Gillies v. City of Minneapolis, Civil Action No. 1715.

• Decision Date: 17 June 1946
• Docket Number: Civil Action No. 1715.
• Citation: 66 F. Supp. 467
• Parties: GILLIES v. CITY OF MINNEAPOLIS et al.
• Court: U.S. District Court — District of Minnesota

66 F. Supp. 467

GILLIES v. CITY OF MINNEAPOLIS et al.

Civil Action No. 1715.

District Court, D. Minnesota, Fourth Division.

June 17, 1946.

John H. Farley, of Minneapolis, Minn. (M. McElroy and William F. LeVeque, both of Tacoma, Wash., of counsel), for plaintiff.

R. S. Wiggin, City Atty., and Mr. Carsten L. Jacobson, Asst. City Atty., both of Minneapolis, Minn., for defendant City of Minneapolis.

NORDBYE, District Judge.

The parties have entered into a stipulation of facts, upon which the motion for summary judgment is predicated. This action is brought by plaintiff to recover damages from the City of Minneapolis and one Marcum for injuries allegedly sustained by plaintiff when he was a patient in the Minneapolis General Hospital. It is contended that the defendant Marcum, an orderly employed in the hospital by the City, committed an unjustifiable assault on the plaintiff and that the City is responsible for the negligence of its orderly. The position of the City is that it maintains and operates the Minneapolis General Hospital as a purely governmental function, and for that reason is not liable regardless of the alleged unlawful conduct of Marcum and regardless of any negligence of its administrative officers in his employment. The issue submitted, therefore, on this motion is whether the maintenance and operation of the hospital by the City is purely a governmental function, or whether its operation relates to the City's proprietary affairs or powers. It is elementary in this State that a city is not liable for torts arising out of the performance of its governmental functions, except as to negligence in the care of its streets and sidewalks. Ackeret v. City of Minneapolis, 129 Minn. 190, 151 N.W. 976, L.R.A.1915D, 1111, Ann.Cas.1916E, 897. But, on the other hand, if the maintenance and operation of a hospital by a city under the facts herein is a private or corporate function, there is no immunity for its torts. Keever v. City of Mankato, 113 Minn. 55, 129 N.W. 158, 33 L.R.A.,N.S., 339, Ann.Cas.1912A, 216; Brantman v. City of Canby, 119 Minn. 396, 138 N.W. 671, 43 L.R.A.,N.S., 862; Frasch v. City of New Ulm, 130 Minn. 41, 153 N.W. 121, L.R.A. 1915E, 749; Storti v. Town of Fayal, 194 Minn. 628, 261 N.W. 463.

It appears that on or about July 11, 1945, plaintiff, a non-resident of Minnesota, but visiting relatives in this State, was found wandering in a helpless, mentally deranged condition in the Village of Mound, Hennepin County. His mental condition was such that the sheriff of the county removed him to the Hennepin County Jail, and while so confined he became so violent that the jailer called the matter to the attention of the court commissioner of the county. Pursuant to statutory authority (Minn.Stat.1941, § 525.751), the court commissioner ordered the removal of the plaintiff to the Minneapolis General Hospital and his temporary confinement in the mental ward thereof for observation and examination and the necessary restraint pending proceedings for his commitment as an insane person. It was during such restraint, and on July 22, 1945, that he alleges he was assaulted by the orderly, which required the removal of one of his eyes. On August 14, 1945, in statutory proceedings before the court commissioner, he was found to be suffering from a manic depressive psychosis, and was adjudicated insane and committed to the State Hospital at Rochester, Minnesota.

The City of Minneapolis is under a home rule charter, adopted pursuant to Section 36, Article 4, of the Constitution of the State of Minnesota and the statutes enacted in pursuance thereof. By virtue of said charter, it was empowered to provide hospitals and hospital grounds for the City, and, pursuant to said power, it maintained and operated the Minneapolis General Hospital. According to the stipulation entered into herein, the Board of Public Welfare under the city charter is empowered to exercise general supervision and administrative control of all activities and agencies carried on and maintained by the City for (1) the promotion and preservation of health, and the prevention and suppression of disease in the City; (2) the care, conduct, management and operation of all hospitals, dispensaries, and clinics maintained by the City and the furnishing by the City of medical and dental service to the poor; (3) the relief of the poor, aged and indigent, and the maintenance, management, control and operation of all public institutions established by the City for the relief of the poor, aged and indigent. It is further stipulated: "That during all of the said times, the said Board of Public Welfare, pursuant to the said powers, exercised general supervision and administrative control over the said Minneapolis General Hospital." Moreover, it appears from the stipulation that the City of Minneapolis is under the statutory duty of providing for the general support and medical, hospital and nursing care of its poor persons, and it is recited in the stipulation that "the principal function of the said Minneapolis General Hospital is to carry out the defendant City's said statutory duty in providing for the medical, hospital and nursing care of its poor, aged and indigent."

It appears from the admitted facts that the expense of maintaining said hospital is, and always has been, mainly paid from the tax collected funds of the City, and in the year 1945, which is the year under consideration, the cost of maintaining the hospital, exclusive of the City's investment in its buildings and grounds, was in excess of $1,000,000, but that during said year its income was less than $75,000 from charges made against patients cared for therein and that the balance of said operating costs were paid out of tax collected funds of the said City.

The test to be applied as taught by the Minnesota Supreme Court in determining whether an enterprise is governmental or proprietary is not always clear. Minnesota, however, makes no distinction between mandatory and permissive governmental functions. Mokovich v. School District, 177 Minn. 446, 225 N.W. 292. Indeed, it would seem that no hard and fast rule can be enunciated in light of the various rulings of the Minnesota Supreme Court. See, Minnesota Law Review, Vol. 26, p. 334, et seq. Generally, however, it may be stated that, where a city is engaged exclusively in the discharge of its public duties, it does not act in a private capacity, because under such circumstances it acts in the place of the State and exercises its political authority. Lane v. Minnesota Agricultural Society, 62 Minn. 175, 64 N.W. 382, 29 L.R.A. 708. From the early beginnings of this State, it has been recognized that the duty to take care of the poor and indigent devolves upon certain public officials who act in their representative capacity. Robbins v. Town of Homer, 95 Minn. 201, 103 N.W. 1023. In the maintenance of the Minneapolis General Hospital, there are no attributes of any private business. No profit is derived from its activities, and the maintenance and operation of the hospital relates solely to the public good — for the good of all. The maintenance of health and the prevention of disease and the curbing of pestilence and plague are all within the scope of the activities of the hospital. 4 Dillon, Municipal Corporations, 5th Ed., § 1661, states:

"The power or even duty on the part of a municipal corporation to make provision for the public health and for the care of the sick and destitute, appertains to it in its governmental or its public, and not in its corporate, or as it is sometimes called, private capacity. And therefore where a city, under its charter, and the general law of the State enacted to prevent the spread of contagious diseases, establishes a hospital, it is not responsible to persons injured by reason of the misconduct of its agents and employees therein; * * *."

McQuillin, Municipal Corporations, 2d Ed., Vol. 6, § 2796, p. 1060, makes the following observation:

"That there are some duties the nature of which as governmental is too well settled to be disputed, such as the establishment and maintenance of schools, hospitals, poor houses, fire departments, police departments, jails, workhouses, and police stations, and the like. In fact, duties connected with the preservation of the peace or health, or the prevention of the destruction of property by fire are all governmental duties, without question, and hence there is no municipal liability for torts in connection therewith, or at least not under ordinary circumstances."

The Supreme Court of Minnesota has not ruled on the precise factual situation presented herein. Plaintiff relies, however, on Borwege v. City of Owatonna, 190 Minn. 394, 251 N.W. 915. But the facts in that case are entirely different from the matter now under consideration. There, the city hospital was a revenue producing institution. As the court observed (page 395 of 190 Minn., page 915 of 251 N.W.):

"* * * No nonpay patients were knowingly received. Occasionally, but not often, hospital bills could not be collected from a few of the patients. The money received was placed in a hospital...