MADISON v. CITY AND COUNTY OF SAN FRANCISCO (1951)

I dissent.

While voting to grant a petition for hearing in the Supreme Court after decision by a District Court of Appeal is ordinarily sufficient to indicate my disapproval of the holding of the intermediate appellate court, in this case I deem it advisable briefly to state my reason for so voting.

There can be no doubt but that both the majority and concurring opinions of the District Court of Appeal, 234 P.2d 995, followed the rule which has been heretofore announced in cases of this character by the Supreme Court and District Courts of Appeal of this state. This rule is based upon the old outmoded and outgrown maxim that “The King Can Do No Wrong,” or the doctrine of sovereign immunity. This had its origin in medieval English theory and was introduced in this country without sufficient understanding. Government Liability in Tort, Borchard, 34 Y.L.R. 1. It has been pointed out that what the maxim really meant was that the King was privileged to do no wrong—that if his acts were against the law—they were wrongs—not that he should be immune from the consequences of his unlawful acts. However that may be, there was never any reason for its incorporation into the law of this country where democracy exists and where we are said to have a “government of the people, by the people and for the people.” It requires but a slight appreciation of the facts to realize that in Anglo–American law the individual citizen is left to bear almost all the risks of a defective, negligent, perverse or erroneous administration of the state's functions—an unjust burden—which is becoming graver and more frequent as the government's activities become more diversified and as we leave to administrative officers in even greater degree the determination of the legal relations of the individual citizen. 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 the officers, should be allowed to rest as they now generally do, in practice, if not in theory, at the door of the unfortunate citizen alone.

I can not follow the reasoning that a county or municipality in operating a hospital, where a charge is made to a patient for services rendered, is not engaged in a proprietary activity, and in my opinion the defendant in the case at bar was so engaged, and should be held liable for the negligence of its employees which directly caused injury to such a patient.

The reasoning which supports the doctrine of sovereign immunity in cases of this character is so fallacious and unsound that it should shock the intelligence, as well as the sense of justice, of those who believe in the American way of life. In my opinion, decisions of this kind are not only productive of widespread disrespect for the law and courts but can be used as the basis for propaganda which affects the stability of our government.