Michael v. Hahnemann Medical College & Hospital of Philadelphia, Inc.

• Decision Date: 27 June 1961
• Citation: 404 Pa. 424,172 A.2d 769
• Parties: Kenneth MICHAEL, Appellant, v. HAHNEMANN MEDICAL COLLEGE & HOSPITAL OF PHILADELPHIA, INC., and William Ellis and Nicholas T. Viek. Doris T. ELLSWORTH, Administratrix of the Estate of William Juliano, Deceased, Appellant, v. ST. AGNES HOSPITAL.
• Court: Pennsylvania Supreme Court

Page 769

172 A.2d 769

404 Pa. 424

Kenneth MICHAEL, Appellant, v. HAHNEMANN MEDICAL COLLEGE & HOSPITAL OF PHILADELPHIA, INC., and William Ellis and Nicholas T. Viek.

Doris T. ELLSWORTH, Administratrix of the Estate of William

Juliano, Deceased, Appellant, v. ST. AGNES HOSPITAL.

Supreme Court of Pennsylvania.

June 27, 1961.

Rehearing Denied July 31, 1961.

Harry Lore, Dorfman, Pechner, Sacks & Dorfman, Philadelphia, for appellant Kenneth Michael.

Michael A. Foley, John J. Tinaglia, Philadelphia, for appellee Hahnemann Medical College and Hospital of Philadelphia, Inc.

James E. Beasley, Jerome E. Ornsteen, Cohen, Ornsteen & Beasley, Philadelphia, for appellant Doris T. Ellsworth.

Cornelius C. O'Brien, Jr., Duane, Morris & Heckscher, Morris Duane, John B. Martin, Philadelphia, for St. Agnes Hospital.

Stephen B. Narin, Marvin Garfinkel, Narin & Garfinkel, Quinlan, Ozorwoski & Brandschain, Philadelphia, for Nelly R. Devaud, Ex'x of Estate of Albert J. Devaud, dec'd.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, BENJAMIN R. JONES, COHEN, BOK and McBRIDE, JJ.

CHARLES ALVIN JONES, Chief Justice.

The appeals in these two cases will be disposed of in this one opinion since the contentions of the appellants in both cases are the same. Simply stated, the question posed is whether the rule of law that an eleemosynary institution is not liable for the torts of its agents and employees shall now be abrogated by this court's decision.

In the case in which St. Agnes Hospital is the defendant, the plaintiff administratrix sued to recover damages for allegedly negligent medical and surgical care and service given her decedent, while in the hospital, by two doctors in their capacity as alleged agents of the hospital. In the other case, the plaintiff sued the Hahnemann Medical College and Hospital of Philadelphia, Inc., jointly with two doctors, for serious and permanent injury allegedly suffered by the plaintiff as the result of negligence and carelessness in the performance of an operation on the plaintiff by one of the doctors, while under the control and supervision of the other, who was a staff physician and surgeon of the hospital. In each case, the hospital answered claiming charitable immunity and, on motions on the pleadings, a judgment in favor of each hospital was entered. The present appeals are from those judgments.

The rule of charitable immunity has long since been in force in Pennsylvania, see Fire Insurance Patrol v. Boyd, 1888, 120 Pa. 624, 15 A. 553, 1 L.R.A. 417. If the doctrine of charitable immunity is, as the appellants contend, no longer suited to the times and should be dispensed with, the proper way to accomplish that end is prospectively by legislation and not retroactively by judicial ukase. Under our democratic form of government, it is the legislature that can competently declare and promulgate public policy and not the courts. It is to be hoped, therefore, that, with this current decision, the appellants' contention will assume a state of quiescence so far as further insistent court action is concerned. Perhaps that is too much to hope for. It is just three years since the identical contention was urged upon us and rejected in Knecht v. St. Mary's Hospital, 392 Pa. 75, 140 A.2d 30.

What we said in this connection in the Knecht case (392 Pa. at page 78, 140 A.2d at page 32) bears repetition here. 'A rule of non-liability, even though judge-made, that has become as firmly fixed in the law of this State as has the charitable immunity from tort liability, should not be abrogated otherwise than by a statute made to operate prospectively. If the rule were to be abandoned by court decision, it would lay open to liability all charities for their torts of the past that were not barred by the statute of limitations at the time of the rendition of the rescinding decision. The injustice of such an imposition of liability upon charities that theretofore had a right to rely on the rule of immunity is readily apparent. Whereas, if and when the rule is abrogated prospectively, which the legislature could provide, all charities then made subject to tort liability for the future could protect themselves by appropriate insurance. Moreover, whether, in this day of traffic hazards from automotive vehicles of charities as well as of all others, the rule as to charitable immunity should be rescinded poses a question of public policy which falls peculiarly within the competence of the legislature.'

What Chief Justice Black said for this court in McDowell v. Oyer, 1853, 21 Pa. 417, 423, concerning stare decisis, is presently most apposite, viz., 'It is sometimes said that this adherence to precedent is slavish; that it fetters the mind of the judge, and compels him to decide without reference to principle. But let it be remembered that stare decisis is itself a principle of great magnitude and importance. It is absolutely necessary to the formation and permanence of any system of jurisprudence. Without it we may fairly be said to have no law; for law is a fixed and established rule, not depending in the slightest degree on the caprice of those who may happen to administer it. * * * It is this law which we are bound to execute, and not any 'higher law,' manufactured for each special occasion out of our own private feelings and opinions. If it be wrong, the government has a department whose duty it is to amend it, and the responsibility is not in any wise thrown upon the judiciary.'

The rule of charitable immunity in this State has been long established and oft applied. Such being the case, the imposition of liability upon charities for the negligence of their agents or employees is properly a matter for the competence of the legislature.

Judgment affirmed in appeal No. 211.

Judgment affirmed in appeal No. 275.

BELL and BOK, JJ., file concurring opinions.

MUSMANNO and COHEN, JJ., file dissenting opinions.

EAGEN, J., dissents.

BELL, Justice (concurring).

All the members of this Court and all the parties agree that beginning with Fire Insurance Patrol v. Boyd, 1888, 120 Pa. 624, 15 A. 553, 1 L.R.A. 417, and continuing through Knecht v. St. Mary's Hospital, 1958, 392 Pa. 75, 140 A.2d 30, this Court has granted immunity to charities and other eleemosynary institutions from liability for the torts of their agents, servants, workmen and employees. Today, fortunately for hospitals and all charitable institutions in Pennsylvania which do so much good, this Court has reaffirmed those decisions and that doctrine.

I join in the Opinion of the Court. However, the dissenting Opinions advocate policies which would so upset the law of Pennsylvania and would bring so much harm to hospitals and other charitable institutions, and the claimants advocate specious principles which are so inimical to and violative of well settled principles of law that I feel compelled to write this concurring Opinion ¹ to promptly answer and refute them. ²

1. The minority opinions would overrule without any legal justification decisions of this Court covering a period of over 70 years, and would not only disregard, but would effectually obliterate the last vestiges of the wise, salutary and time-tested principle of Stare Decisis.

2. The minority substitute their socialpolitical philosophy for the law which has been enunciated and reiterated by the Supreme Court of Pennsylvania for 73 years; and, equally important, the social policy they would have this Court adopt flies in the teeth of the intent of the Legislature of Pennsylvania which has refused, in nearly every session for over 70 years, to enact legislation to repeal or modify the doctrine of charitable immunity.

3. Even if we assume that the rule of charitable immunity was Judge-made, ³ the unsuccessful attempts to have it legislatively abolished or changed over a period of 70 years have made it the legislatively approved public policy of Pennsylvania. Under such circumstances, if a change should be made in this long and firmly embedded Public Policy of the Commonwealth, as the minority desire, it should be and can be abolished only by the Legislature. Nevertheless, the minority would have the Courts flaunt the policy, and inexcusably and unnecessarily usurp the functions and powers of the Legislature ⁴ when those powers are under the Constitution of Pennsylvania (and of the United States) vested solely in the Legislature (and in Congress). Article II, § 1, P.S., provides that 'The legislative power of the Commonwealth shall be vested in a General Assembly * * *'; and Article III, § 1 provides 'No law shall be passed except by bill * * *.'

The Constitution of the United States, ⁵ and similarly the Constitution of Pennsylvania created and ordained a Government composed of three great, separate and independent, yet co-ordinate Branches--the Executive, the Legislative and the Judicial. On this framework of Constitutional Government there was wisely and solidly built liberty and equal justice for all.

As this Court has aptly said: 'Nothing is clearer in the constitution than the separation of the legislative and judicial branches of our state government. Neither possesses the powers of the other, and any power inherent in the one cannot be exercised by the other.' Hoopes v. Bradshaw, 231 Pa. 485, 487, 80 A. 1098, 1099. "The whole judicial power of the Commonwealth is vested in the courts. Not a fragment of it belongs to the legislature." Commonwealth v. Scoleri, 399 Pa. 110, 134, 160 A.2d 215, 227. 'Conversely, courts may not encroach upon the powers of the legislature.' Leahey v. Farrell, 362 Pa. 52, 56, 66 A.2d 577, 579.

It is well for Courts to resist temptation and constantly recall the sage advice of Mr. Justice Frankfurter who said in Green v. United States, 356 U.S. 165, 193, 78 S.Ct. 632, 648, 2 L.Ed.2d 672: 'The admonition of Mr. Justice Brandeis that we are not a third [or super] branch of the legislature should never be disregarded.'

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