the defendant as to both counts of the plaintiff's declaration.

We treat the case as one in which, as to both counts, one in tort and one in contract, the plaintiff's opening statement alleged a case which was not susceptible to directed verdicts but for the application of charitable immunity a defense which had been affirmatively pleaded by the defendant. The parties and the judge have clearly considered that the single issue is whether, by reason of the Colby case, or any other consideration, we should hold that charitable immunity is not applicable in this case. We hold that the doctrine is applicable and that the judge properly directed verdicts for the defendant as to both counts.

The injury here occurred after the date of the decision of the Colby case (December 23, 1969), but before the effective date, September 16, 1971, of St. 1971, c. 785, § 1, now G.L. c. 231, § 85K, which abolished the doctrine of charitable immunity. We have since held that the statute is not retrospective in effect (RICKER V. NORTHEASTERN UNIV., --- MASS. --- , 279 N.E.2D 671 (1972)^A), and it is thus clear that the plaintiff here takes no benefit from the statute.

The plaintiff contends that, because of the intimation in the Colby case as to be possible future abolishment of charitable immunity, that doctrine is not applicable in this case. He argues that from the date of the decision the various charitable institutions, as well as the insurance industry and members of the public, were clearly given notice of and could conform their conduct in reliance on the fact that claims of charitable immunity raised with respect to incidents occurring after the date of the decision, December 23, 1969, would be rejected.

He further contends that had the Legislature not acted on the subject matter in 1971 there would be no question that this court would rule the charitable immunity doctrine abolished as to the instant case.

We reject the arguments. In Colby v. Carney Hosp., 356 Mass. 527, 528, 254 N.E.2d 407, 408 (1969), we said that any renunciation of the doctrine of charitable immunity 'should be accomplished prospectively and that this should be best done by legislative action' (emphasis supplied). At no time has this court abolished the doctrine. In RICKER V. NORTHEASTERN UNIV., SUPRA, --- AT --- , 279 N.E.2D AT 672,^B we said, speaking of the Colby ca...