City of Miami v. Oates

• Decision Date: 01 December 1942
• Citation: 10 So.2d 721,152 Fla. 21
• Parties: CITY OF MIAMI v. OATES.
• Court: Florida Supreme Court

10 So.2d 721

152 Fla. 21

CITY OF MIAMI v. OATES.

Florida Supreme Court

December 1, 1942

Appeal from Circuit Court, Dade County; Arthur Gomez Judge.

J. W Watson, Jr., and Murrell & Malone, all of Miami, for appellant.

Hendricks & Hendricks, of Miami, for appellee.

BUFORD, Justice.

The City of Miami being thereunto duly authorized by statute, operates a Municipal hospital. The hospital, and its maintenance and operation, is paid for with the proceeds of taxes supplemented by fees for special attention, services and accommodations. The hospital is managed by a Board of Trustees appointed by the City Manager and approved by the City Commission. See Chapter 14234, Special Acts of 1929. The Trustees select and appoint a General Staff composed of practicing physicians and the General Staff selects, with the Trustees, the Superintendent, internes, nurses and other employees. The General Staff and the Trustees serve without pay but the internes, nurses and other employees are paid by the City for services rendered. Internes are required to be graduates of a reputable medical college and to hold certificates authorizing them to practice medicine in this State.

Rosa Oates, a citizen and resident of Miami, being afflicted with a diseased colon, in 1939 entered the hospital and had performed a colostomy. Later she had a recurrence of trouble and again entered the hospital for treatment where she on the 4th day of March, 1941, was prepared for a cauterization of the old incision which had become irritated and possibly infected. An interne, with the help of attending nurses prepared Rosa for this operation which was to be done with an electric cautery, which instrument, being heated to a high degree by an electrical current, was to be applied to the edges of the incision theretofore made in the left side of the abdomen and through which the colon functioned. In the preparation for the operation the interne sterilized the area with surgical alcohol (from 75% to 90% pure). He then saturated gauze and sponge with the alcohol and placed that on Rosa's abdomen around and in close proximity to the place to be cauterized. He then had the cautery connected in the electric power socket thereby heating the instrument to a high degree, and attempted to place the hot point on the wound, but when the point approached Rosa's body and the pads saturated with alcohol the pads burst into flame. The burning alcohol ran over the patient's body and she was severely burned, back and front, from her neck to her thighs.

Rosa filed her claim against the City for damages sustained and, when the City declined to respond in damages, she brought this suit, alleging in effect, the facts as above stated.

The City demurred to the declaration on the ground that no cause of action was alleged against the City and on the ground that the City was acting in its governmental capacity in the performance of its duty in caring for the public health. Demurrer was overruled.

The only question presented by that demurrer is, Was the City acting in its governmental capacity or in its corporate capacity?

The defendant then filed pleas to the declaration in which it set up the defense that the City had performed its sole duty when it exercised due care and diligence in the selection of competent and qualified professional physicians to serve in the hospital; that it was not an insurer of the patients who went into the hospital; that the relation of master and servant could not apply for the reason that the City could exercise no control over the manner and method of treating patients in the hospital. These pleas were demurred to and the court sustained the demurrer.

Thereafter the case went to trial on the declaration and the plea of not guilty, which plea served to deny the negligence of the interne, as alleged, and denied that the interne was an employee of the City. On the trial of the case the jury rendered a verdict in favor of plaintiff in the sum of $3,500 and defendant appealed.

Defendant's counsel at the bar of this Court stated that if plaintiff was entitled to recover the amount of the verdict and judgment was inadequate. But there has been no cross-appeal on this ground.

The first question for our determination is whether or not a municipality, in operating a hospital, acts in its governmental or its municipal corporate capacity. On this question authorities are not in harmony. We think, however, that we must follow the line of reasoning which we have heretofore adopted with reference to such matters beginning with the case of Kaufman v. City of Tallahassee, 84 Fla. 634, 94 So. 697, 30 A.L.R. 471, and in Smoak v. City of Tampa, 123 Fla. 716, 167 So. 528, 529, wherein we said: 'Generally the governmental or public duties of a municipality for which it can claim exemption from damages for tort have reference to some part or element of the state's sovereignty granted it to be exercised for the benefit of the public whether residing within or without the corporate limits of the city. All other duties are proprietary or corporate, and in the performance of them the city is liable for the negligence of its employees. City of Pass Christian v. Fernandez, 100 Miss. 76, 56 So. 329, 39 L.R.A., N.S., 649.

'The difference between governmental and corporate duties is sometimes nebulous and difficult to classify, but there is certainly nothing connected with garbage disposal that partakes of a public or governmental function. It was, consequently, one of the proprietary or corporate duties for the negligent performance of which the city may be held liable. City of Tallahassee v. Kaufman, 87 Fla. 119, 100 So. 150; Chardkoff Junk Co. v. City of Tampa, 102 Fla, 501, 135 So. 457; City of Pass Christian v. Fernandez, supra.'

And in the case of Lewis v. City of Miami, 127 Fla. 426, 173 So. 150, 152, we said:

'There was a time when all municipal functions were governmental and therefore municipal corporations were wholly free from responsibility for torts or civil wrongs, by the common law. Jones on Negligence of Municipal Corporations, § 18. This rule of municipal nonliability for torts is still recognized as to all functions whereby the municipality acts simply as an agency of the state for governmental purposes, unless of course a contrary rule be provided by statute. But as to those corporate powers and responsibilities now residing in municipalities that are outside the narrow range of functions heretofore classed by the common law as purely governmental municipal liability in an action in tort may exist, especially where the wrong and...