Laney v. Jefferson County

• Decision Date: 30 October 1947
• Docket Number: 6 Div. 575.
• Citation: 32 So.2d 542,249 Ala. 612
• Parties: LANEY v. JEFFERSON COUNTY.
• Court: Alabama Supreme Court

32 So.2d 542

249 Ala. 612

LANEY v. JEFFERSON COUNTY.

6 Div. 575.

Supreme Court of Alabama

October 30, 1947

W. H. Brantley, Jr., of Birmingham, for appellant.

Harvey Deramus, of Birmingham, for appellee.

LIVINGSTON, Justice.

This is a suit by plaintiff, as administrator, under the homicide statute for the negligent killing of plaintiff's intestate. The suit is against Jefferson County and another acting as agent of the county. Jefferson County alone demurred, and it was sustained, leaving the suit to continue against the agent. Plaintiff took a nonsuit to review the ruling on demurrer, and assigns it as error in respect to each count of the complaint.

Counts 1 and 3 allege that Jefferson County was operating a hospital in Birmingham, known as the Jefferson Hospital, as 'a proprietary institution, charging certain fees or prices for the use of its services and accommodations to members of the public'; counts 2 and 4 alleged that 'Jefferson County owned said hospital and same was conducted and operated at said time as a proprietary institution by the defendants.' Counts 3 and 4 in addition alleged that Jefferson County during the time in question 'did actually solicit business for Jefferson Hospital in competition with privately operated hospitals which were then and there being conducted for profit and private gain, and that in its activity of soliciting business for said Jefferson Hospital and in competing in said hospital business with private hospitals operated for profit, said solicitations for business Jefferson Hospital were made in counties in the State of Alabama other than Jefferson County and beyond and outside the constitutional boundaries of Jefferson County. Plaintiff further avers that said defendants received money, profit, or gain from said operations and business activities in the State of Alabama, but outside and beyond the constitutional boundaries of the county of Jefferson.'

The allegations of fact are admitted by the demurrer for the purpose of determining their legal sufficiency as thus tested, but not the conclusions of the pleader based on these allegations.

While each count alleged that Jefferson County operated the Jefferson Hospital as a proprietary institution, such allegation would not be admitted if the county did not possess the legal authority so to do. A county is a 'governmental auxiliary or agency possessing no power and subjected to no duty not originating from the statute creating it.' Askew v. Hale County, 54 Ala. 639 25 Am.Rep. 730. The question of whether the county is operating a proprietary institution is controlled by statutes which authorize it. Therefore the demurrer does not admit that the county was so engaged for that is a conclusion of law which a demurrer does not admit. We must, and do, look to the statutes as construed by this Court to determine that question.

Notwithstanding the provisions of Title 12, section 3, Code that a county is a body corporate with power to sue and be sued in any court of record, it is nevertheless an arm of the State, and is subject to immunity from suit which the State has, so long as it is engaged in governmental functions as to which no statute authorizes suit. Askew v. Hale County, 54 Ala. 639, 25 Am.Rep. 730; Montgomery Sup't. of Banks v. State, 228 Ala. 296, 153 So. 394; Jones v. Jefferson County, 206 Ala. 13, 89 So. 174; Moore v. Walker County, 236 Ala. 688, 185 So. 175.

But when the operation in question is proprietary in its character, and as such authorized by law, it is liable to suit for torts committed by its agents in the exercise of their duties as such. Jones v. Jefferson County, 206 Ala. 13, 15, 89 So. 174; 20 Corpus Juris Secundum, Counties, § 215 p. 1068, note 15; 101 A.L.R. 1167; Hamilton v. Jefferson County, 209 Ala. 517, 96 So. 628; Barbour County v. Horn, 48 Ala. 649; First National Bank v. Jackson County, 227 Ala. 448, 150 So. 690.

We are therefore controlled by the single inquiry of whether the law justifies the allegation that in operating the Jefferson Hospital, Jefferson County was engaged in a proprietary business.

In appellant's brief it is stated that we should take judicial knowledge of the fact that it was built and operated under the Act of Alabama of July 26, 1935, see Acts 1935, page 195, and that counsel for appellee will admit this to be true. No objection is made to this statement by counsel for appellee, so we will refer to that Act as a part of the authority for Jefferson County to operate this hospital; though it is doubtful if the complaint alleges sufficient facts, taken alone, to justify that conclusion, since it does not allege when the hospital was acquired or built. But our case of Patterson v. Jefferson County, 238 Ala. 442, 191 So. 681, evidently refers to this hospital, and shows that it was to be built after the enactment above mentioned. See, also, Norton v. Lusk, 248 Ala. 110, 26 So.2d 849.

As we pointed out in that case, all laws in relation to the county hospital must be construed as forming one harmonious plan, none of whose provisions must conflict. But if there is an apparent conflict the last enactment must take precedence. So that the Act of 1935, supra, must be construed in pari materia with sections 1200 and 1201, Code of 1923, or Title 22, sections 189, 190, Code of 1940. See Hamilton v. City of Anniston, 248 Ala. 396, 27 So.2d 857. Section 1200, Code of 1923, and section 189, Title 22, Code of 1940, authorizes a county to establish hospitals within the county for the reception of the sick or infirm, or of persons suspected of having infectious or contagious diseases, and may make all needful rules and regulations for the control and management thereof. Section 190, Title 22, Code b in effect prior to the Act of 1935, supra, provides that any county may make appropriations to aid and maintain sick and wounded persons who are unable to provide for themselves in any hospital maintained for sick and wounded.

The Act of 1935, supra, § 3, authorizes counties (and others) '(b) to operate and maintain any undertaking for its own use and for the use of public and private consumers and users within and without the territorial boundaries of the municipality, (c) to prescribe and collect, rates, fees tolls, or charges for the services, facilities, and commodities furnished by such undertaking and in anticipation of the collection of such rates, fees, tolls, or charges to issue revenue anticipation bonds...