(dissenting).
I concur in that portion of the majority opinion which minimumly qualifies the doctrine of charitable immunity, however, I do not think the change suggested is sufficient and I dissent. I would abolish the doctrine, as to hospitals, in its entirety.
This doctrine was accepted in the United States after it had been repudiated in England. The first court in this country to reject the doctrine was Rhode Island. See Glavin v. Rhode Island, 12 R. I. 41, 34 Am. Rep. 675 (1879).
In fact, as stated in the majority opinion, the doctrine in its complete form has been repudiated in all but three states, Maine, New Mexico and South Carolina. Prosser, Law of Torts, Section 133 (4th Ed. 1971).
*489The doctrine has been universally and soundly criticized as archaic, irrational and unreasonable.
It tends to foster negligence and protects the institution well able to afford payment of damages, placing the financial burden on the one who is least able to bear it.
The seminal charitable immunity decision in South Carolina was Lindler1 and the sharply divided court there rested its holding on public policy grounds. This was strongly criticized by the dissenters who argued:
“It is a principle of law as well as morals, that men must be just before they are generous. There is no higher or more just principle than that a trust fund shall remedy the evil itself has done, before it attempts to remedy the evils done by others.” At page 35, 81 S. E. at page 515.
This Court has recognized that the opinions of an appellate court should remain as constant as the proper administration of justice under an enlightened government will permit. Dean v. Timmerman, 234 S. C. 35, 106 S. E. (2d) 665 (1969). Thus the issue squarely before us is whether the public policy underpinnings of the doctrine are valid today.
The doctrine of charitable immunity may have been justified under the facts existing at that time. Today we live in a changing world with a new set of facts.
Discouraging charitable endeavors is not the public policy of this State, however, the abrogation of the doctrine, as to hospitals, does not mean that charities will fade away.
“If havoc and financial chaos were inevitably to follow the abrogation of the immunity doctrine, as the advocates for its retention insist, this would certainly have become apparent in the States where that doctrine is no longer a defense.” Flagiello v. Pennsylvania Hospital, 417 Pa. 486, 503, 208 A. (2d) 193 at 201. Accord, Rabon v. Rowan Memorial Hospital, 269 N. C. 1, 152 S. E. (2d) 485 (1967).
*490Assuming there was justification for the doctrine when it was first announced, it has lost that justification today. In 1960, the Supreme Court of Michigan in Parker v. Port Huron Hospital, 361 Mich. 1, 105 N. W. (2d) 1 held:
“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.”
Liability is the rule, immunity the exception. As stated in Flaqiello v. Pennsylvania Hospital, supra, 417 Pa. at 494, 208 A. (2d) at 198:
“A person may recover damages if he is injured, as the result of negligence, in a hotel, theater, store, skating rink, bowling alley, train or ship, yet he cannot recover if he is hurt in the place where accidents are considered most unlikely to occur — in a hospital, where one goes to be cured of an already existing infirmity and not to be saddled with additional woe and torment. This is indeed the paradox of paradoxes. It has no logic, reason, and least of all, justice to support it. And still more paradoxical is the argument that, by refusing recovery to the victim of a hospital’s own negligence, one somehow is serving charity!”
Here the application of the immunity favors a large hospital which derives substantial revenue from paying patients over a paying patient allegedly injured at the hands of those charged with patient care.
I conclude that the public interst is ill served by continuation of the exemption.
“Neither the encouragement of charity and philanthropy nor the doctrine of immunity on the ground of public policy can dispel the fact that the primary interest and welfare of the public requires that one person should not suffer an in*491jury to his or her life or limb without recompense merely in order that all of the earnings of a charitable hospital should be devoted to the purpose of providing charity for others.” Mississippi Baptist Hospital v. Holmes, 214 Miss. 906, 939, 55 So. (2d) 142, 156. Cited with approval in Rabon v. Rowan Memorial Hospital, 269 N. C. 1, 152 S. E. (2d) 485, 493 (1967).
The primary source of funds for hospitals is insurance. It is estimated that more than 70% of its charges are paid by insurance benefits. Another type of insurance makes the doctrine even more unrealistic. Liability insurance is available at reasonable rates. The effect of this cost would not deplete the funds of the hospital, in fact, it could be passed on as patient costs. Some hospitals, in anticipation of the day when they will not have this cloak of immunity, now carry insurance. 2
Abolition of the immunty as to hospitals does not suggest that I am insensitive to legitimate concerns of charities. I firmly believe that if a hospital functions as a business institution by receiving payments from paying patients for what it offers, it must be a business establishment also in meeting its obligations.
I would abolish the doctrine of charitable immunity in its entirety, as to hospitals, and remand the case for further proceedings consistent with this opinion.
Gregory, J., concurs.Lindler v. Columbia Hospital, 98 S. C. 25, 81 S. E. 512 (1914).
The charity in Decker v. Bishop of Charleston, 247 S. C. 317, 147 S. E. (2d) 264 (1966) was insured.