Plaintiff by this suit seeks $10,000 as damages for personal injuries alleged to have been sustained on December 7, 1950, when he fell while upon the premises of the Faith-Salem Church at 7348 West Florissant Avenue, St. Louis County, Missouri. The trial court,- on motion of the defendant, -dismissed plaintiff’s petition. Plaintiff appeаled.
Plaintiff charged negligence in the following manner:
*570 “6. Plaintiff further states that his said fall was caused by negligence of the defendants, through their agents and servants, in operating, managing, and controlling the said Church.” (Emphasis ours) The defendants were described as follows:
‘ ‘ 2. Plaintiff further states that at all times herein mentioned the defendant Rev. Kurt J. Schmiechen was, as Pastor of the Faith-Salem Church, the executive officer thereof.
“3. Plaintiff further states that at all times herein mentioned the defendants William Finklang, Calvin Finklang, Norman Claiborne, Leo Dienhart, Gustave Underberg, Fred Hackmann, Charles Godejohn, Arthur Schenck, Henry Kramer, Earl Spaete, Henry (Harry) Daume, and Raymond Knepper comprised the Consistory of the said Church, and as such were the directors of the said Church.”
The facts were stipulated to be as follows:
“*= * * it is stipulated and agreed that the Faith-Salem Church is a religious, non-profit organization, incorporated by pro forma decree under what is now Chapter 352, Revised Statutes of Missouri, 1949. Under the Constitution and by-laws of the Church corporation, the named defendants compose the elected Consistory, including four Elders, eight Deacons, and the Pastor as an ex-officio member. Article IX. of the by-laws provides that the Consistory shall transact all business of the Churсh, and shall have full charge of the administration of the Church property. The defendants are being sued in their representative capаcity as Pastor and members of the Consistory.
“At the time stated in the petition, and on the date averred therein as.being the date of plaintiff’s injury, if any, there was in full force and effect a policy of liability insurance for personal injuries issued to the Faith-Salem Church, as named insured, and рroviding further that the expression ‘named- insured’ in said policy shall include ‘also any partner, executive officer, or director thereоf while acting within the scope of his duties as such.’ ”
Plaintiff briefed only one point which Ave set out with the authorities cited thereunder:
‘ ‘ The defendants аre suable in tort in the capacities which they were sued, and the trial court erred in holding to the contrary.
Birdsong v. Jones, 222 Mo. Apps. 768,8 S. W. 2d 98 ;
Roberts v. Kirksville College of Osteopathy and Surgery, (Apps.),16 S.W. 2d 625 ;
Taylor v. Baldwin (banc),362 Mo. 1224 ,247 S.W. 2d 741 , 745, 749;
*571 Henman (Hinman) v. Berkman, et al,85 F. Supp. 2 , 4;
Constitution of Missouri, 1945, Art. I., Sec. 14;
Restatement of the Law, Trusts, Sec. 264. ’ ’
After this case was submitted, plaintiff in a letter to the court called attention to the case of Pierce v. Yakimа Valley Memorial Hospital Ass’n, (Wash.)
In the argument of the brief, plaintiff concedes the Faith-Salem Lutheran Church, of which the defendants constitutе the Consistory or the governing body, is a charitable institution and under the laws of this state is not liable in tort actions. Dille v. St. Luke’s Hospital,
The issues in the case of Hinman v. Berkman,
Plaintiff cited Restatement of the Law, Trusts, See. 264. In the 1948 Supplement under Section 264, p. 954, we find the following: ‘ ‘ The rule stated in this Section is not applicable in a case of a charitable trust where the trustee is not personally at fault.”
The immunity of a charity, in this case the Faith-Salem Church, extends to the members comprising the Consistory. Eads v. Young
*572
Women’s Christian Ass’n.,
Plaintiff, in his brief under his "Points Relied On”, cited Art. I, Sec. 14, of the Missouri Constitution. In the argument of the brief he said: "Our CONSTITUTION OF 1945, in its Bill of Rights— Art. I, Sect. 14 — says that the Cоurts are to be open to every person and certain remedy afforded for every injury to person.” We deem it sufficient to say that the courts are open to plaintiff to sue the tort-feasor who is alleged to have caused his injury.
With reference to the case оf Pierce v. Yakima Valley Memorial Hospital Ass’n., supra, we note that the Supreme Court of Washington, by a divided court, changed the rule in that state from non-liability of charities in tort actions to that of liability. In this state, we have adhered to the non-liability rule.
It was stipulated that the liability insuranсe policy included within its terms the members of the board and the pastor. Plaintiff, in the argument of the brief, says that by his suit he is not seeking to reach a fund hеld in trust for charitable purposes, "unless it can be said (looking at it from a practical standpoint) that a liability insurance company is a charity. ’ ’ This court has never suggested that a liability insurance company is to be classified as a charity. What this court has repeatedly hеld is that although a defendant for his protection carries liability insurance that fact does not enhance his liability in tort actions. Stedem v. Jewish Memorial Hospital Ass’n. of Kansas City,
The trial court ruled correctly in dismissing the plaintiff’s petition.
The judgment is affirmed.
PER CURIAM: — The foregoing opinion by Westhues, C., is adopted as the opinion of the court.