The opinion
PETERS, P. J., and BRAY, J.
We concur. We do so solely because the prior cases of the Supreme Court, and of the District Courts of Appeal in which hearings have been denied, have held that a county is not liable for the tortious acts of its agents in the operation of a county hospital. As an intermediate appellate court we are bound by those prior decisions, even if we do not agree with them.
The whole doctrine of governmental immunity for tort needs reappraisal. It has, of course, been greatly limited by statute. In the related field of liability of charities for tort the Supreme *252 Court, a few years ago, reappraised the law, overruled prior decisions, and imposed liability. A similar reappraisal in the field of governmental immunity is sadly needed. With the multitude of activities of government today, city, county, state and federal, it is logically unsound to draw hairline distinctions between proprietary and governmental functions, and to impose or refuse to impose liability accordingly. To argue that a county can only operate a hospital for indigents in the performance of a governmental function, and that if it takes in pay patients and acts in a proprietary capacity its acts are ultra vires and therefore no liability is imposed, is technical, unrealistic and unjustified. But that is what the prior cases have held.
Here admittedly, the city’s employees negligently killed this woman. A hospital employee negligently furnished the wrong kind of blood. Had the hospital employee negligently operated an automobile in the course or scope of his employment, or negligently used hospital property, liability would exist under some circumstances under the Public Liability Act imposing liability on counties for injuries resulting, among other things, from the defective condition of public “works and property” where certain conditions exist. In the instant ease the evidence shows that the patient was a pay patient. Yet no liability exists because this is a county hospital performing a "governmental ’ ’ function, and if it was acting in a proprietary capacity its acts were ultra vires and not binding on the counties. Of course, the doctrine of ultra vires has long been abolished as to private corporations and has largely outgrown its usefulness as to municipal corporations.
The doctrine of nonliability of government for tort is largely predicated, as the main opinion points out, on- the old common law legal fiction that the king could do no wrong. However logical such doctrine may have been when the courts were, in a realistic sense, the king’s courts, and however practical the doctrine may have been when government was limited in its activities and revenues, under modern conditions the original reasons for the rule no longer exist. When the reason for the rule is gone, the rule should be abrogated. Blind following of antiquated and outgrown precedent should not be countenanced.
If relief is to be secured from the technical and outmoded rules now applicable to the subject of liability of government for the operation of hospitals, such relief must be secured *253 from the Supreme Court or the Legislature, and not from an intermediate court that is bound by prior decisions.
Appellants’ petition for a hearing by the Supreme Court was- denied October 19, 1951. Carter, J., voted for a hearing and filed the following opinion: