Laney v. Jefferson County, 6 Div. 575.

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

32 So.2d 542

249 Ala. 612

LANEY
v.
JEFFERSON COUNTY.

6 Div. 575.

Supreme Court of Alabama

October 30, 1947

[249 Ala. 613] W. H. Brantley, Jr., of Birmingham, for appellant.

Harvey Deramus, of Birmingham, for appellee.

[249 Ala. 614] 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.' [32 So.2d 543] 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.

[249 Ala. 615] We are...