Henderson v. Twin Falls County, 6158

Citation50 P.2d 597,56 Idaho 124
Decision Date27 April 1935
Docket Number6158
PartiesMARIE HENDERSON, Appellant, v. TWIN FALLS COUNTY, Respondent
CourtUnited States State Supreme Court of Idaho

COUNTIES-COUNTY HOSPITALS-TORTS-LIABILITY OF COUNTY-PLEADING-DEMURRER-ADMISSIONS.

1. Defendant, by general demurrer, admitted truth of all material facts alleged in complaint as well as all inferences which could reasonably be drawn therefrom.

2. In its capacity as a private corporation, a municipality stands on the same footing as regards liability for negligence as would an individual or body of persons having like special franchise.

3. Statute providing that county commissioners "shall have.... power" to erect or to lease, equip and operate county hospital does not impose mandatory duty on commissioners to establish and operate county hospitals especially where it provides for submission of matter of issuing bonds to electors (I. C. A., secs. 30-3301 to 30-3303).

4. Where county board had no mandatory duty to establish county hospital, but county voluntarily erected and operated hospital which accepted pay for services, where patients were able to pay, county, in supplying hospital care to paying patient, acted in proprietary and corporate capacity, and was liable for negligence of hospital employees (I. C. A., secs 30-3301 to 30-3303).

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. Wm. A. Babcock, Judge.

Action for damages for personal injuries. Judgment for defendant. Reversed.

Reversed. Costs to appellant.

Chapman & Chapman, for Appellant.

A county in the state of Idaho is both a body politic and a body corporate, having all powers expressly conferred upon it by statute, as well as those necessarily implied from the powers conferred. It thus has governmental politic powers as an arm of the state conferred upon it, as well as corporate private or quasi-public powers, such as a municipal corporation. (Sec. 30-501, I. C. A. 1932; sec. 30-502, I. C. A. 1932; sec. 30-503, I. C. A. 1932; sec. 30-504, I. C. A. 1932; sec. 30-506, I. C. A. 1932; sec. 30-719, I. C. A. 1932; Brady v. Place, 41 Idaho 747, 242 P. 314, 243 P. 654.)

The construction and maintenance of a county hospital is not a duty imposed by statute, and is not a mandatory or peremptory function of the Board of County Commissioners. Its construction is discretionary. The care of pay patients in a county hospital is not a duty imposed by statute, and is not a mandatory or peremptory function of the Board of County Commissioners, but is a matter committed solely to the discretion of the county commissioners. The mere grant to a county of power to acquire and operate a hospital and to provide suitable care therein for pay patients is a private as opposed to a governmental function. (Boise Development Co. v. Boise City, 30 Idaho 675, 167 P. 1032; sec. 30-3301, I. C. A. 1932; sec. 30-3302, I. C. A. 1932; sec. 30-3303, I. C. A. 1932; Lambing v. Board of County Commissioners, 45 Idaho 468, 263 P. 992.)

A county, while not liable for torts resulting from either the performance or omission of the discharge of its public and governmental functions, is liable where it is acting not as a governmental agency, but as a private corporation, or wherein the performance of special duties is imposed upon it with its consent or voluntarily assumed by it. (15 C. J. 569; 19 R. C. L. 1109; Jones v. Jefferson County, 206 Ala. 13, 89 So. 174; Hannon v. St. Louis County, 62 Mo. 313; Barfield v. Macon County, 109 Ga. 386, 34 S.E. 596.)

J. W. Porter and O. W. Witham, for Respondent.

In Idaho a county is not liable under any circumstances for the negligence of its officers or employees. (Lewiston Orchards Irr. Dist. v. Gilmore, 53 Idaho 377, 23 P.2d 720; Gorman v. County Commissioners, 1 Idaho 655; Worden v. Witt, 4 Idaho 404, 39 P. 1114, 95 Am. St. 70; Davis v. Ada County, 5 Idaho 126, 47 P. 93, 95 Am. St. 166; Davis v. State, 30 Idaho 137, 163 P. 373.)

If the rule making a distinction between governmental and proprietary functions of municipal corporations, as to liability for torts, were applicable to a county, the maintenance of the county hospital is a governmental function. (Chap. 33, title 30, I. C. A.; sec. 30-3301, I. C. A.; sec. 30-3303, I. C.A.; sec. 30-2904, I. C. A.; sec. 30-2906, I. C. A.; Boise Development Co., Ltd., v. Boise City, 30 Idaho 675, 167 P. 1032; Strickfaden v. Greencreek Highway Dist., 42 Idaho 738, 248 P. 456, 49 A. L. R. 1057.)

The acceptance of pay patients does not alter the rule of nonliability of counties for torts of county hospital employees. (Browder v. City of Henderson, 182 Ky. 771, 207 S.W. 479; McDonald v. Massachusetts General Hospital, 120 Mass. 432, 21 Am. Rep. 529.)

HOLDEN, J., AILSHIE, J. Morgan, Ailshie, JJ., and Holden, JJ., concurring. Budge, J., Givens, C. J., dissenting.

OPINION

HOLDEN, J.

In 1921 it was enacted by the Legislature of the State of Idaho as follows:

Sec. 30-3301 (I. C. A.).--"The boards of county commissioners in their respective counties shall have the jurisdiction and power under such limitations and restrictions as are prescribed by law, to provide for the care and maintenance of the indigent sick or otherwise dependent poor of the county; to erect, purchase, lease or otherwise acquire, and to officer and maintain hospitals, hospital grounds and equipment therefor; to levy the necessary tax therefor per capita, not exceeding $ 2.00 on all persons subject to poll tax in the county, and also an ad valorem tax not exceeding one-fourth of one percent on all the taxable property of the county, or either such per capita or ad valorem tax, as may be required."

Sec. 30-3302 (I. C. A.).--"The county commissioners may, when they deem the welfare of their respective counties requires it, and when petitioned thereto by a number of resident taxpayers of their respective counties equal to thirty per cent of the number of persons voting for the secretary of the state of Idaho, at the election next preceding the date of such petition, submit to the qualified electors of said county at any general election the proposition of issuing coupon bonds of the county for the purpose of providing such hospital, hospital grounds and equipment, and when authorized thereto by two-thirds vote at such election, shall issue and sell such coupon bonds and use the proceeds therefrom for providing such hospital grounds, buildings and equipment. The board may by a resolution adopted at a regular, or at any special, meeting called for that purpose, call a special election for such purpose, or submit at any general election, the question of issuing negotiable coupon bonds for an amount deemed necessary for the aforesaid purposes.

"The board shall be governed in calling and holding such election and in the issuance and sale of such bonds, and in the providing for the payment of the interest thereon, and for their redemption by the provisions of section 30-1401 to 30-1409, inclusive, of the Idaho Code."

Sec. 30-3303 (I. C. A.).--"Such hospital may suitably provide for, and accept other patients in so far as their facilities will permit and may charge and accept payments from such of their patients as are able to make payments for services rendered and care given. The board of county commissioners may make suitable rules and regulations for the management and operation of such hospital property by a suitable board of control, or otherwise, or for carrying out such hospital uses and purposes under a lease of the same.

"The boards, officers or lessees of such hospital property shall render accounts and reports, to the county commissioners as may be required by the board; and shall render accounts and deliver over any and all moneys received by them for the county, to the county treasurer in such manner as provided by law for the handling of funds of this kind."

Following the enactment of the statute, the qualified electors of respondent county, by a two-thirds vote, voted bonds for the purchase of hospital grounds and the erection, maintenance, equipment and operation of a county hospital, as provided by statute. Since the erection and equipment of the hospital, it has been operated for the profit of the respondent, and, further, the greater proportion of the patients have been pay patients.

April 14, 1933, plaintiff and appellant, Marie Henderson, entered the hospital for an operation for appendicitis, as a pay patient. She was operated on April 15, 1933. Following the operation, her physician prescribed an injection in excess of a quart of normal saline solution, directing that the injection be given by a special nurse in attendance upon appellant. Pursuant to the prescription, and the directions of appellant's physician, the special nurse went to the room in the hospital where medicines were kept for and dispensed to the patients of the respondent, and requested the employee of respondent, in charge of and dispensing medicines, to supply her with the saline solution so prescribed by appellant's physician. The employee, in charge of the said room, and whose duty it was to so dispense medicines, gave appellant's special nurse a container, unlabeled, containing a liquid similar in appearance to normal saline solution, but which actually contained boric acid. Appellant's nurse injected the boric acid into the sides and thighs of the appellant. At the points of injection in her thighs, the flesh sloughed off, causing large sores and leaving scars. And, while in the hospital, she contracted typhoid fever, due, it is alleged, to her diminished powers of resistance, caused by the injection of the boric acid, and the resultant sloughing of flesh, and pain and suffering.

August 2, 1933, appellant presented a claim for damages to the respondent....

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