WILLIE S. L. MADISON et al., Appellants, v. CITY AND COUNTY OF SAN FRANCISCO et al., Respondents.
Civ. No. 14410
First Dist., Div. One.
Aug. 22, 1951
106 Cal.App.2d 232
The judgment is reversed, and the trial court is directed to overrule the demurrer.
Shinn, P. J., and Vallée, J., concurred.
Cecil F. Poole and Ulma A. Abels for Appellants.
WOOD (Fred B.), J.---Plaintiffs appeal from a judgment entered in favor of defendant city and county of San Francisco notwithstanding the verdict rendered in favor of plaintiffs аnd against defendants Donald Walker and the city and county of San Francisco.
The complaint was filed June 24, 1947, by Willie S. L., Sandra L., and Walter L. Madison, the surviving husband and minor children of Irealous Madison, for damages for the death of Irealous, which occurred March 16, 1947, while she was a patient at the San Francisco Hospital, operated by respondent.
The complaint alleged and the answer (jointly filed by respondent and by defendants Monte Greer and Donald Walker) admitted that Irealous was admitted to the San Francisco Hospital and while there was delivered of a child and died. The complaint alleged and the answer did not deny that respondent is a municipal corporation; that Irealous developed a post partum hemorrhage; that defendant Greer and other employees of respondent, members of the medical staff of the hospital, acting in the course of their employment, examined and treated her and performed upon her an operation of transfusion of blood; that defendant Walker, employed as a technician in the blood bank and laboratоry of the hospital, was in charge of and was authorized and directed to make the necessary and proper tests and samplings of blood incidental to and necessary in said operation; that defendant Greer, likewise, with full authorization, made tests and samplings of blood incidental to said operation; and that Irealous died.
At the trial, respondent and the other defendants stipulated that defendant “Donald Walker was an employee of the city and county, employed in the hospital, and also that the negligence of Donald Walker caused the death of the mother of the minor children and the wife of the adult plaintiff” and that Walker was then “acting in the course and scope of his employment.”
At the conclusion of the trial, a motion for a directed verdict was made by respondent and denied by the court. The jury gave its verdict in favor of the plaintiffs and against defendant Walker and respondent, for damages in the sum of $25,000. Thereupon, respondent city and county moved for, and the court granted, judgment in favor of respondent notwithstanding the verdict.
The issue upon this appeal is whether or not there was sufficient evidence to submit to the jury on the question whether or not respondent operated the hospital in a proprietary capacity and in that capacity received Irealous as a paying patient.
Appellants base their claim that respondent is liable for the negligent act of its employee upon the theory that respondent, in its capacity of a municipal corporation, operates the hospital as a business enterprise in competition with private hospitals, and received and cared for Irealous as a paying patient. Respondent bases its claim of nonliability upon the theory that it operates the hospital in the capacity of a county, under mandate of state law in the performance of the state function of caring for the indigent sick and dependent poor (not as a business enterprise in competition with other hospitals), a governmental not a proprietary function, and that Irealous was admitted to and cared for at the hospital pursuant to that mandate, not as a paying patient.
We will consider, first, the testimony of Willie S. L. Madison, the adult appellant. He testified: On March 3, 1947, my wife and I went to the San Francisco Hospital to see if I could get her into the hospital. I went to the main door on Potrero Street-up the main ramp on the first level and walked half way down to the emergency entrance in the main door-that is called the social service office. I conversed with a lady there who was apparently in charge; I told her my purpose in coming; conversed with her about 45 minutes. I was talking to her concerning my wife going to the hospital. I asked, “Could my wife go there; would my wife be per-
No documents were produced to me at that time. I think this lady prepаred some documents while this conversation was taking place. She was typing and asking questions of me during the time she was typing. I could see the typewriter. I think she typed as she asked me questions-she typed upon a yellow sheet of paper with carbon paper in between. She removed this paper from the machine and gave it to my wife to sign. I saw my wife sign it. This lady did not ask me to sign anything.
After my wife signed this document in my presence, the lady told us to go to the clinic in the hospital. We went over to the clinic, did not return to the social service office following our visit to the clinic. At the clinic I was told to return there the following week. I took my wife out to the hospital the following Tuesday, right to the clinic. The lady in the clinic (not the same person who first talked to me) told me to bring my wife back to the clinic.
I returned to the hospital March 16; took my wife back there for delivery of the baby. She was in labor at the time. I took her by automobile. We went in the emergency entrance, had no interview with any person at that time. I do not know what disposition was made of my wife at that time. I went with her to the elevator and put hеr in a wheelchair. Then I went home. I went back afterwards. I talked to some
The next time I saw my wife she was dead. I never saw her alive after that time. On the day following that, I had a conversation with a person at the hospital. It was some man. I called up and asked how was my wife, and the next words he said, my wife was dead, and then I hung up.
When I first went to the hospital and inquired about maternal care for my wife, she had approximately three weeks to go. She had not been denied admission to any other hospital prior to going to the San Francisco Hospital. I had not tried to get her into any other place.
I was not referred to the hospital by any physician. I had not made any attempt to have her admitted to any other hospital. I was talking to some friends of mine and they told me about this hospital and then I knew about it, and it was a large hospital, so I figured it was all right. Friends of mine had children that were born at the hospital and told me about the hospital. They did not tell me that certain people were able to obtain that medical attention free. I did not have that in mind at all when I went there. I intended to pay for my wife‘s medical attention. I had never attempted to get my wife in any other hospital. Prior to my wife‘s death her health had been good. She had not received hospitalization in San Francisco prior to the time she went there in March. She had not seen a doctor before except with reference to pregnancy. She had had no serious illness. She was not employed. She kept her home, and took care of the older child. She had been kindly and affectionate, by disposition, to our child. I did not ask anyone before going to the hospital what office I had to go to concerning medical care for my wife. I arrived at the social service office because that is the only door I saw they had, that the office was set up in; so we went in there and started talking to the lady and she talked to us there.
Prior to March, 1947, I had a doctor for my wife and was paying in advance for his services to deliver the baby; had paid him $50. My wife and I decided to go to a hospital, and the doctor agreed to refund the money to me. He agreed to that before I took her to the hospital.
I have been a resident of San Francisco ever since 1944. I was in the military service and was discharged June 6, 1946, and thereafter returned to San Francisco. I went to work for the Simmons Company August 4, 1946, and worked for thеm the balance of that year. I worked regularly during the first three months of 1947-still employed by the Simmons Company. I was working regularly, making approximately $50 more or less a week-my take-home pay. Following the death of my wife, I continued to work, and was still employed October 29, 1947, when my deposition was taken; and I am still employed (April, 1949).
My wife had been a resident of San Francisco maybe a year at the time she was admitted to the hospital. She was first here in 1945. Her original home was Winfield, Louisiana. At the time of her death my wife was 24 years old. My child, Sandra, is now (April, 1949) three years old. My other child, Walter, who was born when my wife went to the hospital, is now two years old.
After my wife died, my sister-in-law took care of the two children. She lives in San Francisco. I was giving my sister-in-law $10 a week in having her take care of the children, and then I gave her different things. The $10 was for my sister-in-law because she had to stay with them all the time; that was for minding my children. At present the children are in Winfield, Louisiana, in the care of my mother-in-law. My sister-in-law took the children to her. The reason was it was cheaper living down there and my mother-in-law could take care of them better. They were taken there about June, 1947. They have been there ever since. I am contributing to the support of my children.
I paid the undertaker. I think the amount of the bill was about $300.
Our search starts with an examination of the San Francisco charter and ordinances and regulatiоns adopted under it, for respondent is a consolidated city and county organized and existing under a charter adopted pursuant to the provisions of sections 8 and 8 1/2 of article XI of the state Constitution (Stats. 1931, ch. 56 of Res., p. 2973). By section 2 of its charter respondent has invoked, and therefore enjoys the power, conferred by sections 6 and 8 of article XI of the Constitution, to “make and enforce all laws and regulations in respect to municipal affairs, subject only to the restrictions and limitations provided” in its charter, and “in respect to other matters” is “subject to and controlled by general laws.” It thus has and performs the functions of a county and of a city. When acting in respect to a municipal affair it is free of state legislative control but when acting in respect to any other matter it is subject to and controlled by state general laws. The “functions performed in the particular case determine whether San Francisco is to be viewed as a city or a county.” (San Francisco v. Collins, 216 Cal. 187, 191 [13 P.2d 912].)
We find in the charter nothing which directly indicates whether respondent‘s hospital is a city or a county institution, nor whether it is governmental or proprietary in character. Jurisdiction over the hospital is distributed between respondent‘s board of supervisors and its director of public health. According to section 2 of the charter, “The exercise of all rights and powers of the city and county when not prescribed in this charter shall be as provided by ordinance or resolution of the board of supervisors.” Section 9 similarly provides that “The powers of the city and county, except the powers
Moreover, the charter of 1899 was, in form, a grant of power to the city and county. The powers granted were specifically enumerated. At that time the Constitution provided that charters, “except in municipal affairs, shall be subject to and controlled by general laws.” (Art. XI, § 6, as amended Nov. 3, 1896.) The prevailing opinion then was that the charter must enumerate the home rule powers which a city or city and county desired to have. The 1914 amendments to sections 6 and 8 of article XI made it clear that the charter need only invoke the home rule privilege and then the city and county would have full power in “municipal affairs” (without enumeration), unlimited by state general laws, subject only to limitations expressed in the charter itself. (See West Coast Adv. Co. v. San Francisco, 14 Cal.2d 516, 523 [95 P.2d 138].) The provisions of the former charter did not expressly give respondent‘s board of supervisors or its department of public health authority to put respondent into the hospital business in competition with private hospitals. Without the grant of such authority, expressly or by necessary implication, it is doubtful if respondent had power to operate a hospital other than in a governmental capacity, under the old charter as adоpted in 1899. The Supreme Court, in Hyatt v. Williams (1906), 148 Cal. 585 [84 P. 41], applied such a rule of construction when interpreting the Stockton city charter of 1889, and concluded that the grant therein of power “To provide for and regulate . . . lighting and watering of the streets . . . and public places,” and “To provide for . . . such lights . . . as are necessary for the convenient transaction of public business,” and to “determine and declare what are public uses, and when the necessity exists of condemning lands therefor, and what are the lands it is necessary to condemn,” did not grant power to maintain works and carry on the business of supplying the inhabitants of the city with light. (P. 587.) The court observed that providing light for public places and supplying light to the inhabitants generally for their private use are separate and distinct purposes. “The terms of the express grant of the power to provide light for the public purposes named do not indicate any intention to give the distinct and larger power to establish a plant for furnishing light for private use to all the inhabitants of the city who may desire it, and no such intention can be imputed to the framers of the charter from the
In 1925, the former charter of San Francisco was amended to give respondent‘s board of supervisors the power “To make and enforce all laws and regulations in respect to municipal affairs, subject only to the restrictions and limitations provided in this Charter.” (Stats. 1925, ch. 10 of Res., p. 1159; adding subd. 44 to § 1, ch. II, art. II, at p. 1165.) That amendment gave the board of supervisors power, on behalf оf respondent as a city, to provide for the maintenance of a hospital as a business enterprise in competition with private hospitals, a power which that board still has by virtue of the provisions of sections 2 and 9 of the charter of 1931.
It follows that we must look to ordinances adopted by respondent‘s board of supervisors, not to regulations promulgated by its director of public health, in ascertaining the legal sanctions under which its hospital operates.
The applicable provisions of ordinances adopted by the board of supervisors of respondent city and county are in evidence. By stipulation, portions of sections 150 and 151 of the Health Code of San Francisco were read into evidence. Those portions of section 150 read as follows: “There shall be admitted to the San Francisco Hospital, including the Isolation Division and the Hassler Health Home, the following: (a) An indigent sick person of the City and County of San Francisco who possesses the required residence qualifications, upon application and after investigation and approval by the Director of Public Health.” “(i) An expectant mother who is unable to pay for her care and the cost of her maintenance (and care shall be paid by and be a proper charge against the county of her residence); (j) An indigent sick or dependent poor person from another county which lacks the proper facilities for the caring of such patients (and care shall be paid by and be a proper charge against the county
These are classes of persons in respect to whom the state imposes upon respondent, as a county, the obligation of care. The text of subsection (a) of section 150 of the local code follows closely the text of section 200 of the Welfare and Institutions Code, which declares that the board of supervisors in each county “may provide for the care and maintenance of the indigent sick or dependent poor of the county,” and the text of section 2500 of the state code which declares that “Every county and every city and county shall relieve and support all incompetent, poor, indigent persons and those incapacitated by age, disease, or accident, lawfully resident therein, when such persons are not supported and relieved by their relatives or friends, or by their own means, or by State hospitals or other State or private institutions.” The text of subsection (i) of section 150 of the local code follows almost literally the text of section 204 of the state code, which declares that “In any county2 where a county hospital has been established, any expectant mother who is unable to pay for her necessary care shall be admitted to the county hospital, and the cost of her maintenance and care shall be a proper charge against and shall be paid by the county of her residence.” Subsection (j) of section 150, in turn, implements the sanction given by section 202 of the state code for reciprocal arrangements between counties for the care of the hospital eligibles of one county at the hospital of another county.
Louis A. Moran, assistant business manager of respondent‘s health department, testified that the hospital is managed under the direction of that department and is organized and functions under the regulations of the Health Code of San Francisco; that the аdmission of people into the hospital is governed by that code; that the patients are classified according to the types of patients which section 150 of that code prescribes may be admitted; that there is no classification for admission of patients able to pay for their care except when a patient who might be able to pay is admitted on an emergency
The evidence demonstrates that this hospital is operated by respondent as a county (an agent of the state) in performing the duty imposed by the general laws of the state to provide for the care of the indigent sick and dependent poor and “any expectant mother who is unable to pay for her necessary care.” As stated in San Francisco v. Collins, supra, 216 Cal. 187, at pp. 191-192, “The duty to relieve thе indigent, established by state statute, is . . . a matter of statewide interest, in which the city and county of San Francisco is governed by the general law, and acts as a county-an agent of the state.”
It follows that respondent operates this hospital in a governmental capacity and is not liable for the injury of a patient caused by the negligent acts of an employee of respondent. It is precisely the situation presented to our Supreme Court in 1862, in respect to the treatment and care of the indigent sick at the Yuba County Hospital, when that court said that “a quasi corporation, like a county, is not liable for the acts of officers or employees which it appoints in the exercise of a portion of the sovereign power of the State, by the requirements of a public law, and simply for the public benefit, and for a purpose from which the county, as a corporation, derives no benefit.” (Sherbourne v. Yuba County, 21 Cal. 113, at p. 115 [81 Am.Dec. 151].)
This doctrine of nonliability of the state and its agencies for injuries caused by the negligence of an employee engaged in the discharge of a governmental function originated in the fiction that the king can do no wrong. “It may be said that the doctrine arose in the former times from the practical necessity of enabling the state to exercise its governmental functions unhampered by the demands on the exchequer resulting from the carelessness or mistakes of its officers and agents in the discharge of their official duties. In the words of Story, Agency, 8th edition, section 319, the government ‘does not undertake to guarantee to any persons the fidelity of any of its officers or agents whom it employs; since that would involve it, in all its operations, in endless embarrassments, and difficulties, and losses, which would be subversive of the public interests.’ The doctrine has had widespread
The doctrine of nonliability of a county for the negligent injury of a county hospital patient has not been modified by constitution or by statute, and still prevails in this state. This is demonstrated by an unbroken line of judicial decisions. (Goodall v. Brite (1936), supra, 11 Cal.App.2d 540; Calkins v. Newton (1939), 36 Cal.App.2d 262 [97 P.2d 523]; Griffin v. County of Colusa (1941), 44 Cal.App.2d 915 [113 P.2d 270]; Latham v. Santa Clara County Hospital (1951), 104 Cal.App.2d 336 [231 P.2d 513].) In each of the four cases last cited a hearing was denied by the Supreme Court.
Nothing to the contrary is indicated by certain decisions, invoked by appellants, concerning respondent‘s hospital. In one of them, Bloom v. San Francisco, 64 Cal. 503 [3 P. 129], the Supreme Court affirmed a judgment that had been rendered against the city and county for damages caused by the city and county conveying refuse from its hospital, over plaintiff‘s land, in a defective trough, which burst and discharged its contents upon the land. In affirming the judgment, the court said: “We think the city and county of San Francisco had such proprietorship of the city and county hospital as rendered it liable for damages in the case as presented in the transcript.” (P. 504.) The word “proprietorship” as therein used had no reference to the proprietary as distinguished from the governmental function. The city‘s liability was predicated upon the maintenance of a nuisance by the city and a taking of private property for public use (not upon the theory of the responsibility of a proprietor for negligence of its employees), as this court indicated in Davie v. Board of Regents, 66 Cal.App. 693, at page 701 [227 P. 243].
In People v. Williamson, 135 Cal. 415 [67 P. 504], a quo warranto proceeding, the court found that the San Francisco Board of Health, then recently created by the charter adopted in 1899, legally exercised and had superseded (at least as to some functions and powers) the old local board of health, created by statute, which until the adoption of the charter had been in charge of San Francisco‘s hospitals and almshouses. The following remarks of the court in that case merit comment: “It is evident that the powers conferred upon and the duties required of this [new] board are strictly
Beard v. City and County of San Francisco, supra, 79 Cal.App.2d 753, involved merely the issues upon demurrer to a complaint which alleged that plaintiff had placed his child in the city and county hospital as a paying patient, that the
In this state of the case it is unnecessary to decide whether Irealous was able to pay for her care and, if so, whether respondent‘s employees admitted her to the hospital as a paying patient. For she was admissible only as “an expectant mother who is unable to pay for her care.” If respondent‘s employees admitted her as a paying patient, able to pay, they acted outside the scope of their authority and there could ensue no legal responsibility upon the part of respondent for injuries caused by the negligent acts of its employees in the care of the patient. “A governmental agency does not incur liability for negligence by doing an act which is ultra vires.” (Calkins v. Newton, supra, 36 Cal.App.2d 262, at p. 268. See, also, Latham v. Santa Clara County Hospital, supra, 104 Cal.App.2d 336, at p. 339, and cases cited.)
We do not wish to give the impression that the evidence demonstrates that respondent‘s agents acted beyond the scope of their authority when they admitted Irealous as a patient. An expectant mother need not be a pauper to be “unable to pay for her care,” within the meaning of that expression as used in the state and local codes. The policy of providing hospital care for the deserving needy was well expressed in Goodall v. Brite, supra (11 Cal.App.2d 540, at p. 549), in these words: “Under the principles of humanitarianism, and in the interest of a sound policy, we are compelled to hold that a patient in need of hospitalization, who cannot himself, or through legally liable relatives, pay the charges of a private institution, should be admitted to the county hospital because the care of such sick or injured promotes the public health and general welfare of the community in which he lives.” The word “indigent,” when used in connection with admissions to county hospitals, was defined by the сourt in the Goodall case as including a person “who has insufficient means to pay for his maintenance in a private hospital after
It appears, therefore, that there was substantial evidence to support an administrative determination that Irealous was an expectant mother “unable to pay for her necessary care,” and as such was admitted to the county hospital. It is a serious question if on that evidence it would be legally proper for a court or a jury to substitute its judgment for that of the county administrative officials in whom the law has vested the duty and responsibility of deciding whether Irealous was an eligible applicant. “‘Courts should let administrative boards and officers work out their problems with as little judicial interference as possible.‘” (Spaulding v. Philbrick, 42 Cal.App.2d 58, 61 [108 P.2d 59], quoting from Maxwell v. Civil Service Commission, 169 Cal. 336, 339 [146 P. 869].) The scope of judicial review is of a limited character when the attack upon the administrative finding is collateral in nature. (Bank of America v. Mundo, 37 Cal.2d 1, 5 [229 P.2d 345].) However, as we have observed, that question is not presented for decision upon this appeal, for under the law respondent is not liable to appellants for the negligence of its employee, Walker, irrespective of whether the hospital officials acted within or without the scope of their authority in admitting Irealous as a patient.
This is a harsh rule of law which deprives a person of recourse against a county for injuries caused by the negligence of county employees entrusted with his treatment and care as a patient. The doctrine of governmental immunity
“The writer of the Annotation, ‘Rule of municipal immunity from liability for аcts in performance of governmental functions as applicable in case of personal injury or death as result of a nuisance,’ in 75 A.L.R., page 1196, says: ‘The whole doctrine of governmental immunity from liability for torts rests upon a rotten foundation. It is almost incredible that in this modern age of comparative sociological enlightenment, and in a republic, the medieval absolutism supposed to be implicit in the maxim, “the King can do no wrong,” should exempt the various branches of the government from liability for their torts, and that the entire burden of damage resulting from the wrongful acts of the government should be imposed upon the single individual who suffers the injury, rather than distributed among the entire community constituting the government, where it could be borne without hardship upon any individual, and where it justly belongs.’
“A criticism of the reasons assigned in support of the doctrine so much under attack will be found in an article in Brooklyn Law Review, April, 1932, entitled: ‘Should the Liability of Municipalities in Tort be Extended to Include Injury and Damage Caused in the Negligent Performance of a Governmental Function?’
“In an annotation ‘Municipal immunity from liability for torts,’ in 120 A.L.R. 1376, it is stаted that the doctrine of immunity rests upon three grounds: First, the technical rule that the sovereign is immune from suit; second, the ancient idea that it is better that the individual should suffer an injury than that the public should suffer an inconvenience; and third, that liability would tend to retard the agents of the City in the performance of their duties for fear of suit being brought against the municipality. The writer then proceeds with what to many would seem a plausible condemnation of each of these grounds of support of the ancient and rigorous doctrine.”
In an article entitled “Municipal Tort Liability in Operation,” 54 Harvard Law Review, pages 437-462, cited by appel-
While it is true that the trend of judicial decisions and legislative action is to confine, not enlarge-to restrict, not extend-this doctrine of governmental immunity (see People v. Superior Court, supra, 29 Cal.2d 754, at 756-762), it is not within the province of this, an intermediate court, in view of the unvarying line of decisions from 1862 to date, to undertake a re-examination of that doctrine and its application to a county in the operation of a hospital pursuant to the mandate of the general laws of the state. As said in Latham v. Santa Clara County Hospital, supra, 104 Cal.App.2d 336, at page 339: “Much as we may deplore a rule of law which deprives the indigent, who are least able to bear the loss, along with the wealthy, if they are admitted to a county hospital as patients, of recourse against the county for tortious injuries therein received, an intermediate appellate court must accept the settled law as it finds it.”
The judgment appealed from is affirmed.
PETERS, P. J., and BRAY, J.-We concur. We do so solely because the prior cases of the Supreme Court, and of the District Courts of Appeal in which hearings have been denied, have held that a county is not liable for the tortious acts of its agents in the operation of a county hospital. As an intermediate appellate court we are bound by those prior decisions, even if we do not agree with them.
The whole doctrine of governmental immunity for tort needs reappraisal. It has, of course, been greatly limited by statute. In the related field of liability of charities for tort the Supreme
Here admittedly, the city‘s employees negligently killed this woman. A hospital employee negligently furnished the wrong kind of blood. Had the hospital employee negligently operated an automobile in the course or scope of his employment, or negligently used hospital property, liability would exist under some circumstances under the Public Liability Act imposing liability on counties for injuries resulting, among other things, from the defective condition of public “works and property” where certain conditions exist. In the instant case the evidence shows that the patient was a pay patient. Yet no liability exists because this is a county hospital performing a “governmental” function, and if it was acting in a proprietary capacity its acts were ultra vires and not binding on the counties. Of course, the doctrine of ultra vires has long been abolished as to private corporations and has largely outgrown its usefulness as to municipal corporations.
The doctrine of nonliability of government for tort is largely predicated, as the main opinion points out, on the old common law legal fiction that the king could do no wrong. However logical such doctrine may have been when the courts were, in a realistic sense, the king‘s courts, and however practical the doctrine may have been when government was limited in its activities and revenues, under modern conditions the original reasons for the rule no longer exist. When the reason for the rule is gone, the rule should be abrogated. Blind following of antiquated and outgrown precedent should not be countenanced.
If relief is to be secured from the technical and outmoded rules now applicable to the subject of liability of government for the operation of hospitals, such relief must be secured
Appellants’ petition for a hearing by the Supreme Court was denied October 19, 1951. Carter, J., voted for a hearing and filed the following opinion:
CARTER, J.-I dissent.
While voting to grant a petition for hearing in the Supreme Court after decision by a District Court of Appeal is ordinarily sufficient to indicate my disapproval of the holding of the intermediate appellate court, in this case I deem it advisable briefly to state my reason for so voting.
There can be no doubt but that both the majority and concurring opinions of the District Court of Appeal followed the rule which has been heretofore announced in cases of this character by the Supreme Court and District Courts of Appeal of this state. This rule is based upon the old outmoded and outgrown maxim that “The King Can Do No Wrong,” or the doctrine of sovereign immunity. This had its origin in medieval English theory and was introduced in this country without sufficient understanding. (Government Liability in Tort, Borchard, 34 Yale L.Rev. 1.) It has been pointed out that what the maxim really meant was that the King was privileged to do no wrong-that if his acts were against the law, they were wrongs-not that he should be immune from the consequences of his unlawful acts. However that may be, there was never any reason for its incorporation into the law of this country where democracy exists and where we are said to have a “government of the people, by the people and for the people.” It requires but a slight appreciation of the facts to realize that in Anglo-American law the individual citizen is left to bear almost all the risks of a defective, negligent, perverse or erroneous administration of the state‘s functions-an unjust burden-which is becoming graver and more frequent as the government‘s activities become more diversified and as we leave to administrative officers in even greater degree the determination of the legal relations of the individual citizen. The government obviously cannot insure the citizen against all defects and errors in administration, but there is no reason why the most flagrant of the injuries wrongfully sustained by the citizen, those arising from the torts of the officers, shоuld be allowed to rest as they now generally
I cannot follow the reasoning that a county or municipality in operating a hospital, where a charge is made to a patient for services rendered, is not engaged in a proprietary activity, and in my opinion the defendant in the case at bar was so engaged, and should be held liable for the negligence of its employees which directly caused injury to such a patient.
The reasoning which supports the doctrine of sovereign immunity in cases of this character is so fallacious and unsound that it should shock the intelligence, as well as the sense of justice, of those who believe in the American way of life. In my opinion, decisions of this kind are not only productive of widespread disrespect for the law and courts but can be used as the basis for propaganda which affects the stability of our government.