Moore v. Walker County

• Decision Date: 08 December 1938
• Docket Number: 6 Div. 428.
• Citation: 236 Ala. 688,185 So. 175
• Parties: MOORE v. WALKER COUNTY.
• Court: Alabama Supreme Court

185 So. 175

236 Ala. 688

MOORE v. WALKER COUNTY.

6 Div. 428.

Supreme Court of Alabama

December 8, 1938

Appeal from Circuit Court, Walker County; Ernest Lacy, Judge.

Action for damages for wrongful death by Della Moore, as administratrix of the estate of Marvin Moore, deceased against Walker County. From a judgment of nonsuit, plaintiff appeals.

Affirmed.

Curtis & Maddox and Wiggins & Elliott, all of Jasper, for appellant.

Bowers Dixon & Dunn, of Birmingham, for appellee.

KNIGHT Justice.

This is a suit by the plaintiff, Della Moore, as administratrix of the estate of Marvin Moore, deceased, against Walker County under the Homicide Act, Code 1923, § 5696.

The plaintiff stated her case in four counts. To these several counts the defendant-county separately demurred, taking the point, inter alia, that the defendant was a political subdivision of the state, and as such a governmental agency, and not subject to suit for the claimed wrongful death of plaintiff's intestate, under the stated facts in the complaint.

The court sustained defendant's demurrers, and, thereupon, in view of this adverse ruling of the court, the plaintiff was forced to a non-suit, and this appeal.

It is averred in the complaint that the defendant, at the time of the occurrence of the matters complained of, was engaged in operating a hospital at Jasper, Alabama; that the plaintiff's intestate entered this hospital as a paying patient, was operated on for appendicitis, and died while a patient therein. It is also averred that the death of plaintiff's intestate was proximately caused by the negligence of a nurse, a servant or agent of defendant, in negligently permitting or allowing the deceased to fall from his hospital bed while still under the anesthetic, administered when the operation was performed.

We may here observe that, if the defendant county, in the prosecution of its business of operating this hospital, was subject to suit for the negligent act of its agents, servants or officers, resulting in the death of a third person--a patient in the hospital--the complaint is quite sufficient in its averments to fasten liability for such wrongful act on the defendant.

In his statement of the facts of the case, the appellant's counsel says that "Walker County, Alabama, was authorized and empowered by Act of the Legislature (Local Acts 1935, p. 157) to equip, maintain and operate a hospital for the reception of sick, wounded, or persons in need of hospital treatment; that it was authorized to make appropriations to pay for charity patients and it was authorized to receive fees and charges from other patients."

We find by reference to said act that the Legislature of Alabama authorized and empowered Walker County to equip, maintain and operate a county hospital for the reception of the sick, wounded and infirm or persons in need of hospital treatment, and to make appropriation out of the County Treasury "to aid in maintaining and taking care of such sick, wounded or infirm, or persons needing hospitalization who are unable to provide for themselves, and to equip said hospital with standard equipment."

It is further provided in said act that the hospital should be operated "mainly as a charitable institution and not for gain or profit, but may admit patients who are able to pay and to charge admission to said hospital [for] such persons who are able to pay and to fix and collect a reasonable charge therefor." Section 2. All moneys received from fees and charges for such patients who are able to pay, it is provided, shall be applied to the payment of expenses of operating said hospital.

Section 6 of the act provides: "That the County Commission, Board of Revenue, or other governing body of the County of Walker, shall appropriate from the County Treasury of said county for the maintenance and operation of said hospital, such sums of money as are necessary for the successful operation of said hospital, not to exceed $1500.00 per month. Provided that $500.00 additional may be appropriated as an emergency fund monthly."

It will be noted that there is no provision in said act providing for suit against the county for any dereliction of duty on the part of said county, nor for any torts committed by any of its officers, servants or agents in the operation and management of said hospital.

It is well settled in this jurisdiction that while a county has corporate characteristics, it is not, strictly speaking, a municipal corporation as is a city or town. A county is an involuntary political or civil subdivision of the state created to aid in the administration of the government. It is an arm of the state, through which the state operates for convenience in the performance of its governmental function. As pointed out in the case of Askew v. Hale County, 54 Ala. 639, 25 Am.Rep. 730, and reaffirmed in our recent case of Montgomery, Superintendent of Banks, v. State et al., 228 Ala. 296, 153 So. 394, a county "is in its very nature, character and purposes, public, and a governmental agency, or auxiliary, rather than a corporation. Whatever of power it possesses, or whatever of duty it is required to perform, originates in the statute creating it. * * * All the powers with which the county is entrusted, are the powers of the State, and all duties with which they are charged, are the duties of the State. If these were not committed to the county, they must be conferred on some other governmental agency. The character of these powers, so far as...