Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


June 27, 1961


Appeals, No. 211, Jan. T., 1959, from judgments of Court of Common Pleas No. 5 of Philadelphia County, Sept. T., 1956, No. 2625, and No. 275, Jan. T., 1959, from judgment of Court of Common Pleas No. 4, Dec. T., 1958, No. 1554, in cases of Kenneth Michael v. Hahnemann Medical College and Hospital of Philadelphia, Inc. et al., and Doris T. Ellsworth, Administratrix, v. St. Agnes Hospital. Judgments affirmed; reargument refused July 31, 1961.


Harry Lore, with him Dorfman, Pechner, Sacks & Dorfman, for appellant.

James E. Beasley, with him Jerome E. Ornsteen and Cohen, Ornsteen and Beasley, for appellant.

John J. Tinaglia, with him Michael A. Foley, for appellee.

Morris Duane, with him John B. Martin, and Duane, Morris & Hecksher, and Cornelius C. O'Brien, Jr., for appellee.

Stephen B. Narin, Marvin Garfinkel, and Narin and Garfinkel, and Quinlan, Ozorwwski & Brandschain, filed a brief as amicus curiae under Rule 46.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Jones

[ 404 Pa. Page 426]


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, 120 Pa. 624, 15 Atl. 553 (1888). 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,

[ 404 Pa. Page 427]

    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 (p. 78) 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 automobile 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, 21 Pa. 417, 423 (1853), 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

[ 404 Pa. Page 428]

    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.


All the members of this Court and all the parties agree that beginning with Fire Insurance Patrol v. Boyd, 120 Pa. 624, 15 A. 553 (1888), and continuing through Knecht v. St. Mary's Hospital, 392 Pa. 75, 140 A.2d 30 (1958), 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

[ 404 Pa. Page 429]

    principles of law that I feel compelled to write this concurring Opinion*fn1 to promptly answer and refute them.*fn2

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 State Decisis.

2. The minority substitute their social-political 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,*fn3 the unsuccessful attempts

[ 404 Pa. Page 430]

    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 flout the policy, and inexcusably and unnecessarily usurp the functions and powers of the Legislature*fn4 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 provides that "The legislative power of this 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,*fn5 and similarly the Constitution of Pennsylvania, created and ordained

[ 404 Pa. Page 431]

    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. "'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. "Conversely, courts may not encroach upon the powers of the legislature." Leahey v. Farrell, 362 Pa. 52, 56, 66 A.2d 577.

It is well for Courts to resist temptation and constantly recall the sage advice of Mr. Justice FRANK-FURTER who said in Green v. United States, 356 U.S. 165, 193: "The admonition of Mr. Justice BRANDEIS that we are not a third [or super] branch of the Legislature should never be disregarded."

There are several very important reasons why this principle or doctrine of charitable immunity should not be changed by this Court. Public charities are not like private individuals or corporations for profit, they are and in Pennsylvania always have been and should continue to be favorites*fn6 of the law: Voegtly Estate, 396 Pa. 90,

[ 404 Pa. Page 432151]

A.2d 593. See also: Girard Will Case, 386 Pa. 548, 127 A.2d 287, and numerous authorities cited therein. The reasons are obvious.

The Long and Well Settled Law

In Bond v. Pittsburgh, 368 Pa. 404, 84 A.2d 328, the Court, speaking through Mr. Justice (later Chief Justice) HORACE STERN, aptly said (pages 407, 408, 409): "Notwithstanding the violent criticisms that have been directed by academic legal writers against the doctrine of the immunity of charitable organizations from tort liability, and notwithstanding also the fact that there is considerable conflict in the judicial decisions on the subject among the several States, our own Commonwealth has, from the earliest times, stood firm in its adherence to the principle of immunity. For confirmation of that assertion it is only necessary to refer to such cases as Fire Insurance Patrol v. Boyd, 120 Pa. 624, 15 A. 553; Gable v. Sisters of St. Francis, 227 Pa. 254, 75 A. 1087; Siidekum, Administrator, v. Animal Rescue League of Pittsburgh, 353 Pa. 408, 45 A.2d 59; Betts v. Young Men's Christian Association of Erie, 83 Pa. Superior Ct. 545; Paterlini v. Memorial Hospital Ass'n. of Monongahela City, 247 Fed. 639 (3 C.C.). In the Gable case, supra, it was said (p. 258, A. p. 1088), 'It is a doctrine too well established to be shaken, and as unequivocally declared in our own state as in any other, that a public charity cannot be made liable for the tort of its servants.' Surely a doctrine so deeply embedded in the structure of our common law should not lightly be overturned in violation of the rule of stare decisis. Principles of the common law are not established or developed arbitrarily; they congeal during the course of the years from the fluidity of recurrent judicial decisions which presumably reflect the sentiments and social values of the community.

[ 404 Pa. Page 433]

Measured by that standard there is no class of institutions more favored and encouraged by our people as a whole than those devoted to religious or charitable causes. Public-minded benefactors are not likely to have their generous impulses encouraged if advised that some janitor, watchman or other employe of a charitable organization who carelessly fails to note the displacement of a brick or stone in a pavement may thereby bring about the loss of all the property and funds which the donors had sought to devote to the common good. If and when there is to be any change in the doctrine of the immunity of charitable institutions from tort liability, it ought to be effected, not by the courts, but by the legislature, which is, of course, the ultimate tribunal to determine public policy.*fn7 Incidentally, it will be remembered that this is not the only class of cases in which the victim of an accident may not recover damages from other than the individual who actually committed the tort; for instance, no such recovery is permitted where the accident results from the negligence of the agent or servant of a municipality while engaged in the performance of a governmental function.

"... What is the real basis upon which the immunity principle rests? It is, as expressed in Fire Insurance Patrol v. Boyd, supra (p. 647, A. p. 557) that the funds specially contributed for a public charitable purpose should not be misapplied to objects not contemplated by the donors, for a public charity is but a trustee and is bound to apply its funds in furtherance of the charity and not otherwise. It was also stated in Gable v. Sisters of St. Francis, supra, (p. 258, A. p. 1088) that the doctrine rests fundamentally on the fact that liability, if allowed, would lead inevitably to

[ 404 Pa. Page 434]

    a diversion of the trust funds from the purposes of the trust."

In Knecht v. St. Mary's Hospital, 392 Pa. 75 (1958), supra, Mr. Chief Justice JONES (speaking for the Court) reiterated and reaffirmed the charitable immunity principle and said (pages 76, 78):

"The immunity of an eleemosynary institution from tort liability has long been the established rule in Pennsylvania: [citing cases].

"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.... 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."

Public Policy

In almost every session of the Legislature since the charitable immunity doctrine or principle was expressly recognized and established by this Court, attempts have been made to have it abolished or modified by the Legislature. These unsuccessful attempts which continued for nearly three-quarters of a century demonstrate that the Legislature believed for 70 odd years that the charitable immunity principle is sound and wise and in accordance with the State's public policy toward charitable institutions. It is therefore fair to say that not only in theory and presumptively but far more important in actuality, charitable immunity has become the established public policy of Pennsylvania. We note that once again, viz., in 1959-1960, the Legislature

[ 404 Pa. Page 435]

    appointed a committee to study this problem in all its phases in order to determine whether it is wise to continue or modify or abolish charitable immunity. It is obvious that any change in the State's public policy towards charities should be left to the Legislature, first because the Constitution commits this power to the Legislature, and secondly because the Legislature and it alone will have at its finger tips all of the pertinent data pro and con on this subject - including the financial effect on the hospitals and their charitable contributors, which repeal or modification of the principle would cause.

The minority's statement that charitable institutions in Pennsylvania have been sufficiently alerted to protect themselves by insurance because of the successful attacks on charitable immunity in our bordering states - in view of the decisions of the Supreme Court of Pennsylvania which clearly and unquestionably established charitable immunity from torts and iterated and reiterated it over and over again from 1888 to 1958 - is not only an obvious non sequitur but is clearly without any merit. Furthermore, in Knecht v. St. Mary's Hospital, supra, this Court once again reiterated that any change in the charitable immunity policy would have to come from the Legislature, thereby lulling charitable institutions into believing that it would be unnecessary to obtain insurance until such time as the Legislature had acted.

Reason and Necessity

The prior decisions of this Court are supported by the Legislature and by Public Policy, by reason and by necessity. It is an indisputable fact that notwithstanding the enormous amounts hospitals charge patients, nearly all private (general) hospitals operate in the red. Private hospitals cannot exist as such without (1)

[ 404 Pa. Page 436]

    the benevolence of charitable benefactors and (2) State and/or City aid. Hospitals*fn8 in metropolitan Philadelphia and in many other parts of the State, are desperate for money - even with State grants and several hundred thousands of dollars received annually from endowments and gifts of charitably disposed persons and from fund drives, these hospitals are not able to cover their operating costs and expenses, necessary depreciation, and interest and amortization of their fixed obligations. It has long been recognized and it is an indisputable fact that the money given to hospitals creates a Trust for Humanity. Hospitals, in their care and relief of the sick, the needy, the poor, and the suffering, are the greatest of all charities. Who will want to continue to give to hospitals when they learn that enormous sums of money (huge and at times fantastic verdicts of $50,000 to $300,000 in a single case are not uncommon) will be diverted from the use and benefit of the hospital and the ill and suffering patients, and will instead be used to pay many persons for real or imaginary or faked ills and their attorneys who will likely receive a contingent fee of 33% to 50%? Isn't it obvious that charitable contributions will dry up, and isn't it likely that we will force private hospitals into becoming State or Government owned and operated institutions and hasten socialized medicine? Isn't it clear as crystal that the Public Welfare in this class of case is of far greater importance than a private individual's injury?

Two reasons are given by the minority to support their view, each of which is inadequate. (1) Hospitals can obtain at great additional (but unkown) expense, insurance to protect themselves - this is nothing new.

[ 404 Pa. Page 437]

(2) Many of our sister States have modified or abolished the rule or doctrine of charitable immunity. Unless there are other persuasive reasons, this latter, like the former, furnishes no adequate reason why we should follow their example. The views and decisions of Courts of our sister States are always entitled to careful consideration and respect, but we have always reserved the right - which they in turn exercise - to make our own decisions in accordance with what we believe the law of Pennsylvania is or, in the light of our statutes or our pertinent prior decisions, or our public policy (if applicable), or reason and logic, should be.

Stare Decisis

To abrogate the long and well settled principle of charitable immunity and overrule a myriad decisions of this Court from 1888 to 1958, would, together with other decisions handed down by the present Court in the last few years, finally and effectually obliterate the principle of Stare Decisis which is part of the law of Pennsylvania (Borsch Estate, 362 Pa. 581, 589, 67 A.2d 119).

In a Constitutional Republican form of Government such as ours, which is based upon law and order, Certainty and Stability are essential. Unless the Courts establish and maintain certainty and stability in the law, businessmen cannot safely and wisely make contracts with their employees or with each other; the meaning of wills, bonds, contracts, deeds and leases will fluctuate and change with each change in the personnel of a Court; property interests will be jeopardized and frequently lost or changed; Government cannot adequately protect law-abiding persons or communities against criminals; private citizens will not know their rights and obligations; and public officials will not know from week to week or month to month the powers

[ 404 Pa. Page 438]

    and limitations of Government. This has been recognized for centuries by English-speaking peoples. Lord Coke, Chief Justice of England, thus wisely expressed (circa 1600) these truths: "The knowne certaintie of the law is the safetie of all." This has been a beacon light for Anglo-American Courts, for text authorities, and for law-abiding Americans ever since the foundation of our Country. In the realm of the law it is usually expressed in the principle known as Stare Decisis. Stare Decisis is one of the bed-rocks upon which the House of Law has been erected and maintained.

In Brown v. Allen, 344 U.S. 443 (1953), Mr. Justice JACKSON (in a concurring opinion on the abuse of the writ of habeas corpus) aptly and pertinently said (page 535): "Rightly or wrongly, the belief is widely held by the practicing profession that this Court no longer respects impersonal rules of law but is guided in these matters by personal impressions which from time to time may be shared by a majority of Justices. Whatever has been intended, this Court also has generated an impression in much of the judiciary that regard for precedents and authorities is obsolete, that words no longer mean what they have always meant to the profession, that the law knows no fixed principles."

Mr. Justice FRANKFURTER, in his concurring opinion in Green v. United States, 356 U.S. 165, 192 (1958) said: "To be sure, it is never too late for this Court to correct a misconception in an occasional decision, even on a rare occasion to change a rule of law that may have long persisted but also have long been questioned and only fluctuatingly applied.*fn9 To say that everybody

[ 404 Pa. Page 439]

    on the Court has been wrong for 150 years and that that which has been deemed part of the bone and sinew of the law should now be extirpated is quite another thing.... The admonition of Mr. Justice BRANDEIS that we are not a third branch of the Legislature should never be disregarded."

Mr. Justice DOUGLAS, who is generally regarded as the leading opponent of Stare Decisis, in an article written for the Columbia Law Review of June 1949,

[ 404 Pa. Page 440]

Vol. 49, p. 735, said: "Uniformity and continuity in law are necessary to many activities. If they are not present, the integrity of contracts, wills, conveyances and securities is impaired. And there will be no equal justice under law if a negligence rule is applied in the morning but not in the afternoon. Stare decisis provides some moorings so that men may trade and arrange their affairs with confidence. Stare decisis serves to take the capricious elements out of law and to give stability to a society. It is a strong tie which the future has to the past."

Mr. Justice OWEN J. ROBERTS, Pennsylvania's most illustrious member of the Supreme Court of the United States, in a dissenting opinion in Smith v. Allwright, 321 U.S. 649, 669, thus aptly and strikingly expressed his views concerning the erosion or abolition of the principle of stare decisis: "The reason for my concern is that the instant decision, overruling that announced about nine years ago, tends to bring adjudications of this tribunal into the same class as a restricted railroad ticket, good for this day and train only. I have no assurance, in view of current decisions, that the opinion announced today may not shortly be repudiated and overruled by justices who deem they have new light on the subject."

Mr. Justice EAGEN well expressed the same concern for Stare Decisis in the recent case of Commonwealth v. Woodhouse, 401 Pa. 242, 253, 164 A.2d 98 (1960); "... Unquestionably, in a republican form of government as we are privileged to enjoy, order, certainty and stability in the law are essential for the safety and protection of all. Stare Decisis should not be trifled with. If the law knows no fixed principles, chaos and confusion will certainly follow.... If some principle is based upon an erroneous premise long since dissipated by accurate, dependable knowledge, no one may

[ 404 Pa. Page 441]

    justifiably or reasonably argue that the law should not be brought up with the times. If it is clear that the reason for a law no longer exists and modern circumstances and justice require a change, and no vested rights will be violated, a change should be made."

The reason I am so deeply disturbed by the minority opinions will be apparent to anyone who examines the recent record of this Court and the frequency with which the Court has expressly or impliedly*fn11 overruled or nullified so many prior decisions and so much well settled law. In the words of Mr. Justice JACKSON: "this Court has generated an impression in much of the judiciary [and of the Bar] that regard for precedents and authorities is obsolete, that words no longer mean what they have always meant to the profession, that that law knows no fixed principles." For over a century the Supreme Court of Pennsylvania has been regarded as one of the two or three outstanding Courts in our Country. Surely the Justices who endowed our Court with such high esteem and prestige cannot, as Justice FRANKFURTER aptly expressed it, have been so often wrong for 75 years as the decisions of the present Court in the last three years indicate.

Constitutionality of Prior Decisions

A new and novel proposition has been advanced by one of the present appellants,*fn12 namely, that all of the many decisions of this Court, which for over 70 years have ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.