Childs v. Greenville Hospital Authority

• Decision Date: 21 March 1972
• Docket Number: No. 8046,8046
• Citation: 479 S.W.2d 399
• Parties: J. C. CHILDS, Individually and as Next Friend of Daisy Childs, his wife, Appellant, v. GREENVILLE HOSPITAL AUTHORITY et al., Appellees.
• Court: Texas Court of Appeals

Page 399

479 S.W.2d 399

J. C. CHILDS, Individually and as Next Friend of Daisy Childs, his wife, Appellant, v. GREENVILLE HOSPITAL AUTHORITY et al., Appellees.

No. 8046.

Court of Civil Appeals of Texas Texarkana.

March 21, 1972.

Rehearing Denied April 11, 1972.

Dan R. McCormack, Dallas, for appellant.

John Mackintosh, Jr., Thompson, Knight, Simmons & Bullion, Dallas, W. D. Ralston, Roe & Ralston, Corsicana, for appellees.

CHADICK, Chief Justice.

A summary judgment in the trial court decreed that Daisy Childs and her husband, J. C. Childs, take nothing in their negligence action against Greenville Hospital Authority and H. Beckham, and awarded costs against the Childs. In the prosecution of this appeal the Appellants, Daisy Childs and J. C. Childs, have briefed five points of error. Point IV will be first considered. It is in this language:

'The trial court committed error in granting the motion for summary judgment of the defendant Hospital because the defendant Hospital is not entitled to governmental immunity in this particular case.'

The City of Greenville, Texas, exercised authority delegated to it by Tex.Rev.Civ.Stat.Anno. art. 4437e (1966) and created a body 'politic and corporate' under the name of Greenville Hospital Authority. This entity was endowed by Sections 3, 14, 16 and 17 of the statute with the characteristics of a tax exempt, non-profit municipal corporation having the capacity to sue and be sued. Property of the Authority is held by it for public purposes only and dedicated exclusively to the use and benefit of the public. The parties agree that there are no Texas cases in which the doctrine of governmental immunity from tort liability has been considered in connection with a hospital authority established pursuant to the mentioned statute.

It is a general rule in Texas that exemption from tort liability extends to municipal acts or functions performed as the agent of the state, in furtherance of general law and for the interest of the public at large. 40 Tex.Jur.2d, Municipal Corporations, Sec. 618. Municipal corporations have a rather curious dual character, as Prof . William L. Prosser commented in 'Prosser on Torts,' 3d Ed. p. 1004:

'On the one hand they are subdivisions of the state, endowed with governmental powers and charged with governmental functions and responsibilities. On the other they are corporate bodies, capable of much the same acts as private corporations, and having the same special and local interest and relations, not shared by the state at large. They are at one and the same time a corporate entity and a government. The law has attempted to distinguish between the two functions, and to hold that insofar as they represent the state, in their 'governmental', 'political', or 'public' capacity, they share its immunity from tort liability, while in their 'corporate', 'private,' or 'proprietary' character they may be liable.'

Judge Smedley's opinion in City of Dallas v. Smith, 107 S.W.2d 872 (Tex.Comm'n.App. opin. adpt. 1937), examined case and statutory law as it then existed relative to counties and cities of all classes, and concluded that a city exercised governmental functions when it 'maintained and operated a hospital.' Gartman v. City of McAllen, 130 Tex. 237, 107 S.W.2d 879 (1937) to like effect was concurrently decided. The principles that led the Supreme Court to adopt Judge Smedley's conclusion apply and operate with equal cogency in this instance and compel a similar conclusion. Expressed positively, this court holds that the Greenville Hospital Authority performs a governmental function and is immune from tort liability.

While insisting that the conclusion just expressed is not warranted, Appellants additionally urge that the Hospital Authority is not immune because (1) the Hospital functions primarily for the benefit of persons within the Authority's territorial limit, and because (2) the authorizing statute impliedly waived the Authority's immunity from tort liability by providing that a Hospital Authority would have capacity to sue and be sued. This first proposition was considered in City of Dallas v. Smith, supra, and disallowed. See also Howe v. Citizens Memorial Hospital of Victoria County, 426 S.W.2d 882 (Tex.Civ.App. Corpus Christi 1968), reversed on other grounds 436 S.W.2d 115 (Tex.Sup.1968); Missouri Pacific Railroad Company v. Brownsville Navigation District, 453 S.W.2d 812 (Tex.Sup.1970); State v. Brannan, 111 S.W.2d 347 (Tex.Civ.App. Waco 1937, no writ). The second proposition has been frequently denied in analogous cases. Bennett v. Brown County Water Improvement District No. 1, 153 Tex. 599, 272 S.W.2d 498 (1954); Bexar Metropolitan Water District v. Kuntscher, 274 S.W.2d 121 (Tex.Civ.App. San Antonio 1954, no writ); Jones v. Texas Gulf Sulphur Co., 397 S.W.2d 304 (Tex.Civ.App. Houston 1965, writ ref'd, n.r.e.); Karling v. Lower Colorado River Authority, 303 S.W.2d 495 (Tex.Civ.App. Austin 1957, writ ref'd, n.r.e.).

Point of Error II takes this form:

'The trial court committed error in granting the motion for summary judgment of the defendant Nurse because there is a question of fact as to whether the Nurse was negligent in failing to follow instructions of Dr. C. B. Weis.'

The argument in its entirety under this point is as follows:

'The question here has to do with the duty of the Nurse. Her duty is to examine the patient, report to the doctor, and follow the doctor's instruction. Although the Doctor seems to be in error as to the time of day, his affidavit indicates that his instructions to the Nurse were: 'to have the girl call her doctor in Garland and see what he wanted to do,' while according to Mrs. Childs, the Nurse instructed her that 'the doctor said you will have to go to Dallas.' Certainly this raises a question of fact as to whether the Nurse violated her duty by not properly following the Doctor's instructions.'

Appellants do not now contend that a physician-patient relationship existed between the doctor alluded to and Mrs. Childs. Any issue in that respect is settled by the summary judgment proof, as well as by a prior adjudication in Childs v. Weis, 440 S.W.2d 104 (Tex.Civ.App. Dallas 1969, no writ). If Mrs. Beckham breached a duty owing to Mrs. Childs, the breached duty must necessarily be a product of the relationship between these two parties.

An understanding of the nature of Duty in this context is indispensable. A preeminent scholar-philosopher in the tort field has...