Abernathy v. Sisters of St. Mary's

59,9 Eugene ty Merle cause entitled Wallace, where- No. Vern

Parker v. heard case transferred to Missouri, County, and should Douglas application change

reinstate relator’s then change judge. He venue judicial thereon, exercising the

should act contemplates, which Rule 51.07

discretion expressed in views accordance issuance opinion. We direct provid- peremptory of mandamus writ

ing. STORCKMAN, except

All concur J..

absent. Plaintiff-Appellant, ABERNATHY,

Edward Mary’s OF MARY’S St.

SISTERS ST. d/b/a Defendant-Respondent.

No. 53883. Missouri, Supreme Court of Shostak, Shostak, Burton Hoffman & H. En Banc. Louis, appellant; Klamen & Weis- St. Nov. man, Clayton, of counsel. Moser, Marsalek, Carpen- Keaney, E.R. Louis, ter, Cleary Jaeckel, for re- St. & spondent. Rozier, Carson, George A. Forrest P. Jef- Louis, City, Koenig, Elliott P. St.

ferson for amici curiae. Coil, Carson, Inglish, Monaco & Jeffer- curiae, City, Hos- amicus Missouri

son pital Assn. Yawitz, & Koenig

Rassieur, Long, curiae, Schneider, Louis, for amicus St. Assn, Metropolitan Louis. St. HENLEY, Chief Justice. against a patient is an action

This personal damages for $35,000 hospital for injuries allegedly body suffered as a result of to and from seat; the (2) toilet and negligence of a defendant. Defendant moved furnish nurse or attendant to remain with summary is, for judgment, alleging that it and him in body assist these necessary func- operates as, benevolent, and a hospital the tions. We assume the truth of these alle- religious, nonprofit and chari- corporation gations fact and for of the motion therefore, and, table institution is immune summary judgment. liability from The motion for its was torts. The doctrine of

sustained, of charitable for de- was entered institutions from adopt- for tort fendant, plaintiff appealed. ed by in state in decision question presented is whether Mis- City Kansas Court of Appeals in Adams v. souri should continue to adhere to doc- University Hospital, 122 Mo.App. trine that is immune a charitable institution Plaintiff, Adams, paying pa- S.W. 453. from for the acts of its tortious tient,2 while still under the influence anof agents and employees. abolish We anesthetic, post-operation suffered burns doctrine. by from hot water bottles administered incompetent by nurses employed defendant. another, This case et al. Garnier Judgment plaintiff was for and the Court of Presbyterian Andrew Church St. St. Appeals reversed, substance, holding, in Louis, Mo., 607, presenting the that public policy it is the that this state concurrently question and same decided a charitable institution lia- is immune from briefed, herewith, argued and were first bility for its own in submitted Division. Those submissions selecting incompetent employees set transferred were aside and both cases negligence of its employees. adopting In court, banc, mo- en court’s own on the this policy the court reasoned it is that tion, they argued and again where were sub- every the best interest of member of the acknowledge mitted. assistance public, itself, and the state that charitable argu- furnished the court the brief designed either for the allevia- curiae, Hospital ment of amici Missouri “ * * * tion of human suffering or for the Association and Association of ” * * * moral being of mankind be built Metropolitan Louis, argu- as the as well St. up and maintained the funds of the ment, supplemental briefs and briefs of benevolent that those institutions be parties. protected might action which tend substance, petition alleges, Plaintiff’s either purses to close the of donors or de- paying patient while a defendant’s plete its funds and thereby prevent the in- hospital Taylor, he Marie was assisted stitution from performing its functions. employee original an and an words, said, effect, other the court action,1 move from his defendant that it better that the individual suffer bed to his he was left bathroom where injury compensation without neg- from the unattended; his employee that due to ligent charitable institution risk than to condition he bathroom weakened fell judicially probability assumed pub- that the multiple injuries, includ- floor suffered lic and deprived state would be bene- leg; ing a that his fracture of his fits charity; of the that the interest of the injuries were the result of supreme latter is so must former be handrails failing (1) provide sacrificed to it. raising his lowering his Taylor, strangers employee, patients, against The action invitees. The prej- by plaintiff parenthetically (99 without said court was dismissed S.W. judgment. 454) that makes no udice before final difference whether person paying nonpaying pa- in this Missouri has made no distinction tient. nonpaying type paying case between now, been fair and fair has never not on resting While fair; the reason be whatever legal never two refers to policy, court inception, in its it does support. The justification theories waiver,” today and the doctrine should exist “implied theory first says obliquely, he More less charity abolished. accepts that he who li- public the fact defendant carries also that that implied upon the assurance does so ability its would and that insurer insurance a the institution' against assert will not he any injury from damages resulting for pay resulting injuries for claim for the negligence its removes reason for the from its need, existed, protecting the ever the “trust is employees. The second damage from claims. De- the institution theory, of the institu- that funds fund” the contend, contra, fendants and amici curiae trust held in given are tion exist; for the still reasons doctrine used to purpose not be shall charitable that continue should re- persons suffering injury compensate long to be immune from tort the acts institu- sulting from the tortious they operated as are for the alleviation of that use employees, because tion or suffering human the well-being of moral the contrary donor to the intent of would mankind, long part no and so of the in- powers the the trustee. beyond profit stitution’s operation funds from reason and that The court observed both uring private person; to the authority support its great weight the that protected by the fact the institution is policy, this adoption and the views public liability insurance has no relation cases, McDonald v. citing, among other to the basic De- issue of vel non. Hospital, 120 Mass. Massachusetts General fendant and amici curiae contend also that laid Am.Rep. The doctrine 21 529.3 immunity the doctrine firmly is so em- in the Adams been followed down case has policy bedded as public that if it is to be sixty-odd years4 in this last state and was modified or abolished it properly should be considered, thoroughly and reexamined legislature done the than the rather eight years ago in v. reaffirmed Schulte court. Amici an interesting curiae add con- Corporation of La Missionaries Salette : tention “due to the substantial Mo., Missouri, 352 S.W.2d amount of by hospitals received the goverment, via social modern long In line obedience to the of decisions security legislation, hospitals to hold liable in the doctrine of im- upholding this state torts would essence violate open munity there was no course sovereign doctrine immunity.” de- judge but to enter trial fendant. doctrine, adopted When Missouri courts in had her sister states that most of recognizes the state of our law Plaintiff immunity question considered the accorded direct, subject, front- on the but he makes However, charity. there it, basic, was saying it denies sub- al attack on individual; that it is time rights among stantive considerable confusion recognized generally Gibbs, Eng.Rep. 1500, that McDonald Docks 11 v. Solliday Mayor, 1871, by de v. Massachusetts General Foreman v. Therefore, said, Q.B. first case 6 cided was the country adopting English of chari for the had foundation repudiated immunity; foundation of been and was table dead when country is dictum in Heriot’s courts of resurrected (1846) growth adopted develop Ross, 12 aid Clark & Fin. 507 it to Findlater, Fin. 6 & 894 ment nation. Duncan v. Clark new (1839), being latter followed in Hol Eng.Rep. Leonard’s, liday 4. The decisions are collected in Missouri St. However, Digest, Charities, Key 45(2). (1861) No. on in McDonald. relied by Mersey Duncan was overruled states the reasons for and extent there should be the cases cited added doctrine,5 of the and this confusion ex Professor Davis’ article referred to our panded year geometrically by year as more footnote 9. fact, adopted states In there doctrine. reexamined and reconsidered theory upon which the doctrine doctrine as a rule of been had the courts bottomed light knowledge what is common of one state that had been assailed and today facts life and conclude others, criticized the courts of notwith that it must be expressing abolished. In standing they the fact arrived at the same our reasons this conclusion we ac- result. late Mr. Justice knowledge that much of what we Rutledge wrote his landmark now famous already been said the courts of our opinion in President and Directors sister states. As a matter of fact there is Georgetown College Hughes, v. 76 U.S. little, if anything, indeed there is that has 123, App.D.C. 810, advocating 130 F.2d not been said courts about doctrine, only abandonment of the six against the public doctrine as well liability states7 remained where full was as the legal several theories enunciated and year

the rule. Since that the doctrine has support. advanced in its been under continuous attack so devas is, argues Plaintiff tating today general that the lies almost ruins.8 rule By always been, time the instant case was submitted that there must be a remedy reversed; every wrong; for only the situation had the doc- four states immunity immunity directly remained trine of where full was rule: runs counter to Massachusetts, Missouri, concept justice. basic Rhode Island and The Court of case,10 Appeals South in the Adams Carolina.9 We do not have the time and this court decisions, space subsequent rule, recognized nor to list or the cases where discuss deliberately but immunity, the rule is full excep- full chose to create an tion it. There can where the rule lies somewhere doubt that at between these the time of adoption exception two extremes. interested will Those then, find a rule of expediency11 justifiable them collected in Rowan Rabon v. Inc., Hospital, thereafter, Memorial for some time (1967), encourage 269 N.C. 1, 485, 496-498; protect charity growth 152 S.E.2d 1. c. these as vital to the Immunity nongovern- (1966). Myers Drozda, 5. Annotation: Nebraska: v. charity 183, 852, (1966). mental 180 Neb. 141 N.W.2d tort, 25 A.L.R.2d 29. North Carolina: Rabon Rowan v. Me Hospital, Inc., 1, morial 269 N.C. 152 Judge (1967). Hunger Oregon: 6. Then a the United S.E.2d States 485 Appeals Court of Columbia; the District of ford v. Portland and Benev Sanitarium Ass’n, 412, later an Associate Justice of olent 384 235 Or. P.2d 1009 Supreme (1963). Pennsylvania: Flagiello the United States Court. Pennsylvania Hospital, 486, 417 Pa. 208 Immunity note, Virginia: (1965). 7. Mich- See Charitable A.2d 193 West Ad igan, University 36 of Detroit Law Jour- kins v. St. Francis of Charles (1959). ton, nal 636 149 W.Va. 143 S.E.2d 154 (1965). During eight years 8. our de since Davis, Immunity 9. cision in Schulte v. Missionaries of La See The Charitable Salette, supra, Doctrine, Bar, re seven of the states Journal the Missouri S.W.2d, page July, 1969, p. in Schulte ferred to 353. having recently refused, 642 reconsideration, after reject 10. 99 S.W. at 456. immunity again have reconsid abrogated Hospital, ered and the doctrine: Con Parker Huron Port By necticut: statute. See Public Acts Mich. 105 N.W.2d 12. See also session, Connecticut, Inc., of the p. State Rabon v. Rowan Memorial Maryland: By statute. See 152 S.E.2d Annotated, 566A, Maryland section Code state, operation.12 development immunity but the reasons In the states where has not exception the rule not exist been accorded charity, experience do facts, Today apprehension has shown today. expressed we a new set that the here In and elsewhere that purses conditions circumstances. period donors history our would be closed and the funds of charity immunity charity operated depleted aon if these arose were institutions scale; granted the not persons engaged small most was well founded. time, quarter century operation gave of its their since the doctrine free, society; began decline, as their contribution most there has been no charity corporate gifts to but dication were not in the states which have abolished private; and the charitable institu- needs of its withdrawal has discour- were, aged part, poorly satis- tions the most donations funds “Today big charity depleted fied. business. resulting institutions have been corporate identity their often is in the demise.13 both identity donor is doubtless still interested charity. Tax donee who administers in the maintenance of charitable institutions actually deductions sometimes make acknowledge society’s them debt to charity. profitable give for doners to and recognize to every benefit Organized corporate charity takes over and assistance which the justly law can large activity areas social which other- of allow. day But the has when these arrived by govern- wise would have to be handled acknowledge injustice institutions must ment, Charity private or even business. of denying compensation injur- to a person today operation a large-scale is ed as a result their or the of salaries, expenses costs other similar and agents employees; of their or say generally. business It makes sense to to they acknowledge per- must that all pay charity that this kind of own should sons, organizations corporations and stand way, only expenses not as but to its office equal the law and must or before be bound expense pay to the to insurance of excused that They recognize alike. must as well.” Port Huron torts Parker v. “ * * * immunity and neglect fosters Hospital, supra, To- at 12-13. 105 N.W.2d irresponsibility, pro- breeds while day public liability is available insurance * * * ”14; that motes care and caution indemnify them to institutions to pro- has an interest also against by way losses tection of negligence, life limb of the individual their it is common knowl- and carry edge that most charitable institutions society require as a member of must premiums pay insurance such that those minister do to these needs who part as a carefully; thereon of their normal cost lift im- that to the mantle of prolonged expensive 12.We do make the existence lia- as a result bility pro- necessary hospital insurance criterion liabil- confinement. The ity, done; merely insurance, as some we states have ceeds of avail- and the availability widespread emphasize ability medicare medicaid payments use as a fact and circumstance that did their benefit to who have adopted. point not exist when the doctrine was in life reached that where their stop- production decreased, We have held that the existence lia- come or bility ped, on the insurance is immaterial issue to char- inures liability and to that adhere decision. itable and reduces to that ex- Hospital, pure charity. upon Mo. Dille v. St. Luke’s tent the demands Kreuger Schmiechen, 615; James, 29.16; Harper Torts, 364 Mo. S.W.2d 311. § Inc., hospital, note is As to the defendant Rabon Rowan Memorial knowledge supra, page that also common there 152 S.E.2d at carry persons available hos- most pitalization reduce insurance to loss 152 S.E.2d at 493. capital and, instances, income, in some theory munity promote tend care and The “trust fund” will to embraces all that is involved in caution. the doctrine of public policy. As the court said in the Dille “ * * * waiver,” namely, “implied theory The case,16 the distinction between charity accepts that the benefit he who theory them and the is more [the doctrine] ** against impliedly agrees not assert he will apparent *, than real [because] [a]t * * * any right the institution of recourse they bottom are the same “ * * * done him is a mere wrong fiction. immunity, decision to grant many impossibility fiction upon is based which came known as the ‘trust fund say impossible instances. theory,’ was nothing saying than more grievously in- conscious or unconscious immunity.was «granted from reasons of * * jured to the emer- accident victim carried public policy Hence, we need gency hospital, or an room of a charitable say little, anything, theory more about this person ill uncon- received such as an original support immunity beyond scious, person ill who enters a conscious what we have said about the lack of reason arrangement of others such today for continuing uphold rights by accepting its benefits. waives his as a rule public policy. a minor person, To that an insane There persuasive are other reasons for rights babe arms his when he waives abandoning the doctrine. Two of these are: receives or there is administered him the (1) that organize sup- neither those who benefits charitable institution does port charitable institutions nor the courts facts; persons violence such to the have the authority beyond to put charities legal capacity away their rights. pale all; applicable the law (2) theory obviously ap- The waiver cannot be protection organized life and limb plied points alike to all persons and this fact society greater importance to mankind up fallacy relying upon then species charity.17 public policy. as a rule of may Nor reason or the law sanction a theory The “trust fund” as distinction “big” may between be what the doctrine of an il- rests on by many considered to be “little” charitable logical, weak, and therefore foundation. are, doubt, many There no institutions. theory The essence is that the insti- But, the latter struggling for existence. funds, given tutions’ and held for charitable what the definitions class- are two purposes, cannot judgments be used to pay es, and important point, more and resulting Thus, from tort the ra- claims. law, may where between the two theory solely tionale of the is identified justice, reason and in draw the line? The right with the a judgment, satisfaction injured person damage by suffers no less rather question than to the fundamental the carelessness of than the “little” he does injured whether an person right has a by “big” that of the charitable institution. maintain an judgment. action and a secure by What was said in 1880 the Supreme If is, it is say, reasonable to it and Court Island apt today of Rhode is as itas liability existence insurance does not suggestion then: “The that the funds exists,15 create none then it where would be by exhausted judgments, presup- is also inability reasonable to that the poses is to be continued have a satisfaction does so, negligent management. under If be support exemption create or from by then sooner its funds are exhausted exemption compensating where does not otherwise exist. injured, persons and Jewish Memorial 16.Dille 15.Stedem v. v. St. Luke’s 355 Mo. Mo.App. 38, City, Ass’n of Kansas 196 S.W.2d [4, 5, 6]. 471-473 17.25 A.L.K.2d at 43. immunity upon chari- sovereign such endowing by being bestow are from deterred table institutions. mismanagement, the better of its notified well as persons interested as for all recognize and amici curiae Defendant charita- public. Particularly public, as authority that the court to abolish exist, always and ble persons modify im- liability the usefulness enforcement this munity, public but insist the doctrine as increased, persons and institutions are firmly deeply sois embedded useful- are whose informed if or abol- our law that it is to be modified mismanagement impaired by ness is be change ished the should made way all charitable negligence. In this They legislature rather than the court. the assistance that deserve stitutions rely primarily on Schulte Missionaries encouragement public of the individuals Mo., Missouri, Corporation La Salette ones are promoted are and unmeritorious in which the court ex- S.W.2d prevented upon imposing pressed the Al- urged upon view now us. persons.”18 To make benevolent years though eight ago court was two attempt distinction and to define the torts, opinion change in the law of much probably classes would lead made, legislature, should be made confusion in this as that which existed state that does not mean the court forever in the states where distinctions several opinion. A dif- bound remain of that strang- recover made between were Finch, expressed ferent view was invitees, paying nonpaying ers and J., Koprivica opinion in his concurring patients or other beneficiaries of a chari- Hospital, Mo., v. Bethesda General 410 S.W. table institution’s activities.19 84, 87, opinion 2d are now of the case, position, clearly his stated in that find argu substance represents the proper function of court hospitals ment of amici that since curiae evolving torts. the law of large percentage income receive through the government from the federal realistic nor consistent neither Security programs gov

various Social upon tradition common law to wait with the hospitals part ernment formed rule legislature an outmoded to correct partner nership governmental which the “ * * * legislative silence case law. isNor must in deter have some voice mining a tort action “ * * * whether to hold a * ^[*] can and, liable therefore, liable its say ered instructive be absolute certitude that the General in the persuasive Schulte case.20 as was consid Who can Assembly’s to abolish doctrine failure the violating be the torts would in essence legislative position the result of a not immunity.” part- sovereign doctrine of The law, that, the doctrine is court-made fiction, since assuming nership premise but, ais responsibility it court’s is the function partnership, legislative voice of change The change required ? governmental partner has not heard been Hunger- Supreme Oregon, of Court establishing programs case, legislative ford said that the indiffer placed its cloak of been may be private wrongs ence to remedies for hospital. In- the shoulders of around assembly enough common in times when the through federal come received occupied matters with a multitude Security create programs does not Social concern, grave public to enact but failure hospital a and the government between the bill is not one of the constitutional methods legal in a sense and does partnership 20.Hungerford Hospital, & v. Portland Sanitarium 12 v. Rhode Island Glavin (Oregon) Benevolent Ass’n 884 P.2d 411, 416. R.I. 1009, 1010-1011. seq. 89, et 25 A.L.R.2d at See 606 assembly application which the makes law.21 We today, the decision announced expressive

consider that statement of we hold that the apply more shall new rule to this legislature our toward inaction case and all views of action aris future causes judi 10, 1969, The ing than statements Schulte. after date November to, government not call filing cial branch of need opinion. Koebel Tie upon, Co., branch to legislative 561, or wait man Mo. Coal & Material 337 judicial change 519, a rule of law which 524[3]; 85 S.W.2d Molitor Kane 302, Supreme Community branch itself Court created.22 The land District No. Unit 96-98, Virginia clearly case of West the Adkins A.L.R.2d Ill.2d N.E.2d succinctly point 3]; stated Huron 469[2, its view Parker v. Port urged upon us in “This (Mich.) now these words: 105 N.W.2d 13-15[4-5]. upon Court closed door is reversed the cause action; opened, the door is to be proceedings. remanded for further must, province it is think within the agree this Court do so.” with that that, statement and add we have the because MORGAN, FINCH, SEILER, and HOL- archaic, opinion the doctrine harmful and MAN, JJ., concur. open fail to the door would be to abdicate our function. DONNELLY, J., concurs result concurring opinion filed.

separate stated, Tor the reasons we hold that nongovernmental charitable institution is STORCKMAN, J., absent.

liable for own agents act employees scope employment. within the ing DONNELLY, in re- (concurring Judge University Hospital, supra, and Adams v. sult). are over all other decisions like effect ruled. the basis in the on concur result I of this facts and circumstances

particular Having the doctrine abolished in the not concur case I do particular but immunity, for us to charitable it remains im- complete abolition of prec departure from point my determine the opin- munity in Missouri. would be cognizant ion, the fact that the State edent. We are by considering each case on retrospective application decision of our served better in determining whether great hardship could result facts and its own prior our is entitled to on case stitutions which relied the defendant each immunity doctrine. charita upholding the charitable decisions Therefore, For feeling Home Nettleton immunity. Blatt v. H. ble Cf. Geo. by prospective Women, justice best served Aged 365 Mo. P.2d at 1011. at 163. 23.143 S.E.2d St. Francis

22. Adkins Charleston, 143 S.E.2d

Case Details

Case Name: Abernathy v. Sisters of St. Mary's

Court Name: Supreme Court of Missouri

Date Published: Nov 10, 1969

Citation: 446 S.W.2d 599

Docket Number: 53883

Court Abbreviation: Mo.