Dissenting Opinion by
Mb. Justice Musmanno:The Majority Opinion is brief, didactic, and summary. Aside from the fact that it makes clear that it is dealing with the subject of tort immunity as it applies to so-called charitable institutions, it conveys no picture to the reader as to the manner in which the eases, upon which the decision is based, came into being.
Since the purpose of a judicial opinion is to satisfy the reader that the decision which it expounds is a just one, I believe that some facts should be announced, a few circumstances should be described, and a brief narration should appear as to how and why the complaining litigant came into court seeking redress for asserted grievances.
Since the Majority Opinion supplies none of that sine qua non, I deem it my obligation as a member of this Court to advert to the situations which brought about the two lawsuits which are here today adjudicated.
On February 18, 1959, William Juliano, 28 years of age, while engaged in a construction job, sustained a laceration to one of his fingers when it brushed against a piece of rusty metal. He was treated at the St. Agnes Hospital in Philadelphia where Dr. Joseph Reno sutured the wound. During the succeeding five days Juliano returned to the hospital on three separate occasions for treatment. At no time was an examination made to determine the possibility of circulatory infection, nor was anti-tetanus treatment administered. On *444February 24 gangrene set in and Juliano was now held at the hospital. His condition rapidly worsened, a tetanus (lockjaw) developed and on February 28th he died, after suffering the horrible pain which accompanies that dire and dread malady. He left a wife and two children.
Death and survival actions were filed against the St. Agnes Hospital by the administrator of his estate, the complaint alleging that the death of Juliano resulted from the negligence, recklessness and carelessness of the hospital’s officers, staff physicians and employees. The defendant hospital denied liability on the basis that it was an “eleemosynary or charitable institution,” and moved for judgment on the pleadings. The Court of Common Pleas No. 4 of Philadelphia County granted the motion upon authority of Knecht v. St. Mary’s Hospital, 392 Pa. 75. The plaintiff appealed.
The second lawsuit involves a complaint filed by Kenneth Michael against the Hahnemann Medical College Hospital and William Ellis and Nicholas T. Viek, doctors in that hospital, alleging that on February 23, 1955, Dr. Ellis, staff physician and surgeon, recommended for the plaintiff-patient a cystocopy operation. On February 28, 1955, Dr. Nicholas T. Viek, while under the supervision of Dr. Ellis, performed an operation entirely different from the one prescribed by Dr. Ellis and as a result the plaintiff suffered a permanent disablement.
In its answer to the complaint, the Hahnemann Hospital averred that it was an eleemosynary corporation and, therefore, not subject to tort action. It moved for judgment on the pleadings, which motion was granted by the Court of Common Pleas No. 5 of Philadelphia County, also on the authority of the Knecht case. The plaintiff appealed.
*445Since the same question was involved in both appeals they were consolidated for consideration and decision.
It cannot be seriously disputed that the acts of negligence averred by the plaintiffs in both lawsuits would, if charged against , a non-eleemosynary institution, entitle the plaintiffs to proceed to trial on the merits of their respective allegations. For. any medical establishment to have in its employ an employee or agent who neglects to detect the symptoms of so deadly and torturing a disease as tetanus and, because of that neglect, to cause the death of the patient is something for which the establishment should be required to answer. Nor would the courts consider inconsequential a charge against a private organization which maintained on its staff two doctors one of whom diagnoses a particular ailment and the other doctor operates for an entirely different non-existent ailment, with serious consequences to the patient.
If faults of this character are cognizable when levelled against a non-public corporation or firm, why are they not recognized when charged against the hospitals involved in these two lawsuits?
In affirming the nonsuits entered in the court below, the Majority says that “The rule of charitable immunity has long since been in force in Pennsylvania,” and, therefore, should not be changed by the courts. It specifically declares that: “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.”
The use of the word “ukase” suggests something arbitrary, czaristic, and tyrannical. The Majority thereby implies that if we were to remove the tort immunity which hospitals now enjoy, we would be trampling upon rights which are established and sacrosanct. But it was *446precisely by the action of the courts that the immunity doctrine came into being in Pennsylvania. If the word “ukase” is to be employed at all in a discussion of the question before us, it should be used to describe the arbitrary action taken, in the first place, by this Court, to exempt hospitals from their just legal obligations. To remove that immunity would not be an “ukase”, but a liberation of the people from the ukase this Court laid down in 1888.
The Majority Opinion says further: “Under our democratic form of government, it is the legislature that can competently declare and promulgate public policy and not the courts.”
But it was the courts, and specifically this Court, which promulgated the “public policy” of hospital immunity, and if this Court had the authority in 1888 to proclaim that policy, it certainly has the authority to change it today, especially when modern conditions require, and justice demands, its removal.
The Majority not only rivets upon the people of Pennsylvania its ukase of 1888, but suggests that the subject should “assume a state of quiescence so far as further insistent court action is concerned.” It adds, somewhat plaintively that, “perhaps that is too much to hope for.” In agreement with the Majority to that extent, that it is “too much to hope for,” I would like to explain why, as I view the legal landscape in Pennsylvania, it is inevitable that the doctrine of charitable immunity, like old crumbling covered bridges, will in the not too distant future, disappear.
I must assert at the outset that although the institions here involved are known as charitable hospitals, they are not charitable in the true sense of the word because charity denotes the giving of something— money, articles, or services — without remuneration of any kind. The Hahnemann and St. Agnes hospitals charge for their services, the patients pay for what they *447receive. Thus while in no way detracting from the contribution which these estimable institutions make toward the alleviation and cure of the ills of mankind, a proper appraisement of the question involved impels the candid statement that the hospitals receive payment for their contribution. The phrase “charitable hospital”, therefore, must be accepted in this litigation as meaning the beneficiary of an immunity allowed to it by law and not because it offers gratuitous services to those who avail themselves of its facilities.
Charity is a word having such a noble, even reverent, denotation and connotation, that it must be specifically understood that it is not being used in this Opinion in its pure and pristine sense. If, as in one of the cases before us, a patient pays for an operation to cure an ailment with which he is afflicted and, instead, is operated on for a malady which he does not have, and he may not recover against the hospital responsible for the resulting shocking mistake, a question naturally arises as to whether the word “charity” has any place at all in our discussion.*
The lower courts in the two cases under consideration had no choice but to enter nonsuits because, athwart the avenue of their independent thinking, stood the insuperable barrier of the Knecht case. And it will continue to rear its unscalable masonry of precedent unless the tremendous power of this Court sets it aside.
That is the immediate and, really, the only question in these appeals, but stating the question simply is not to dispose of it simply. Knecht represents a judicial policy which this Court has heretofore expressed, and reiterates today must not be changed. This Court has *448assumed that that judicial policy is a fortress of authority which cannot and should not be dismantled since it was built a long time ago.
The Concurring Opinion in the Knecht case stated: “ ‘The immunity of an eleemosynary institution from tort liability has long been the established rule in Pennsylvania.’ ”, and it then cited,- in support of this statement, the cases of Bond v. Pittsburgh, 368 Pa. 404; Siidekum v. Animal Rescue League, 353 Pa. 408; Gable v. Sisters of St. Francis, 227 Pa. 254; Fire Insurance Patrol v. Boyd, 120 Pa. 624; Betts v. Young Men’s Christian Association of Erie, 83 Pa. Superior Ct. 545. The earliest of these cases is Fire Insurance Patrol v. Boyd, 120 Pa. 624, which was decided in 1888, but is 1888 so long ago that what was said then must be treated today with unquestioning veneration?
It is. contended by the appellants here that the doctrine of immunity from tort liability on the part of: charitable institutions is an ancient one and they point to what this Court said in the Boyd case, namely, “This doctrine is hoary with antiquity and prevails alike in this country and in England where it originated as early as the reign of Edward V., and it was announced in the Year Book of that period.”
It is not enough, however, in order to sustain a given principle of law to say that it is “hoary with antiquity”, and stop there. No greater harm could befall the progress of the human race than for succeeding generations to point to what was said in a preceding generation without any one taking the trouble to ascertain whether what was said by the preceding generation was correct. The fact of the matter is that when the Boyd case was decided, the doctrine therein pronounced as one of hoary antiquity and as prevailing in England at the time had already been repudiated by England.
The most melancholy observation that can be made on the doctrine of charitable immunity in America is *449that it is founded on a 'wholly inaccurate historical conception, to which the years and decades have added additional error and ever-mounting confusion. The genesis of the immunity rule was sheer dictum in an English case which had nothing to do with personal injuries at all. (Duncan v. Findlater, 1839, 6 Clark & Fin. 894). In 1848, the same judge, Lord Cottenham, who had spoken in Duncan v. Findlater, repeated his dictum in the case of Feoffees of Heriot’s Hospital v. Ross, 12 Clark & Fin. 507, declaring: “To give damages out of a trust fund would not he to apply it to those objects whom the author of the fund had in view, but would be to divert it to a completely different purpose.”
This case had to do with damages for wrongful exclusion from the benefits of the charity in question and had no reference to one who had been injured through a tort committed by the charity. As inapplicable as this dictum would be to the question of charitable immunity as we understand it in America, it does not even have the virtue of kinship to our problem as it arose later, because Lord Cottenham’s dictum in Duncan v. Findlater was overruled in 1886 by Mersey Docks Trustees v. Gibbs, L.R. 1 H.L. 93, and what was said in 1861 in Holiday v. St. Leonard on the same subject was repudiated in 1871 by the case of Foreman v. Mayor of Canterbury.
Thus, by the beginning of the fourth quarter of the nineteenth century all that had been said on the subject of deviating trust funds for the payment of damages had been wiped out of the jurisprudence of England.
Obviously unaware of what had happened in England in this field, Massachusetts in 1876 proceeded to build on a foundation which did not exist. Taking the Holliday v. St. Leonard case as its premise, the Supreme Court of Massachusetts in the case of McDonald *450v. Massachusetts General Hospital, 120 Mass. 432, announced for the first time in America the so-called charity immunity doctrine. In 1885, Maryland, in the case of Perry v. House of Refuge, 63 Md. 20, added to the superstructure of the foundationless structure begun by Massachusetts. In 1888 Pennsylvania brought its blocks of stone and mortar, in the case of Fire Insurance Patrol v. Boyd, supra, for still another higher addition to this pile which now was starting skyward. In the Boyd case, this Court spoke with approval of the Massachusetts case, which it could see, and with equal approval of the Feoffees of Heriot’s Hospital case, which had been wiped out. So sure was the 1888 Supreme Court of the solidity of its foundation in the Boyd case that it addressed itself sardonically to a decision of the Supreme Court of the State of Rhode Island which, with a wisdom and courage in inverse proportion to its geographical size, declared that a maltreated hospital patient was entitled to recover for damage done him. Justice Paxson, speaking for this Court, derided Rhode Island: “I will not consume time by discussing the case of Glavin v. Rhode Island Hospital, 12 R. I. 411, which, to some extent, sustains the opposite view of this question. There, a hospital patient paying eight dollars per week for his board and medical attendance, was allowed to recover a verdict against the hospital for unskilful treatment, and it was held that the general trust funds of a charitable corporation are liable to satisfy a judgment in tort recovered against it for the negligence of its officers or agents. It is at least doubtful, whether under its facts the case applies, and if it does, we would not be disposed to follow it in the face of the overwhelming weight of authority the other way, and of the sound reasoning by which it is supported.”
Justice Paxson could be convinced of the “sound reasoning” of his position, but there was no more evidence in 1888 that the charity immunity doctrine was *451supported by an “overwhelming weight of authority” than that (as he also said), the doctrine was one of hoary antiquity. Something said in 1846 can scarcely acquire moss of “hoary antiquity” by 1888.
Nevertheless, the immunity doctrine began to grow in the United States. Other states followed Massachusetts, Maryland and Pennsylvania, each one speaking of the antiquity of the rule and assuming, as the tower of authority rose, that the doctrine it proclaimed was sunk in the solid rock of historical fact, ballasted with granitic reason and buttressed with ever-accumulating precedent. No one can tell how many persons were injured and even allowed to die in hospitals through the neglect of attendants (with no recourse against the hospital) as this tower of assumed purity pushed toward the clouds.
In the early part of the twentieth century, however, some cracks began to show in the tower and then in 1942, Judge Rutledge (later Justice of the Supreme Court of the United States) of the United States Court of Appeals for the District of Columbia revealed, in perhaps the most searching, analytical, and penetrating opinion on the subject, that the charity immunity doctrine was built on a foundation of sand. As one reads and reflects on that opinion (Georgetown College v. Hughes, 130 F. 2d 810), he is forced to the irresistible conclusion that the immunity doctrine began in error, lifted its head in fallacy, and climbed to its shaky heights only because few dared to question whether charity was really charity.
Judge Rutledge ended his brilliant dissertation on the immunity doctrine with the incontrovertible proposition that: “The incorporated charity should respond as do private individuals, business corporations and others, when it does good in the wrong way.”
Some courts, overawed by the word charity, and yet uneasy about the manner in which its impeccable, white *452mantle concealed gross negligence and even wanton misdeeds, sought to find a way to hold hospitals for the torts of its employees without abrogating the immunity doctrine. Accordingly they began to distinguish between acts which were designated administrative, in which the hospitals would be liable, and acts which were medical, where the rule of immunity would still apply. This was particularly true in the State of New York. Many strange decisions followed this artificial attempt to separate the sheep of immunity from the goat of liability. Thus, in Iacono v. New York Polyclinic Medical School,1 the Court held that applying an improperly capped hot water bottle to a patient’s body was an administrative act for which the hospital was liable, but that keeping a hot water bottle against a patient’s body for an excessive period of time was purely medical and the hospital was not liable.2 Where, in Necolayff v. Genessee Hospital,3 a transfusion of blood was given to the wrong patient, the Court held that the hospital was liable because this was an administrative act, but where the wrong blood was pumped into the veins of the right patient, the mistake was strictly medical, and the hospital was not liable.4 Where the hospital attendants failed to put up sideboards on a bed, after they had been medically ordered, and the patient fell out, the hospital was held liable since this was administrative negligence,5 but where the medical person in charge failed to order sideboards and they were needed, the Court decided that this was a medical mistake, and the hospital did not need to respond to the lawsuit of the patient who was injured because of this medical lapse.6
*453Eventually the Court of Appeals of New York called a halt to this checkered reasoning, which was making a multicolored quilt of the whole law on tort liability in hospitals, and, in a brave, scholarly opinion, authored by the illustrious Judge Fuld, the highest Court of the Empire State repudiated the entire doctrine of so-called charitable immunity. Speaking for the Court in the case of Bing v. Thunig, 2 N.Y. 2d 656, Judge Fuld said: “The doctrine of respondeat superior is ground on firm principles of law and justice. Liability is the rule, immunity the exception. It is not too much to expect that those who serve and minister to members of the public should do so, as do all others, subject to that principle and within the obligation not to injure through carelessness. It is not alone good morals but sound law that individuals and organizations should be just before they are generous, and there is no reason why that should not apply to charitable hospitals. 'Charity suffereth long and is Idnd, but in the common law it cannot be careless. When it is, it ceases to be kindness and becomes actionable wrongdoing’ . . . Insistence upon respondeat superior and damages for negligent injury serves a two-fold purpose, for it both assures payment of an obligation to the person injured and gives warning that justice and the law demand the exercise of care.”
Our Court has so far failed to do what the United States Court of Appeals of the District of Columbia and the Court of Appeals of New York, in the two cases just cited, have done, namely, inquire whether the immunity doctrine is grounded in “good morals and sound law.” It has been content to refer to previous decisions as if yesteryear could do no wrong and as if the hand of the past must forever clutch the helm of the present. In none of the cases cited in the Kneoht decision, as authority for that judgment, was any attempt made to justify in moral law and fair dealing the immunity *454which, deprived the plaintiff of damages for the injuries inflicted upon him or her.
Thus, in Gable v. Sisters of St. Francis, 227 Pa. 254, hospital attendants negligently placed in the bed of the unconscious plaintiff some leaking hot water bags, seriously disabling her. She was a paying patient. This Court in denying recovery said: “It is wholly immaterial that the plaintiff who here complains of injury was admitted as a pay patient.”
In Siidekum v. Animal Rescue League, 353 Pa. 408, the plaintiff’s decedent was killed through the negligence of the driver of a truck of the Animal Rescue League of Pittsburgh. This Court held that the Animal Rescue League was not responsible for the negligence of its servant because “as a non-profit organization engaged in the humane undertaking of caring for animals, all of its capital funds and income being used for that purpose, (it) is a purely public charity.”
The care of animals is undoubtedly an enterprise which merits the support of all citizens in any well-organized society, but is the protection of human beings on the streets any less an obligation of society? It may be added here that the defendant Animal Rescue League operated under a contract with the City of Pittsburgh from which it received more than one-half of its total income. Also, it carried liability insurance.
In Bond v. Pittsburgh, 368 Pa. 404, the City of Pittsburgh sought to recover from the Society of St. Vincent de Paul an amount it had to pay out because of injuries sustained by the plaintiff who fell on a defective pavement in front of the premises of the Society. This Court in holding the society immune from liability declared that: “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 *455judicial 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.”
Here again this Court speaks of “earliest times.” Is 1888 “earliest times”?
In Betts v. Y.M.C.A. of Erie, 83 Pa. Superior Ct. 545, Catherine Betts was seriously injured when a large chandelier in the lobby of the defendant’s building fell on her. The Superior Court denied liability because the object of the Y.M.C.A., the Court said, “is, primarily, the spiritual, mental and physical welfare and improvement of young menBut what of the physical welfare of the young woman Catherine Betts?
In the Knecht case itself, the plaintiff was injured when hospital attendants negligently directed her to walk when she was incapable of walking and she fell to her injury. She sued the hospital and was non-suited, not because she failed to prove negligence or because there was any evidence of contributory negligence but, because, as previously indicated, this Court said, “The immunity of an eleemosynary institution from tort liability has long been the established rule in Pennsylvania.”
Hence, we come to the crucial question posed by the immunity rule in Pennsylvania, namely, should it be retained because it is a “long established rule?” In a word, we are confronted with stare decisis. Of course, stare decisis is a salutary principle. Without it, there would be no stability in the law. The ship of the law should follow that well-defined channel which, over the years, has been proved to be safe and trustworthy. But it does not comport with wisdom to say that when shoals rise in a heretofore safe course, and rocks emerge to encumber the passage, the ship should pursue the original course merely because it presented no hazard in the past. The doctrine of stare decisis does not de*456mand that we follow precedents which experience proves now violate accepted principles of justice.
Stare decisis is not an iron mold into which every legal principle must be poured where, like wet concrete, it acquires an unyielding rigidity which nothing later can change. “Notwithstanding the rule of stare decisis . . . the courts have the power, and frequently exercise it, of departing from rules which have been previously established . . . and it is the manifest policy of our courts to hold the doctrine of stare decisis subordinate to legal reason and justice. . .”: 14 Am. Jur., Courts, section 124, page 341.
Justice Cardozo said: “When changes of manners or business have brought it about that a rule of law which corresponded to previously existing norms or standards of behavior, corresponds no longer to the present norms or standards, but on the contrary departs from them, then those same forces or tendencies of development that brought the law into adaptation to the old norms and standards are effective without legislation, but by the inherent energies of the judicial process to restore the equilibrium.” (Cardozo, Paradoxes of Legal Science 14-15.)
The history of law through the ages records numerous inequities pronounced by courts because the law of the day sanctioned them. Reason revolts, humanity shudders, and justice recoils before much of what was done in the past under the name of law. Yet, we are urged to retain a wholly illogical doctrine of immunity because it is an old doctrine. This kind of reasoning would have retained prosecution for witchcraft, imprisonment for debt and hanging for minor offenses which today are hardly regarded as misdemeanors.
Chief Justice von Moschzisker of this Court said: “. . . if, after thorough examination and deep thought, a prior judicial decision seems wrong in principle or manifestly out of accord with modern conditions of life, *457it should not be followed as a controlling precedent.” (von Moschzisker, Stare Decisis in Courts of Last Resort, 37 Harv. L.R. 409 at p. 414.)
The law at one time proclaimed and upheld the rule (proved a million times to be wrong) that the king can do no wrong. In America the rule was changed to read that the government could do no wrong. Then it was said that hospitals could do no wrong, but all the while unoffending persons were being injured, crippled^ and even killed through the negligence of government employees and hospital employees; and recovery was constantly being denied the victims or the victims’ families because of so-called rules of immunity which have no place in a code of equality and justice.
It is historically true, and it is a tribute to the soundness of the human heart that it is true, that there was a time when good men and women, liberal in purse and generous in soul, set up houses to heal the poor and homeless victims of disease and injury. These benefactors made no charges for this care. They felt themselves richly rewarded in the knowledge that they were befriending humanity. Hospitals then were little better than hovels in which the indigent were gathered for the primitive cures available. The wealthy and the well-to-do Avere cared for in their homes. The hospital or infirmary was more often than not part of the village parish. Charity in the biblical sense prevailed.
And if it happened that some poor mortal was scalded by a sister of mercy Avho, exhausted from long hours of vigil and toil, accidentally spilled a ladle of hot soup on a hand extended for nourishment, there was no thought of lawsuits against the philanthropists Avho made the meager refuge possible. But if, following such a mishap, litigation should have been initiated in the courts, it is not difficult to understand why judges would be reluctant to honor such a complaint, convinced, on the basis of humanity, that an enterprise *458utterly devoid of worldly gain should be exempt from liability. A successful lawsuit against such a feeble structure might well have demolished it and have thus paralyzed the only helping hand in a world of unconcern for the rag-clothed sick and the crutchless disabled.
The situation today is quite different. Charitable enterprises are no longer housed in ramshackly wooden structures. They are not mere storm shelters to succor the traveler and temporarily refuge those stricken in a common disaster. Hospitals today, to a large extent, are mighty edifices in brick, stone, glass, and marble. They maintain large staffs, they use the best equipment that science can devise, they utilize the most modern methods in devoting themselves to the noblest purpose of man, that of helping one’s stricken brother. But they do all this on a business basis, and properly so.
It is true that many of them receive financial aid from public-spirited citizens as well as from the government, but their venture is always a business one. This is not said in derogation but in commendation. Hospitals must be operated on a commercial basis if they and their patients are to survive. Accordingly, charges are made for services rendered and when patients neglect payment, the hospital properly calls in the law to effect collection.
And if the hospital is a business for the purpose of collecting money, it must be a business for the purpose of meeting its obligation. One of those obligations is to exercise a high degree of care for its patients. To the extent that it fails in this care, it should be liable in damages as any other business institution is. If a hospital nurse negligently leaves a sponge in the abdominal cavity of a paying patient, why should the hospital be exempt from liability, any more than a restaurant owner should escape liability for the dam*459age inflicted by a waitress who negligently overturns a tray of dishes on a guest?
Many States have jettisoned the policy of non-liability.
In repudiating the doctrine of immunity in Vermont, its Supreme Court excellently reasoned: “Private charities are much different now than when the liability question was first before the courts. Then they were largely small institutions, many connected with churches, and of limited means. Today they have become, in many instances, big businesses, handling large funds, managing and owning large properties and set up by large trusts or foundations. It is idle to argue that donations for them will dry up if the charity is held to respond for its torts the same as other institutions or that the donors are giving the funds or setting up large foundations for charitable purposes with the expectation that the charities they benefit will not be responsible like other institutions for negligent injury. Such charities enjoy endowments and resources beyond anything thought of when the matter of immunity was first being considered.” (Foster v. Roman Catholic Diocese of Vermont, 116 Vt. 124.)
The policy of immunizing any person or institution from liability for fault runs counter to our whole system of democratic society because it sanctions special privilege which no one can seriously support legally, philosophically, ethically, or morally. In fact, the Constitution of Pennsylvania specifically prohibits the General Assembly from “Granting to any corporation, association, or individual any special or exclusive privilege or immunity. . .” Obviously what is denied to the Legislature in a matter of governmental policy may not be undertaken by the Courts.
Aside from the reasons which disclose the legal untenability of the immunity doctrine, an awareness of practical conditions demonstrates how in many ways it *460is also socially unsound. Human nature being what it is, administrators of a hospital, cognizant that the hospital is insulated from tort liability, may be less likely to exercise stringent scrutiny in selecting personnel than if the hospital were held financially responsible for slipshod, indifferent, and neglectful conduct of employees. As Justice Rutledge said in the Georgetown case, supra, “immunity tends to foster neglect while liability tends to induce care and caution.”
In the case of Parker v. Port Huron Hospital, 105 N.W. 2d 1, a hospital attendant negligently confused blood tubes and, as a result, the plaintiff’s decedent received the wrong blood transfusion which caused her death, after thirteen days of torturing pain. The administrator of her estate brought an action against the hospital, charging it with employing and retaining “proven inefficient and incompetent employees”. It was admitted by the defendant hospital that the negligence of one of its employees, acting within the scope of her employment, caused the death of Mrs. Parker. Nevertheless it defended on the basis that it was immune from liability because it was a charitable institution. The Supreme Court of Michigan, in rejecting this position, and thereby accepting the modern view on the duty owed by hospitals to the public, declared that “Today charity is big business. It often is corporate both in the identity of the donor and in the identity of the donee who administers the charity. Tax deductions sometimes make it actually profitable for donors to give to charity. Organized corporate charity takes over large areas of social activity which otherwise would have to be handled by government, or even by private business. Charity today is a large-scale operation with salaries, costs and other expenses similar to business generally. It makes sense to say that this kind of chailty should pay its own way, not only as to its of-*461flee expenses but as to the expense of insurance to pay for torts as well. . .
“It is our conclusion that there is today no factual justification for immunity in a case such as this, and that principles of law, logic and intrinsic justice demand that the mantle of immunity be withdrawn. The almost unanimous view expressed in the recent decisions of our sister States is that insofar as the rule of immunity was ever justified, changed conditions have rendered the rule no longer necessary.”
In considering the general question of hospital immunity, the inevitable query arises as to why it is that a practicing doctor who employs other doctors and attendants is responsible for the tortious conduct of his agents, servants and employees, but a hospital which performs the same services, only on a larger scale, is excused from liability for the negligence of its medical staff and employees. The hospital uses and maintains a larger staff than the private practitioner only because it serves more people. In serving more people it, of course, collects a larger revenue. Certainly its liability should not be less because its income is more.
We have seen that the immunity doctrine was founded in error, continued in misapprehension, and defended practically entirely alone on the basis of longevity. It violates logic, offends equity, and ignores legal consistency in many ways. Thus, although a charitable hospital is not required to pay for its negligent acts in the treatment of patients it is required to pay for its negligent attitude toward neighbors. In other words it may be sued and be required to answer for committing and maintaining a nuisance. (25 A.L.E. 2d 52.) Broadly speaking nuisance sounds in tort, and if a hospital must pay for damage done to inanimate property, why should it not be required to pay for damage done to human bodies? This situation reveals an incongruity which does the law no credit.
*462If A, a hospital attendant, carelessly and negligently empties a bucketful of scalding water on B and C (B being another hospital attendant and C a patient), the hospital will pay B workmen’s compensation for his injuries resulting from A’s misconduct, but the paying patient, equally injured in the same misadventure, will receive nothing but further pain and, in addition, a further burden of expense to carry on his blistered back. Is this consistency?
It is argued that a charitable hospital is committed to ministering to the halt, the lame and the blind, and, therefore, should not be subjected to lawsuits which might impede it in providing for those entrusted to its care. But is a patient who is injured by the negligence of the hospital not also one of the halt, the lame, and the blind? Why should he be excluded from the solicitude of the hospital because he is more halt, more lame, and more blind than he was when he entered the hospital, all due to the hospital’s fault? Is this charity?
But the immunity doctrine is indefensible for a more momentous reason than anything expressed up to this point. The right of Kenneth Michael to recover for the trespass perpetrated upon him is a property right. The medical expenses he must pay, the wages which he has lost, the impairment of earning power he will suffer, and the pain, suffering and inconvenience he has undergone and will still undergo are all transmutable into dollars and cents which he has a right to obtain in an action at law. To deny him that recovery is to take property without just compensation, a despoliation prohibited by the Constitution.
Mrs. Juliano, widow of William Juliano, has a property right in what Avas taken from her through the death of her husband and breadwinner. Her two children have a right to parental maintenance with which their father would have supplied them had he not been killed as a result of the negligence of the defendant-*463hospital. To deprive Mrs. Juliano and her children of what the law assures all widows and orphans victimized through the negligence of others is a denial of due process of law guaranteed by the Constitution.
Counsel for the Hahnemann Hospital, arguing that the immunity doctrine is a matter of “public policy,” says: “One example of this public policy as established by the legislature is the exemption of such organizations from taxation. Exempting charitable organizations from tort liability is but another phase of that same public policy.”
It is true that the Constitution of Pennsylvania permits the General Assembly to exempt charitable institutions from payment of taxes (Art. IX), but in doing so, it does not establish any “public policy” which exempts charitable institutions from liquidation of their private debts. The Legislature may relieve these organizations from taxation because taxes are public funds; they- belong to the Commonwealth; they are property of the sovereignty of the Commonwealth, for which the General Assembly speaks.
The Constitution specifically authorizes the Legislature to remit taxes which would otherwise be due from hospitals like all other businesses, but there is nothing in the Constitution which would authorize the Legislature to exempt a hospital or any person, corporation, or institution from meeting private obligations. The Legislature may not exempt a hospital from paying for buildings it constructs, personnel it employs, and groceries it purchases. The Legislature would have no authority to exempt a charitable institution from making restitution of an article stolen by one of its employees for its use, or, if the article has been destroyed, from making payment for the value of the article.
And if the Legislature cannot save a charitable institution from its legal obligation to restore what it has not paid for, it may not, by the same token, exempt *464such an institution from making restitution in damages for what it has taken from a tortiously injured person.
As a hospital could be compelled by law to restore to a patient clothes or valuables it had removed from him while he was in the hospital, it should be compelled to restore to him the wages and bodily vigor (or its monetary equivalent) it caused him to lose through its negligent conduct.
What the immunity doctrine actually does is to force the victim of negligence to make a contribution of what is his own to the hospital. The unconscionable character of such coercion does not need to be elaborated on.
And, it needs scarcely to be added, that what the Legislature may not authorize hospitals to do, the courts may not similarly authorize.
The argument that if the immunity which hospitals have heretofore enjoyed is to be abrogated it must be done by the Legislature is a bold one. It is like saying that if trespassing on property is to cease, the Legislature must declare trespassing illegal. But trespassing already is illegal. Indeed, the Legislature would never have had the power to pronounce trespassing legal because this would in effect be permitting the use of someone else’s property without due process of law and without just compensation.
In any event, the proposition that the Legislature and not the courts should remove the immunity, if it is to be removed, is additionally meritless because as already stated, and bears repetition, it was this Court and not the Legislature which built the wall of non-liability around so-called charitable institutions; and what it built, it may dismantle.
When the Supreme Court of Washington swept away the immunity rule, it said briefly but cogently: “We closed our courtroom doors without legislative *465help, and we can likewise open them.” (Pierce v. Yakima Valley Memorial Hospital Ass’n, 43 Wash. 2d 162.)
The Commonwealth of Pennsylvania, of course, is not bound by the decisions of any other State or even the decisions of courts of the United States on this particular subject of the law. Nevertheless, we always look with respect on the attitude expressed in other jurisdictions on any specific topic of jurisprudence. With that deferential regard for the views of other courts, it is not a matter of slight reflection that Pennsylvania now stands with a very small minority of the States in upholding total immunity.
Twenty-three States of the Union have wholly rejected the principle of tort immunity for charitable institutions, fourteen States allow a partial immunity, and nine States, of which Pennsylvania is one, allow total immunity. The District of Columbia and Puerto Eico do not sanction immunity. Pour States have not passed on the question. Although England, as already indicated, has been charged with originating the immunity doctrine, it quickly repudiated the misunderstood dicta in the Feoffees of Heriot’s Hospital v. Ross case and has held fast to the liability doctrine ever since. “It is now settled that a public body is liable for the negligence of its servants in the same way as private individuals would be liable under similar circumstances, notwithstanding that it is acting in the performance of public duties, like a local board of health, or of eleemosynary and charitable functions, like a public hospital.”: (Hillyer v. The Governors of St. Bartholomew’s Hospital, 2 K.B. 820, 825 (1909)).
Australia, Canada and New Zealand have followed England in holding charitable institutions liable for the torts of their employees.
It is obvious from the above that the trend of the law is toward the elimination of immunity. This trend *466lias been recognized in tbe Restatement (2d), Trusts. Tbe “comment” on subsection (2) of Section 402 reads: “The trend of judicial opinion favors the denying of immunity, putting a charitable organization in the same position as that of non-charitable organizations, subjecting them to liability in tort not only for the negligence of the governing board but also for the negligence of employees, subjecting them to liability to recipients of benefits as well as to other persons.”
The subsection (2) itself reads: “A person against whom a tort is committed in the course of the administration of a charitable trust can reach trust property and apply it to the satisfaction of his claim.”
All this is in keeping with the Restatement, Torts, which decisively declares in section 887 that: “No one, except the State, has complete immunity from liability in tort.”
Pennsylvania should not hold out against this tide of reason and current adjustment to changed conditions any more than did New Jersey when in April, 1958 (subsequent to our Knecht decision), it took its place in the roll of States acknowledging the inequity of the immunity rule. (Collopy v. Newark Eye and Ear Infirmary, 141 A. 2d 276). In that case the plaintiff underwent eye surgery. Protective bandages were placed over his eyes and in this blindfolded condition he fell out of bed which lacked guardrails, sustaining serious injuries. The defendant hospital took no x-ray pictures to ascertain if and to what extent the patient had been hurt by the fall. He was discharged from the hospital and then, because of the new injuries, he was required to undergo further hospitalization. The lower court entered summary judgment in favor of the hospital since it was declared to be a nonprofit eleemosynary corporation. The Supreme Court of New Jersey reversed, and, in a scintillating opinion by Justice Jacobs, declared: “times and circumstances *467have changed and we do not believe that it (the immunity doctrine) faithfully represents current notions of rightness and fairness. Due care is to be expected of all, and when an organization’s negligent conduct injures another there should, in all justice and equity, be a basis for recovery without regard to whether the defendant is a private charity. . . The primary function of the law is justice and when a principle of the law no longer serves justice it should be discarded; here the law was embodied not in any controlling statute but in a judicial principle of the law of torts; it had no sound English common law antecedents and found its way into American law through a misconception; it runs counter to widespread principles which fairly impose liability on those who wrongfully and negligently injure others; it operates harshly and disregards modern concepts of justice and fair dealing; it has been roundly and soundly condemned here and elsewhere and the time has come for its elimination by the very branch of government which brought it into our system” (Emphasis supplied.) ■
Some feeble attempts have been made to rationalize the immunity doctrine. It has been said, as already indicated, that payment of money for damage claims would be a diversion of trust funds. This rule, of course, was repudiated by the court which presumably gave it birth, but it never had merit anyway. The trust funds of a hospital are intended to care for the patients of the hospital and what could be a more equitable demand on the funds than caring for those patients actually hurt in the hospital?
Then it is contended that the patient waives the right to make claim for injuries sustained in the hospital because he accepts the competency of those who are to operate on him, nurse him, and feed him, but this argument is wholly devoid of reasonableness, to say nothing of fairness, because usually the person who *468is brought into a hospital is too ill, weak, or disabled to see, much less appraise, the abilities of those who are to monarchize over him.
It is equally argued that there is an assumption of risk by the person who “seeks and receives the services of a public charity.” Even where the charity is a fact and not a figure of speech the patient still has the right to be saved from gross negligence or wanton misconduct, but, as repeatedly stated, practically all the patients in so-called charitable hospitals pay for the services rendered to them.
It is also said that if the immunity doctrine were to be eliminated, prospective donors would cease to open up their check books to charity. Justice Rutledge spoke on this subject in the Georgetown case, supra: “No statistical evidence has been presented to show that the mortality or crippling of charities has been greater in states which impose full or partial liability than where complete or substantially full immunity is given. Nor is there evidence that deterrence of donation has teen greater in the former. Charities seem to survive and increase in both, with little apparent heed to whether they are liable for torts or difference in survival capacity.” (Emphasis supplied.)
Then there is the theory of public policy, but, of course, there is no “public policy” involved in making tortfeasors respond to legitimate claims made upon them.
After one examines all the half-hearted, stilted and forced reasons advanced in behalf of the immunity doctrine, one is forced to the conclusion that there is really only one argument which is substantial and sincere, and that is that if hospitals are required to answer for the torts of their employees they will have to make disbursements of monies which heretofore have remained in their treasuries. But this is a proposition which could, just as easily, be considered in behalf of rail*469roads, airlines and transit companies. As hospitals are vital to the continuing life of any community, so also are railroads, airplanes and buses indispensable to community, state and nation. Without means for transporting people and cargo, society would inevitably degenerate into the most primitive existence and eventually perish.
However, in spite of this all-vital indispensability of transportation facilities, the companies which pump the lifeblood into the arteries of civilization are constantly the subject of lawsuits, and the damages which they pay become part of the operating expense of the industry.
Whatever outlays hospitals would be subjected to because of trespass actions would naturally become as much a part of the running expenses of the institution as the payment of salaries for employees and the expenditure of funds for supplies.
The defendants in these appeals, and the proponents of the immunity doctrine generally, argue, however, that hospitals are not financially equipped to discharge the obligations which would arise as the result of trespass actions. And here we have come to the principal and, perhaps actually, the only concern of the immunity advocates. All other argument is merely a delaying action or diversionary tactics. How will the hospitals meet the expense which will be added to their budgets if immunity is abrogated? The answer, of course, is that they will meet that expense as all other business enterprises meet similar contingencies. If their treasuries are not sufficiently ample to provide for what may reasonably be anticipated in the liquidation of potential damage claims, they may have recourse to the purchase of liability insurance which is today as much a part of the American way of life as banks, building and loan associations, stocks and bonds, etc.
*470When the Supreme Court of Ohio repudiated the rule of immunity in that state, it said: “The policy that the funds of a nonprofit hospital should not be diverted for any purpose other than the purpose for which it was organized, causing a depletion of the hospital’s resources, and thus immunizing them from liability no longer has any foundation in our present day economy. Under present day conditions a hospital may fully protect its funds by the use of liability insurance.” (Avellone v. St. John’s Hospital, 165 Ohio 467.)
It is significant that the record in the St. Agnes Hospital case before us reveals that the hospital is already provided with liability insurance.
The fear that elimination of immunity would jeopardize the existence and survival of charitable hospitals has been shown to be, in a great measure, illusory. Justice Rutledge met the expression of this apprehension as far back as 1942 and nothing has happened since then to show that his judgment did not measure up to reality. “Further, if there is danger of dissipation, insurance is now available to guard against it and prudent management will provide the protection. It is highly doubtful that any substantial charity would be destroyed or donation deterred by the cost required to pay the premiums. While insurance should not, perhaps, be made a criterion of responsibility, its prevalence and low cost are important considerations in evaluating the fears, or supposed ones, of dissipation or deterrence. What is at stake, so far as the charity is concerned, is the cost of reasonable protection, the amount of the insurance premium as an added burden on its finances, not the awarding over in damages of its entire assets.” (Georgetown v. Hughes, supra.)
In all the briefs and arguments presented to this Court in the several times the immunity rule has been a matter for our consideration, no attorney for any hospital has advanced data or statistics to give sub*471stance to the self-generated alarm that the elimination of the immunity doctrine would be disastrous to hospitals.
As a final argument, the immunity proponents urge that if the doctrine is to be abrogated, it should be done prospectively, that is to say, this Court should announce that at some specified date in the future, charitable institutions would no longer be permitted to plead non-liability in tort cases. In the meantime, the proponents say, the hospitals would have an opportunity to fortify themselves with appropriate liability insurance against oncoming trespass actions. We have seen that one of the hospitals in these two current eases has already taken out liability insurance and it is not unlikely that the other hospital has done the same.
The question as to whether the immunity doctrine would be abandoned in Pennsylvania is one which has been a matter of public discussion and debate for a long time. Law books, law reviews, periodicals, commentators, lecturers, professors, students have had the matter in focus for decades. It is difficult to believe that most of the institutions which will be involved by the decision in this case have not exercised prudence and provided for an eventuality.
Nor can it be doubted that insurance companies, with business and even commendable zeal, have prevailed upon hospitals to take out insurance against the possibility or even probability that eventually Pennsylvania would acknowledge an obligation accepted by most of the English-speaking world. On that basis they have quite likely been collecting sizeable premiums for liabilities which up to now have not eventualized. The only risk which they have been running is the risk that the immunity doctrine might be eliminated and then they would be called upon to meet the very contingency for which they were accepting premiums. For them the delay in the announcement of the demise of *472the immunity doctrine has been a boon of no small proportion. To have them now meet the very condition for which they have insured their patrons would be no hardship to them and certainly not to the insured.
However, putting aside the insurance matter under discussion, a prospective abrogation of the immunity doctrine would be not only unfeasible but unjust. The effect of a just decision cannot be delayed when the need for its remedial force is immediate. To postpone the effective date of the new rule would be like refusing to give medicine to currently ill patients until an army of doctors may be recruited for a possible future epidemic.
Moreover, to postdate the effectiveness of a judicial decree is to take away its judicial character and invest it with the attributes of a legislative fiat. The purpose of the courts is to decide pending litigation and not to declare what the law should be in the future. That type of law-making is delegated to the Legislature by the Constitution. Our Court does not even have the authority to render advisory opinions, much less to produce legislative enactments.
But aside from this academic discussion, a prospective decision would deny to the widow and the two children of William Juliano the right to litigate a claim which we pronounce to be legal and just. A postdated effect of this decision would be to take away from Kenneth Michael a right to recover for the damage done to him by the hospital which authorized the use of a scalpel on the wrong part of his body, after this Court will have announced that his complaint is legal, his claim just, and his right to recovery unquestioned. Such a stultification would be intolerable and would bring the administration of justice into disrepute.
The immunity rule in Pennsylvania has long ago outlived whatever usefulness it may have originally had. Its continuance will- only add further unfortu*473nates to those who have already gone uncompensated, for injuries sustained through the negligence of agents, servants and employees of institutions engaged in what is now universally recognized as a highly worthy business enterprise.
I dissent.
“But charity will never be true charity unless it takes justice into constant account . . . and let no one attempt with trifling charitable donations to exempt himself from the great duties imposed by justice.” (Pope Pius XX in encyclical letter “Divini Redemptoris” — Paulist Press Ed. pp. 22, 23.)
296 N. Y. 502.
Sutherland v. N. Y. Polyclinic, 298 N. Y. 682.
296 N. Y. 936.
Berg v. N. Y. Society, 1 N. Y. 2d 499.
Ranelli v. Society of N. Y. Hospital, 295 N. Y. 850.
Grace v. Manhattan, 301 N Y. 660.