Schroeder v. City of St. Louis

• Decision Date: 13 March 1950
• Docket Number: No. 2,No. 41648,41648,2
• Citation: 25 A.L.R.2d 200,360 Mo. 293,228 S.W.2d 677
• Parties: , 25 A.L.R.2d 200 SCHROEDER et al. v. CITY OF ST. LOUIS
• Court: Missouri Supreme Court

Page 677

228 S.W.2d 677

360 Mo. 293, 25 A.L.R.2d 200

SCHROEDER et al. v. CITY OF ST. LOUIS.

No. 41648.

Supreme Court of Missouri, Division No. 2.

March 13, 1950.

Motion to Transfer to Court en Banc Denied April 10, 1950.

William Barton, Jonesburg, N. Murry Edwards and Ninian M. Edwards, Jr., St. Louis, for appellants.

James E. Crowe, City Counselor, John P. McCammon, Associate City Counselor, Robert G. Dowd, Asst. City Counselor, St. Louis, for respondent.

WESTHUES, Commissioner.

Plaintiffs filed this action against the City of St. Louis seeking to recover damages for the death of their infant daughter who, it was alleged, came to her death while she was a paying patient at the City Hospital. Plaintiffs alleged that the death of their daughter was the result of negligence. The city filed a motion to dismiss which the trial court sustained and plaintiffs appealed.

The sole question is whether the City of St. Louis is liable in tort in the operation of its city hospital.

Plaintiffs' theory is that the operation of a hospital by a city is not a governmental function. Plaintiffs also stress the fact that they paid for the services rendered to their daughter. The city relies upon the law which exempts cities from liability in tort while exercising a governmental power. 38 Am.Jur. 265, Sec. 573; 26 Am.Jur. 594, Sec. 13. The preservation and safeguarding of public health is within the police power of a city government. That is the generally recognized rule. See 62 C.J.S., Municipal Corporations, Sec. 133, p. 278, and cases there cited. By the weight of authority the establishment and maintenance of a hospital by a city is considered a governmental activity, and hence the city is held not liable in tort actions. 63 C.J.S., Municipal Corporations, Sec. 905, p. 311; 26 Am.Jur. 594, Sec. 13.

A few states hold to the contrary as evidenced by cases cited by plaintiffs. They are: City of Miami v. Oates, 152 Fla. 21, 10 So.2d 721; City of Okmulgee v. Carlton, 180 Okl. 605, 71 P.2d 722; City of Shawnee v. Roush, 101 Okl. 60, 223 P. 354; Sanders v. City of Long Beach, 54 Cal.App.2d 651, 129 P.2d 511, loc. cit. 516(9), citing Bloom v. City and County of San Francisco, 64 Cal. 503, 3 P. 129. In all of the above cases the courts held that a city was not performing a governmental function when operating a hospital. The cities were therefore held liable.

In jurisdictions where cities are held not liable, the rule is not changed by the fact that the patient pays for the service. Gillies v. City of Minneapolis, D.C., 66 F.Supp. 467; Lloyd v. City of Toledo, 42 Ohio App. 36, 180 N.E. 716; City of Dallas v. Smith, 130 Tex. 225, 107 S.W.2d 872. Missouri is found among the states holding cities not liable in such cases on the theory that maintaining a hospital is a governmental function. Murtaugh v. City of St. Louis, 44 Mo. 479; Zummo v. Kansas City, 285 Mo. 222, 225 S.W. 934. Plaintiffs cite the Murtaugh case and urge that this court held the city not liable because the plaintiff was a charity case, thereby inferring that a paying patient could recover in a tort action. We do not so read the opinion. In the statement of facts mention was made that plaintiff was not a paying patient, however, such fact was not again referred to in the opinion, and nonliability was based solely on the theory that the city was exercising a governmental power. It will be noted that a number of cases from other jurisdictions were considered and cited. In the Zummo case, supra, nonliability was based on the same theory. The Murtaugh case, supra, was cited as authority. In the Zummo case this court quoted the following from Dillon on Municipal Corporations, 5th Ed., Sec. 1661: 225 S.W. 936, "The power or even duty on the part of a municipal corporation to make provision for the public health and for the care of the sick and destitute appertains to it in its governmental or public, and not in its corporate or, as it is sometimes called, private capacity."

Nonliability in cases of this nature is based on a principle of law. The fact that a patient is a charity case or a paying patient has no material bearing on the merits of the case. If in operating a hospital, a city is performing a governmental function, there is no liability in tort actions. That principle must be applied uniformly to all alike. In Dille v. St. Luke's Hospital, 355 Mo. 436, 196 S.W.2d 615,...