Hernandez v. Yuma County

Decision Date07 March 1962
Docket NumberNo. 7011,7011
Citation369 P.2d 271,91 Ariz. 35
PartiesLupe HERNANDEZ and Mary Hernandez, his wife, Appellants, v. The COUNTY OF YUMA, a body politic, Appellee.
CourtArizona Supreme Court

Nebeker & Nebeker, Yuma, for appellants.

Bill Helm, Yuma County Attorney, Yuma, for appellee.

STRUCKMEYER, Justice.

Mary Hernandez, as plaintiff, brought this action against the County of Yuma for personal injuries sustained while a patient in the county hospital. In her complaint she alleged that the hospital admitted to its facilities paying patients, that she was admitted as a private and paying patient paying the usual and customary charges, and that while in the hospital an employee negligently and carelessly placed a bedpan of boiling water under her from which she sustained severe burns to her body. Yuma County moved to dismiss on the ground that the complaint failed to state a claim for relief. From a judgment of dismissal plaintiff appeals.

Plaintiff urges that as to paying patients the operation of the hospital by Yuma County was in a proprietary capacity. Yuma County relies on the statements of this Court in Lee v. Dunklee, 84 Ariz. 260, 326 P.2d 1117. There, an action was brought against Maricopa County for damages incurred in the operation of its hospital. We said that the imposition of a charge for service on those able to pay is not inconsistent with the exercise of a governmental function. Although the complaint did not allege a paying patient, we adopted a quotation from Elliott v. Lea County, 58 N.M. 147, 267 P.2d 131, that we would not follow those cases holding that in supplying hospital care to paying patients county hospitals were acting in a proprietary capacity. An examination of the Lee case plainly establishes that the question now raised was only indirectly presented since to reach the question an inference had to be drawn from facts not pleaded. Clearly, that portion of Lee v. Dunklee relied upon by appellee was dictum. Dictum is not binding precedent, In re Moore's Estate, 67 Ariz. 65, 190 P.2d 914, and does not control subsequently where the issue is directly presented.

In Lee v. Dunklee this Court refused to recede from the doctrine of governmental immunity, stating that the problem was legislative. We now express doubts concerning that statement. Concededly a court adopting a rule of law has the power to abrogate it. When the reason for the rule no longer exists, the court's responsibility does not terminate because the legislature through indifference or otherwise has not acted. Certainly there can be no justification for the extension of a rule universally criticized as an anachronism without rational basis. It requires but a slight appreciation of the facts to realize that if the individual citizen is left to bear almost all the risk of a defective, negligent, perverse or erroneous administration of the state's functions, an unjust burden will become graver and more frequent as the government's activities are expanded and become more diversified. Borchard, Governmental Liability in Tort, 34 Tale L.J. 1.

The Board of Supervisors of a county has the sole and exclusive authority to provide for the hospitalization and medical care of the indigent sick in the county. A.R.S. § 11-291. This is its mandatory duty. Industrial Commission v. Navajo County, 64 Ariz. 172, 167 P.2d 113. But there is no duty to erect and maintain a hospital. If the county does so, it is not deprived of governmental immunity in the operation by exacting a charge for services from those able to pay. Lee v. Dunklee, supra. The imposition of a charge for care and services against those able to pay is not of itself inconsistent with the exercise of a governmental function, and so has no bearing on the question of the government's immunity from liability for torts. See 25 A.L.R.2d 203, Anno. 229, 230.

The distinction has been drawn that in the operation of a hospital by a governmental ...

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22 cases
  • White v. State
    • United States
    • Wyoming Supreme Court
    • December 19, 1989
    ...P.2d 107, 109 (1963), the Arizona Supreme Court, in abolishing governmental immunity, first initiated in Hernandez v. County of Yuma County, 91 Ariz. 35, 369 P.2d 271, 272 (1962), "It requires but a slight appreciation of the facts to realize that if the individual citizen is left to bear a......
  • Holytz v. City of Milwaukee
    • United States
    • Wisconsin Supreme Court
    • June 5, 1962
    ...that should no longer be applicable in view of the changes in present day charitable hospitals. * * *' In Hernandez v. County of Yuma (1962), 91 Ariz. 35, 369 P.2d 271-272, the Supreme Court of Arizona studied precisely the same problem and 'In Lee v. Dunklee [84 Ariz. 260, 326 P.2d 1117] t......
  • Clouse ex rel. Clouse v. State
    • United States
    • Arizona Supreme Court
    • February 1, 2001
    ...was found to be partly proprietary in nature and therefore not immune to a suit by a paying patient. See Hernandez v. Yuma County, 91 Ariz. 35, 36-37, 369 P.2d 271, 272 (1962). ¶ 76 Salt River Project is actually two different entities, Salt River Project Agricultural Improvement and Power ......
  • Clouse v. State, Dept. of Public Safety
    • United States
    • Arizona Supreme Court
    • October 17, 2000
    ...was found to be partly proprietary in nature and therefore not immune to a suit by a paying patient. See Hernandez v. Yuma County, 91 Ariz. 35, 36-37, 369 P.2d 271, 272 (1962). ¶ 76 Salt River Project is actually two different entities, Salt River Project Agricultural Improvement and Power ......
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