I dissent.
Again it is necessary for me to protest the continuance of the archaic, outmoded, unfair and discriminatory doctrine of governmental immunity blindly followed by the majority in this case. As I have heretofore pointed out, and as I will continue to point out, the reason which ever existed for the rule has long since ceased to exist, and when the reason ceases, so should the rule (Civ. Code, § 3510).
Section 32121 of the Health and Safety Code specifically provides that “Each hospital district shall have and exercise the following powers: ... ; (b) To sue and be sued in all *42courts and places and in all actions and proceedings whatever. . . . ” (Emphasis added.) A majority of this court bolds that “This provision of the statute means no more than that the district is authorized to appear as a party to an action where it otherwise would be entitled to prosecute such an action or otherwise be liable to answer in damages.” This statement may have a meaning known only to the majority, but it is held to have no meaning here where the facts show that plaintiff, a paying patient, in a hospital run by a local hospital district, was badly burned while unconscious, as the result of the gross negligence of the employees of the hospital. Such a holding is a travesty on justice and should lead every ill person to travel as many miles as his, or her, condition permits to find haven in a hospital which will be liable for its tortious conduct. To say that the state was engaged in a public work for the common good — that is, in a governmental activity as distinguished from a commercial enterprise — is begging the question. Under that definition, a minister would not be liable for tortious conduct; a doctor could never be sued for malpractice; a private hospital located conveniently near any ill patient would never be liable for injury flowing from its negligence; a dentist would not be liable for tortious conduct toward his patients. All of these tend to promote the public welfare and the public health. The fact that all of them engage in their various professions for personal monetary gain, no matter how slight, is not of the least importance under the rule stated in the majority opinion where we are told that “Neither is the profit or nonprofit phase of the activity engaged in determinative of either a proprietary or a governmental function” and that “The imposition of a charge for service is not inconsistent with the exercise of a governmental function. ” We are told that the test ‘ ‘ is whether the particular activity in which the governmental agency is engaged at the time of the injury is of a public or a private nature.”
Such a hospital as the one here concerned is in direct competition with private enterprises of the same character. No thinking person could seriously contend, as I have just done, that a private hospital, a doctor, a dentist, or even a minister, should not be liable for its, or his, or her, torts, and yet the majority is so anxious to absolve any governmental agency from liability for its torts, that that is the logical outcome of this perpetuation of an outmoded and archaic theory. This is obvious because the only peg on which the entire *43opinion rests is that in organizing such a hospital the state has promoted the health and general welfare of citizens in the particular community. When a patient enters such a hospital as a private patient, under the care of his, or her, own doctor, he or she should not be classified with an indigent person receiving care and aid from the welfare fund of the state if this absurd rule of governmental immunity is to go on ad nauseum.
The government obviously cannot insure the citizen against all defects and errors in administration, but there is no reason why the most flagrant of the injuries wrongfully sustained by the citizen, those arising from the torts of governmental officers and employees, should be allowed to rest at the door of the unfortunate citizen alone. The entire doctrine of governmental immunity rests upon a rotten foundation, and professors, writers and liberal-minded judges are of the view that it should be placed in the judicial garbage can where it belongs. (See Barker v. City of Santa Fe, 47 N.M. 85 [136 P.2d 480] ; 75 A.L.R. 1196; Brooklyn Law Review, April, 1932, “Should the Liability of Municipalities in Tort be Extended to Include Injury and Damage Caused in the Negligent Performance of a Governmental Function?”; 120 A.L.R. 1376; 54 Harv.L. Rev., pp. 437-462, “Municipal Tort Liability in Operation.”)
The majority opinion, in order to achieve its unjust result, finds it necessary to go back to 1893, and to cite cases decided in that era. For example, Chapman v. State, 104 Cal. 690 [38 P. 457, 43 Am.St.Rep. 158], was decided in 1894; Melvin v. State, 121 Cal. 16 [53 P. 416], was decided in 1898; Denning v. State, 123 Cal. 316 [55 P. 1000], was decided in 1899; Green v. State, 73 Cal. 29 [11 P. 602, 14 P. 610], was decided in 1887; Sherbourne v. Yuba County, 21 Cal. 113 [81 Am.Dec. 151], was decided in 1862. Apparently it is easier and more convenient to adhere to the views held by our early predecessors on this court than it is to discard them, old, outmoded and outworn as they are, for a doctrine or theory in keeping with modern times. So far as a majority of this court is concerned, we are living even farther back than the horse and buggy days.
I had thought when People v. Superior Court, 29 Cal.2d 754 [178 P.2d 1], was decided in 1947, that we had begun to revamp our ideas. It was said there that “The considerations of an asserted subversion of public interests by embarrassments, difficulties and losses, which developed the doctrine of nonliability of the sovereign in former times, are no longer persuasive in relation to an industrial or business enterprise *44which by itself may be looked to for the discharge of all appropriate demands and expenses growing out of operation. ’ ’ I find, however, that this court has again reverted to the old, archaic theory of sovereign immunity and will continue to hold that a governmental agency, no matter how it conducts its business, is engaged in its governmental capacity and is, therefore, immune from tort liability. I dissented from the denial of a hearing in Madison v. City & County of San Francisco, 106 Cal.App.2d 232 [234 P.2d 995, 236 P.2d 141], a case involving governmental immunity, and I will do so every time a majority of this court votes to perpetuate the archaic and outmoded doctrine.
We are told in the majority opinon, that whether the doctrine should be modified in this state is a legislative question. Under the section of the Health and Safety Code heretofore quoted, it is no longer a legislative question. The Legislature has already spoken. It has provided that such a district may “sue and be sued in all courts and places and in all actions and proceedings whatever.” It is difficult to imagine language which could set forth with more clarity the position already taken by the Legislature, and if the majority of this court was not so fettered and weighted down by the outmoded traditional concept of sovereign immunity it would so hold in this case.
I would reverse the judgment with directions to the trial court to overrule the demurrer and permit the defendant to answer if it be so advised.