Ware County v. Cason

• Decision Date: 11 October 1939
• Docket Number: 12820.
• Citation: 5 S.E.2d 339,189 Ga. 78
• Parties: WARE COUNTY v. CASON.
• Court: Georgia Supreme Court

5 S.E.2d 339

189 Ga. 78

WARE COUNTY v. CASON.

No. 12820.

Supreme Court of Georgia

October 11, 1939

J H. Quarterman, of Waycross, and Bryan, Middlebrooks &amp Carter and John A. Dunaway, all of Atlanta, for plaintiff in error.

Mack Barnes & Wright Izlar and Douglas Hereford, all of Waycross, and Dudley Cook, of Atlanta, for defendant in error.

Syllabus Opinion by the Court.

ATKINSON Presiding Justice.

The following questions were propounded by the Court of Appeals as necessary to a proper decision of the case: 'I. Where a county is authorized but not compelled by law to build maintain and operate a hospital for pay and charity patients is it liable for damages and subject to suit for injury to a pay patient due to its negligence in the operation of the hospital in connection with a duty owed to the patient, when the hospital is operated primarily for charitable purposes? 2. Is it liable for damages and subject to suit if the hospital is operated primarily for profit? 3. Does Code, § 23-1502, which provides: 'A county is not liable to suit for any cause of action unless made so by statute,' refer to causes of action arising out of the negligent performance of authorized but not compulsory, ministerial, or proprietary functions, as distinguished from governmental functions?'

1. These questions involve an action ex delicto for damages arising from injury caused by negligence of the county in operating the hospital. The county being 'authorized * * * by law to build, maintain, and operate a hospital,' as stated in the first question, it is to be assumed that the power to do all those things is conferred upon the county as a political division of the State. The Code, § 23-1502, providing that a county is not liable to suit for any cause of action unless made so by statute, includes ex delicto causes of action such as 'causes of action arising out of the negligent performance of authorized but not compulsory, ministerial, or proprietary functions, as distinguished from governmental functions' (in the instant case operating a hospital), whether the hospital be operated 'primarily for charitable purposes,' or operated 'primarily for profit.'

2. There is a statute which, on the basis of distinction between governmental functions of municipal corporations and ministerial acts, inhibits municipal liability for damages flowing from breach of duty in regard to the former, and imposes municipal liability for...