dissenting. The issue before this court is: Whether the Ohio State University Hospitals may be held accountable in tort for the negligent acts of hospital employees and agents in treating a patient, or whether the doctrine of governmental immunity shields them from such liability and justifies the trial court’s grant of defendants’ motion to dismiss the compaint without that court first making a determination as to whether the defendants, in *55operating the Ohio State University Hospitals, were exercising a governmental function or a proprietary function.
The shield of immunity protected charitable hospitals from liability in tort prior to this court’s decision in Avellone v. St. John’s Hospital (1956), 165 Ohio St. 467, wherein it was held:
“A corporation not for profit, which has as its purpose the maintenance and operation of a hospital, is, under the doctrine of respondeat superior, liable for the torts of its servants.”
The defense of governmental immunity was also available to municipal hospitals operated not as a proprietary but as a governmental function (Hyde v. Lakewood [1965], 2 Ohio St. 2d 155), until this court’s decision in Sears v. Cincinnati (1972), 31 Ohio St. 2d 157. The syllabus in Sears reads:
“1. The maintenance of a municipal hospital by a municipal corporation is not essential to the government of a municipality and is not an exercise of an inherently governmental function.
“2. In an action for damages alleged to be caused by the negligence of an employee of a municipal hospital, the defense of governmental immunity is not available to the municipality which owns the hospital.
“3. Under the doctrine of respondeat superior a municipal corporation is liable to a party injured by the negligence of an employee of a hospital owned by the municipality.”
In the opinion in Sears, at page 160, the following comment is found concerning the liability of hospitals operated by an instrumentality of the state: “The rule governing those hospitals, as expressed in paragraph four of the syllabus in Wolf v. Ohio State University Hospital (1959), 170 Ohio St. 49 * * * is that such hospitals * e are not suable in tort until the G-eneral Assembly * * * enacts a statute determining the courts and the manner in which such suits may be brought against the state.’ ”
The foregoing cases reflect the status of existing Ohio law in respect to immunity from liability of hospitals to *56tortiously injured patients, i. e., the immunity doctrine has been completely abolished as to hospitals operated by charitable corporations and as to those operated by municipalities. The question presently before the court is whether the immunity doctrine is applicable to a hospital operated by an instrumentality of the state in an action in tort wherein it is claimed that such hospital is not operated as a governmental but as a proprietary function.
Resolution of the issue presented requires re-examination of the Wolf case, which involved, as a defendant, the same University Hospital. A reading of Wolf discloses that its holding that the hospital was not liable in tort was based upon two considerations: (1) That the provision of Section 16, Article I of the Constitution of Ohio, providing that suits may be brought against the state in such courts and in such manner as may be provided by law, is not self-executing; and (2) that hospitals operated by instrumentalities of the state as governmental functions are immune from tort liability. This latter consideration is evidenced by the quotation in the court’s opinion, at page 53, from 25 A. L. R. 2d 210, that “ ‘as a general proposition, a governmental unit or agency is immune from liability for torts committed in connection with operating a hospital when it is operated in the performance of a governmental function.’ ”
That the court in Wolf did not consider the question presented in this appeal, i. e., whether the hospital could be liable in tort for negligence arising out of a proprietary function, is established by the concurring opinion of Taft, J., later C. J., wherein he stated:
“In my opinion, there are no allegations in the petition that would support a conclusion that the trustees of Ohio State University, in operating this hospital, were engaged in the performance of other than a governmental function. See 25 A. L. R. 2d, 203, 228 et seq. In the absence of specific statutory provision therefor, a public body, such as these trustees, is not liable in tort for negligence in the performance of a governmental function. Whether it is suable or liable in tort for negligence in the performance *57of a proprietary function is a question not before us for determination in this case.” (Emphasis added.)
Thus, it is only that portion of the holding in Wolf relating to the nonsuability of the state under Section 16 of Article I of the Ohio Constitution which, in the absence of statutory consent, may be relied upon as authority to foreclose recovery by plaintiffs in the present cause. The absence of such legislation has been held to bar actions against the state, both prior to and after the decision in Wolf. The cases so holding were reviewed in this court’s most recent pronouncement on the subject in Krause, supra (31 Ohio St. 2d 132). The syllabus in Krause reads:
“1. The state of Ohio is not subject to suits in tort in the courts of this state without the consent of the General Assembly. (Raudabaugh v. State, 96 Ohio St. 513; Palumbo v. Indus. Comm., 140 Ohio St. 54; State, ex rel. Williams, v. Glander, 148 Ohio St. 188; and Wolf v. Ohio State Univ. Hospital, 170 Ohio St. 49, approved and followed.)
“2. Section 16 of Article I of the Ohio Constitution, as amended September 3, 1912, abolished the defense of governmental immunity and empowered the General Assembly to decide in what courts and in what manner suits may be brought against the state.
“3. Section 16 of Article I of the Ohio Constitution, as amended September 3, 1912, which provides that # * Suits may be brought against the state in such courts and in such manner, as may be provided by law,’ is not self-executing, and statutory consent is a prerequisite to such suit. (Raudabaugh, Palumbo, Williams and Wolf, supra, approved and followed.)
“4. Section 16 of Article I of the Ohio Constitution does not offend the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
“5. The rule-making authority of the Supreme Court of Ohio is limited under Section 5(B) of Article IV of the Ohio Constitution to the formulation of rules governing practice and procedure in all the courts of this state, and by such rules this court may not abridge, enlarge or modify any substantive right.”
*58In the course of the opinion in Krause, the concept of Section 16, Article I, was described, at page 142, as follows:
“* * * That concept was to abolish the defense of governmental immunity. But it was not to make the state amenable to suit without its express consent. In other words, it was not intended to be self-executing. Consent by the General Assembly would be manifested by the enactment of a statute or statutes providing in what courts and in what manner suits may be brought against the state.
“Having examined the history of Section 16 of Article I, and similar provisions in other state constitutions, as construed by their supreme courts, this court is impelled to the same conclusion as that reached by the court in Raudabaugh v. State, supra (96 Ohio St. 513), and expressly approves the syllabus in that case. Likewise, because the decisions in the subsequent cases of Palumbo v. Indus. Comm., supra (140 Ohio St. 54), State, ex rel. Williams, v. Glander, supra (148 Ohio St. 188), and Wolf v. Ohio State Univ. Hospital, supra (170 Ohio St. 49), are predicated on Raudabaugh, they are also expressly approved.”
It is evident at this point that Krause and the cases cited therein might be construed by some as barring plaintiffs ’ action here. See, also, Schaffer v. Bd. of Trustees of Franklin County Veterans Memorial, supra (171 Ohio St. 228). In Krause, however, as in Wolf, it was not necessary for the court to determine whether the state could be liable in tort for negligence committed in the exercise of a proprietary function. Each of those eases was decided upon the facts in the particular case.
In Wolf, the issue of whether a governmental function or a proprietary function was being exercised was not before the court. In Krause, it was clearly a governmental function which was involved. It is unnecessary to overrule, modify or distinguish the various paragraphs of the syllabi in Wolf and Krause because, as this court pointed out in paragraph one of the syllabus in Williamson Heater Co. v. Radich (1934), 128 Ohio St. 124:
*59“The syllabus of a decision of the Supreme Court of Ohio states the law of Ohio, but such pronouncement must be interpreted with reference to the facts upon which it' was predicated and the questions presented to and considered by the court.”
Prior to the decision in Sears v. Cincinnati, supra (31 Ohio St. 2d 157), overruling Hyde v. Lakewood, supra (2 Ohio St. 2d 155), liability in tort of municipal hospitals depended upon whether their functions were proprietary or governmental in nature. The rule was expressed in the syllabus of Hyde, as follows:
“1. Unless there is a statute removing immunity, a governmental unit or agency may escape liability for the commission of a tort upon a showing that a governmental function was being performed at the time the tort occurred.
“2. Whether the performance of various activities by a municipality is governmental or proprietary frequently depends on the peculiar facts of the particular case. In one instance a municipally owned hospital may be found to be carrying on a governmental function in the manner of its operation, whereas in another instance a finding may be made that a municipally owned hospital is being operated in a proprietary capacity.”
That the state, as well as other governmental units, engages in activities in a proprietary capacity was recognized in Cleveland Terminal & Valley Rd. Co. v. State, ex rel. (1912), 85 Ohio St. 251; Fidelity & Cas. Co. v. Union Savings Bank Co. (1928), 119 Ohio St. 124; and Sullivan v. State, ex rel. O’Connor (1932), 125 Ohio St. 387. In fact, it was noted in the Cleveland Terminal case, at page 295, that “* * * when it acts in that capacity it is bound by the same rules as those which it applies to its citizens.”
In Carroll v. Kittle (1969), 203 Kan. 841, 457 P. 2d 21, the Supreme Court of Kansas held the Board of Regents of the state of Kansas liable for personal injuries sustained by a patient while hospitalized in the University of Kansas Medical Center. In striking down the defense of sovereign immunity the court said, at page 850; “If the *60government is to enter into businesses ordinarily reserved to the field of private enterprise, it should be held to the same responsibilities and liabilities.”
Prior to its decision in Carroll, the Kansas Supreme Court had held that “a county is not liable for damages for negligence in any capacity unless such liability is expressly imposed by statute * * *”; that “we have not been consistent in applying the rule to governmental agencies”; and that “a city is liable for its negligent acts when acting in a proprietary capacity, particularly in hospital cases.” (203 Kan., at page 847.)
The Supreme Court of California, in Muskopf v. Corning Hospital Dist. (1961), 55 Cal. 2d 211, 359 P. 2d 457, was presented with the question whether to apply the doctrine of governmental immunity to a hospital operated by a county. Observing, at page 214, that “the state, like a municipality, can act in a proprietary capacity,” the court proceeded to hold the governmentally operated hospital responsible, concluding that “the rule of governmental immunity from tort liability must be discarded as mistaken and unjust.” The California Supreme Court reached this conclusion even though Section 6 of Article XX of the California Constitution, stating that “suits may be brought against the state in such manner and in such courts as shall be directed by law,” was held to provide, at page 218, “merely for a legislative consent to suit” and therefore, as noted in Krause, supra, at page 139, “was not self-executing,”
Perkins v. State (1969), 252 Ind. 549, 251 N. E. 2d 30, involved an action against the state of Indiana for damages to plaintiffs who became ill from contaminated water at a park owned and operated by the state. The defense of sovereign immunity was raised, the state contending that it was immune against suit unless it had consented thereto.
Section 24, Article 4 of the Indiana Constitution, provides: “Provision may be made, by general law, for bringing suit against the state * * *.” Interpreting this section, the court said, at page 551: “As we read this section it occurs to qs that the framers of the Constitution assumed *61that at common law the state was immune from suit and authorized the Legislature to modify such liability to the extent it may see fit * * *. We are dealing here not with a constitutional prohibition, but rather with a principle of common law which has its roots in the ancient common law of England which held ‘The King can do no wrong’ and hence could not be sued in any court of law. ’ ’
The Indiana court, after reviewing its earlier holdings eliminating the immunity of charitable institutions and its holdings that municipalities were liable for proprietary functions, stated, at pages 556 and 557:
“If the cities, towns and lesser agencies of the state are liable under a principle of laAv, consistently then the state * * * should be liable for its acts under like circumstances.
ÍÍ* * *
“There may be some logical reason why a government should not be liable for its governmental actions and functions. We do not have that question before us and need not at this time give it further consideration, since the facts in this case show that the injurious act complained of in this case arose out of the proprietary function of the state of Indiana, namely, the furnishing of housing facilities in a state park. * * * It was a commercial project, supposedly operated in a business-like fashion. * * * It seems to us to bo consistent in this principle of law and its application in this jurisdiction that if certain municipalites and the county governments are liable to the extent of the operation of proprietary functions, then there is no reason why the state as a principal should not likeAvise be liable for its proprietary function. It is of little concern to the injured party whether the injury was caused by a city, county or state. We, feel to be consistent, the common law principle should be applicable to all governmental units alike.”
In Sears, supra (31 Ohio St. 2d 157, 161), reasoning similar to that found in Perkins v. State, supra (252 Ind. 549), was employed by this court as follows:
“This court concludes that where a municipality oAvns *62a hospital, thereby providing a service not essential to municipal government, there is no basis in logic for granting the municipality governmental immunity as to that hospital. Tn fact, logic dictates that a municipality owning a hospital should be treated in the same manner as was the charitable corporation- in Avellane, supra, and should be liable in tort for injuries sustained by its hospital patients due to the negligence of its employes or agents.”
Analysis of the foregoing cases and the reasoning expressed therein leads to the conclusion that the state, in the operation of a hospital in a proprietary capacity, “is bound by the same rules as those which it applies to its citizens.” (Cleveland Terminal & Valley Rd. Co. v. State, ex rel., supra [85 Ohio St. 251, 295]), and should be liable in tort in the same manner as are charitable corporations and municipalities which operate hospitals. A further conclusion to be drawn is that, where a tort action is brought against the state for a wrong committed by its employees or agents in the performance of a proprietary function, such an action is not within the purview of the provisions of Section 16, Article I of the Ohio Constitution, and can be maintained without the consent of the General Assembly.
I adopt both of the preceding conclusions for my conclusion in this cause upon the basis, expressed in Perkins v. State, supra (252 Ind. 549), that “we are dealing here not with a constitutional prohibition, but rather with a •principle of common law * * *.”
It is recognized that this is a departure from our prior holding that the state is “* # * not suable in tort until the General Assembly * * * enacts a statute determining the courts and the manner in which such suits may be brought against the state.” Wolf v. Ohio State University Hospital, supra (170 Ohio St. 49). Therefore, the cases cited therein, wherein tort actions were held not to be maintainable against the state because the General Assembly had not enacted statutes consenting to suit, and the actions were based upon torts committed by state employees or agents in the discharge of proprietary functions, should be dis-
*63approved. The ambit of that decision, of course, does not extend to cases where liability of the state may be disclaimed for the reason that the state’s action involves a governmental function. See, e. g., Williams v. Columbus (1973), 33 Ohio St. 2d 75.
It is recognized, also, as pointed out in Krause, at page. 143, that: “When the provisions of Section 16 of Article I and Section 22 of Article II of the Ohio Constitution are considered in pari materia, it is clear that three distinct powers were delegated to the General Assembly: (1) the power to establish the courts where suits may be brought; (2) the power to provide the manner in which such suits may be brought; and (3) the power of control of the purse string, i. e., the exclusive power to appropriate the money from the state treasury to satisfy the claim.”
Our position herein, that lack of statutory consent for suit does not foreclose the present action, necessitates discussion of item three above, i. e., legislative power over appropriations for satisfaction of judgments in cases where the state is adjudged liable in eases involving proprietary functions. This, of course, is fundamentally a problem for legislative solution. Parenthetically, we observe, that, since 3957, R. C. 9.83 has provided for the state and its political subdivisions to procure insurance insuring its officers and employees against liability occasioned by operation of a motor vehicle being used in the course of the business of the state.
On the subject of insurance to defray liability expenses for charitable hospitals, Matthias, Acting C. J., in Avellone, supra (165 Ohio St. 467), stated, at pages 474 and 475:
“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, and, since such funds may be used to recompense those who are *64injured through the negligent selection of servants and strangers, there is no reason why such funds may not be used in the purchasing of insurance which will protect not only the hospital and its funds but also any person injured through its negligence or the negligence of its servants.
“In mentioning insurance we call attention to the fact that the present discussion does not concern the imposition of liability where none theretofore eoñsted. It concerns, rather, the public policy which has heretofore held institutions such as the defendant immune as to beneficiaries, under a liability which is pre-existent under the ordinary rule of respondeat superior. We emphatically state that we are not imposing a liability heretofore nonexistent merely because it may be indemnified by insurance.
“What we do find with regard to this aspect is that the availability of liability insurance and the existing power to purchase it with hospital funds, coupled with the increased base of remuneration for services rendered and the efficient businesslike management of modern hospitals, certainly tend to negate the argument that to hold the hospital amenable, under the doctrine of respondeat superior, to damages for injuries to patients caused by the negligence of its servants would be such a detriment as to defeat the charitable purpose for which it was organized' and incorporated. ”
Similarly, here, imposition of liability upon the state for torts committed by its agents or employees engaged in the performance of proprietary functions should not impede appreciably the operation of the state and its agencies.
In a concurring opinion in Hack v. Salem (1963), 174 Ohio St. 383, 397, which involved immunity of a municipality, Judge Gibson stated: “To raise the question of whether the municipality or the injured individual is better able to bear the cost is to answer it. The municipality, which is able to spread the burden of the cost of an injury among its taxpaying residents, is in a much better position, in the vast majority of cases, than the injured individual, who *65must hear such loss from his own resources.” This reasoning is readily applicable to the state and is a cogent argument for making the state answerable in tort for wrongs visited by it upon its citizenry.
Adoption of the principle that the state is liable for torts committed by its agents and employees engaged in proprietary functions raises no greater problems, in determining what is proprietary and what is governmental, than this court has been confronted with in the past in cases where such rule has long prevailed in suits brought against municipalities. As to hospitals specifically, the factors to be considered were discussed in detail in Hyde v. Lakewood, supra (2 Ohio St. 2d 155).
It might be said that disapproval of prior cases which have permitted the defense of governmental immunity in cases where there was no statutory consent for suit against the state, and where proprietary functions may have been established, violates the principle of stare decisis.
The decisions in Avellone, supra, and Sears, supra, however, illustrate that the principle of stare decisis on occasion must yield to allow for the evolutionary development of the law. The conclusion I reach here is no more than an extension of the rationale of those cases.
The posture of the present cause is that the trial court, following the law as previously announced by this court, sustained defendants’ motion to dismiss. Thus, no determination was made as to -whether the operation of defendant hospitals was a governmental or proprietary function. In accordance with our position that the state is answerable in tort for the negligent acts of its agents or employees committed while carrying on proprietary functions, the defendants may be liable if it is found that the operation of the hospitals is a proprietary function. Such a determination should be made in the trial court.
Therefore, the judgment of the Court of Appeals should be reversed and the cause remanded to the Court of Common Pleas for further proceedings not inconsistent with the views expressed herein.