Thomas v. Board of County Com'rs of Prince George's County

• Decision Date: 07 November 1952
• Docket Number: No. 17,17
• Citation: 200 Md. 554,92 A.2d 452
• Parties: THOMAS et al. v. BOARD OF COUNTY COMMISSIONERS OF PRINCE GEORGE'S COUNTY et al.
• Court: Maryland Court of Appeals

Page 554

200 Md. 554

92 A.2d 452

THOMAS et al. v. BOARD OF COUNTY COMMISSIONERS OF PRINCE GEORGE'S COUNTY et al.

No. 17.

Court of Appeals of Maryland.

Nov. 7, 1952.

Louis B. Arnold, Washington, D. C. (Julian H. Reis and Robert A. Diemer, Washington, D. C., on the brief), for appellants. Vance V. Vaughan and James F. Couch, Jr., Brentwood (Vaughan, Couch & Blackwell, Brentwood, on the brief), for appellees.

Before MARKELL, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

MARKELL, Chief Judge.

This is an appeal from a judgment on demurrer to the declaration in an action by husband and wife for injuries sustained by the wife, while a paying patient in the Prince George's General Hospital, through alleged negligence of an anaesthetist employed by the hospital. The demurrer of the county commissioners was sustained on the ground that in operating the hospital the county commissioners were performing a governmental function and are not liable for negligence in so doing. The result reached by the lower court is the same as that reached by this court, on different but related grounds, in cases of actions for negligence against charitable corporations. Howard v. South Baltimore General Hospital, 191 Md. 617, 62 A.2d 574; Loeffler v. Trustees of Sheppard & Enoch Pratt Hospital, 130 Md. 265, 272-273, 100 A. 301, L.R.A.1917D, 967.

By Chapter 918 of the Acts of 1941 the county commissioners of Prince George's County were authorized to issue bonds to the amount of $400,000 for the purpose of the acquisition of land, the construction of, and the purchase of equipment for, a hospital in that county, and to operate the same. The county commissioners were authorized to accept and receive grants or funds from the United States Government or the State or any instrumentality of either, and to accept bequests, gifts and devises and use them or the proceeds for the maintenance and operation of the hospital, and in the operation of the hospital 'to make such charges for services furnished as in their judgment are necessary and proper.' By Chapter 429 of the Acts of 1947 the county commissioners were authorized to issue bonds to the amount of $800,000 for the purpose of constructing and equipping an addition or additions to the hospital. Chapter 430 of the Acts of 1947 made a slight verbal amendment in the Act of 1941. The alleged negligence for which plaintiffs make claim occurred in November, 1950. The 1950 Budget Act, Chapter 7, Acts of 1950, contained, among appropriations to 'State-Aided Institutions * * * General Hospitals, Counties:' an item 'Prince George's General Hospital $18,509'; and in the Supplemental Budget, an item of $6491; similar items were contained in the 1951 Budget Act, Chapter 296, Acts of 1951, $13,240, and in the 1952 Budget Act, Chapter 15, Acts of 1952, $27,385. Plaintiffs complain that the lower court took judicial notice of alleged facts which should be averred and proved. Regarding these complaints we shall say only that we find nothing in the statutes under which the Prince George's General Hospital was constructed and is operated, or in the State grants of aid, which authorizes the county to operate, and we shall not assume in the absence of explicit averment to that effect, that it has operated, the hospital as a proprietary institution for profit, e. g., for paying patients only.

At the oral argument and in the briefs in the instant case counsel have cited many conflicting decisions in other states on the difference between governmental and proprietary functions of municipal corporations, counties and other public agencies, as affecting the question of liability for negligence in a case such as this. In a recent case the Supreme Court of Florida not only held the hospital liable to a paying patient for negligence, but held unconstitutional (on grounds not altogether clear) a statutory provision exempting the corporation from such liability. Suwannee County Hospital Corporation v. Golden, 56 So.2d 911. Plaintiffs earnestly contend that the numerical weight of authority (as to liability) is in accord with this Florida case. We think the balance is in the opposite direction, especially in jurisdictions which are in accord with the decisions of this court regarding charitable corporations. In some (not all) jurisdictions where the courts are in accord with the Florida case the Maryland doctrine as to charitable corporations has been rejected; the converse is also true. City of Shawnee v. Roush, 101 Okl. 60, 223 [92 A.2d 454] P. 354; Borwege v. City of Owatonna, 190 Minn. 394, 395, 251 N.W. 915. It would serve no useful purpose to count noses or weigh reasoning in other jurisdictions. The decisions of this court during the last twenty years foreclose the question in this court.

In Cox v. Board of County Com'rs of Anne Arundel County, 181 Md. 428, 431, 433, 31 A.2d 179, 181, the county was held not liable, to a child attacked and bitten by a pack of ferocious dogs running at large, for negligence in not abating, by enforcing the local dog law, the nuisance caused by the pack of dogs running at large. The statute provided for license fees to be used (in part) for the payment of damages caused by dogs to livestock or poultry. This court held that the law imposed no liability for damages to children. In the course of its opinion, reviewing the Maryland cases on the distinction between governmental and proprietary function the court said, 'It is difficult to find a good reason for holding that a municipality (using the word in its broad sense) is not exercising the police power for the safety of the public when it is maintaining public highways. However, the rule in this state and in other jurisdictions is that, in such case, the municipality is acting in its corporate capacity, and is liable to suit for its negligence. In discussing this question this court in the case of Mayor and City Council of Baltimore v. State [use of Blueford], 173 Md. 267 , 195 A. 571, 574, said: 'But the two principles one that a municipal corporation is not liable in a civil action for any default or neglect in the performance of a purely governmental...