Elliott v. Lea County

• Decision Date: 17 February 1954
• Docket Number: No. 5732,5732
• Citation: 58 N.M. 147,1954 NMSC 26,267 P.2d 131
• Parties: ELLIOTT v. LEA COUNTY.
• Court: New Mexico Supreme Court

Page 131

267 P.2d 131

58 N.M. 147

ELLIOTT v. LEA COUNTY.

No. 5732.

Supreme Court of New Mexico.

Feb. 17, 1954.

Neal & Girand, Hobbs, for appellant.

Cowan & Schubert, Joseph O. Walton, Hobbs, Jones, Hardie, Grambling & Howell, El Paso, Tex., for appellee.

LUJAN, Justice.

John Elliott brought an action against Lea County to recover damages for injuries received by him when he stepped into an open unguarded and unlighted ramp while leaving the Lea County Community Hospital premises. The facts are that appellant's wife was a pay patient in the above hospital for surgery; that about eight o'clock in the evening, on May 28, 1951, appellant visited his wife and stayed with her for about an hour; that he had not been at the hospital before and when leaving he asked two employees how to get out; that they instructed him as to the proper exit but he did not understand them; that he saw a door in the hall which had a light with the word 'exit' over it and departed by that door; that after he left the hospital through said door he knew that he had gone out the wrong exit; that there were no lights on the outside; that without knowledge of the terrain of the premises he attemped to work his way to the front of the hospital, and in almost absolute darkness crossed through a flower bed, two curbs and hedge before falling into the ramp or excavation.

The case was heard by the district judge and a jury. At the conclusion of plaintiff's case as well as at the conclusion of all of the evidence the defendant made a motion for a directed verdict in its favor, which motion was overruled by the court and due exception taken. The jury returned a verdict in favor of plaintiff in the sum of $5,000.

Seasonably thereafter the defendant moved the court for a judgment in its favor notwithstanding the verdict for plaintiff or for a new trial. Whereupon the district judge granted the motion for a judgment in defendant's favor non obstante veredicto, and overruled said motion for a new trial. Judgment was thereupon entered in favor of the defendant and against the plaintiff and he appeals.

The only error assigned by the plaintiff is that:

'The Court erred in sustaining ground one of the Motion for Judgment Notwithstanding the Verdict and in entering Judgment in favor of the defendant notwithstanding the verdict.'

Ground one of the motion reads as follows:

'(1) Because the undisputed testimony in the case shows that the Defendant at all times was a political subdivision, and that Lea County Community Hospital where the Plaintiff alleges he was injured was maintained and operated by the Defendant, and in maintaining and operating said hospital the Defendant was exercising a governmental power and was not legally liable for the tort alleged by the Plaintiff, and that this Honorable Court erred in failing to so hold.'

The judgment entered against the plaintiff reads:

'(1) That at all times material hereto the defendant Lea County, New Mexico, was engaged in the operation of a county hospital in Hobbs, New Mexico, and the tort which forms the basis of said action occurred in connection with the operation by Lea County, New Mexico, of said county hospital. That the operation of a hospital by Lea County, New Mexico, is a governmental function, and Lea County, New Mexico, is not responsible for damages resulting from torts arising out of their operation of said hospital, by reason of which Ground One of the Motion for Judgment is well taken and should be sustained.

'(2) The remaining grounds of said Motion should be overruled.

'It is, therefore, considered and ordered by the court That Ground One of the Motion for Judgment should be and it is sustained and the verdict of the Jury and Judgment heretofore entered in this cause should be and they are set aside and Judgment should be and it is entered in favor of the defendant and against the plaintiff * * *.'

The appellant relies strongly for a reversal on the authority of Barker v. City of Santa Fe, 47 N.M. 85, 136 P.2d 480, and asks us to extend the doctrine therein stated to the case at bar, but we are unwilling to do so.

Two cases which lend support to appellant's contention are Henderson v. Twin Falls County, 56 Idaho 124, 50 P.2d 597, 101 A.L.R. 1151 and Suwannee County Hospital Corporation v. Golden, Fla., 56 So.2d 911. The decision in those cases rested upon the distinction between governmental and proprietary functions. The court held, in each case, that in supplying hospital care to paying patients the hospitals were acting in a proprietary and corporate capacity, and therefore liable to their patients for the negligence of its employees. The above cases represent decidedly the minority rule and we refuse to follow them.

In Board of County Commissioners of Bernalillo County v. McCulloh, 52 N.M. 210, 195 P.2d 1005, we held that a hospital was a necessary public building as the phrase is used in Section 10 of Article 9 of the New Mexico Constitution, which permits counties to vote bonds for necessary public buildings, which, we believe, resulted in a holding that the operation of a hospital was a governmental function.

We hold with the majority rule that the operation of a county hospital is a governmental function.

In 20 C.J.S., Counties, Sec. 220, pages 1075, 1076 it is said:

'The general rule, as to which courts have been said to be practically unanimous, is that in the absence of statute creating such liability, a county is not liable for the tortious acts or omissions of its officers, agents, servants, or employees; but this rule is not of universal application, and it is more particularly held that in the absence of statute a county is not liable for tortious acts of its officers, agents, or servants committed by them while engaged in a governmental capacity or in the discharge of a governmental function. The general rule of law that the superior or employer must answer civilly for the negligence or want of skill of his agent or servant in the course or line of his employment, by which another is injured, is not ordinarily applied to counties; and the rule as to nonliability holds good even though the officer or agent is acting under the direction of the county board or other county authority. These rules have been applied to suits against the county by prisoners and by patients in county hospitals. * * *'

Chapter 148 of the Session Laws of 1947 provides:

'Section 1. All counties shall have the power to construct, purchase, own, maintain and operate hospitals, including isolation wards, and to purchase the necessary land therefor.

'Section 2. All such counties may, for the purpose of maintaining and operating such hospitals and isolation wards, levy and collect taxes in the same manner as taxes for other general purposes are levied and collected in such counties.

* * *

* * *

'Section 6. Counties by their board of county commissioners are authorized to make agreements with state or county agencies or other agencies for the care of sick and indigent persons.

* * *

* * *

'Section 8. The board of county commissioners of such county or counties constructing, maintaining or operating such hospital or isolation ward shall be the governing body of such hospital and isolation ward, and shall...