Wittmer v. Letts

• Decision Date: 15 January 1957
• Docket Number: No. 49017,49017
• Citation: 80 N.W.2d 561,248 Iowa 648
• Parties: Edith WITTMER, Plaintiff-Appellant, v. C. F. LETTS, Chairman, Augusta Livingston, Harold Miller, Fred Skola, Alta Brown, J. Ernest Wagner and Robert Wiley, as Members of the Board of Trustees of the Washington County, Iowa, County Hospital; Esther Squire, Superintendent of the Washington County, Iowa, County Hospital; Washington County, Iowa, County Hospital; and Washington County, Iowa, Defendants-Appellees.
• Court: Iowa Supreme Court

Page 561

80 N.W.2d 561

248 Iowa 648

Edith WITTMER, Plaintiff-Appellant, v. C. F. LETTS, Chairman, Augusta Livingston, Harold Miller, Fred Skola, Alta Brown, J. Ernest Wagner and Robert Wiley, as Members of the Board of Trustees of the Washington County, Iowa, County Hospital; Esther Squire, Superintendent of the Washington County, Iowa, County Hospital; Washington County, Iowa, County Hospital; and Washington County, Iowa, Defendants-Appellees.

No. 49017.

Supreme Court of Iowa.

Jan. 15, 1957.

Rehearing Denied March 8, 1957.

Ries & Osmundson, D. C. Nolan, Iowa City, for appellant.

Edmund D. Morrison, Jr., G. Gifford Morrison, Washington, for appellees.

HAYS, Justice.

Is a County liable in damages to one who, as a pay patient in a County Hospital, sustains injuries due to the negligence of the Hospital's employees?

Plaintiff's petition alleges the establishment, operation and maintenance of a Hospital by Washington County; that plaintiff was a pay patient therein and sustained injuries by a fall due to excessive wax upon the floor of the hospital. Defendants to the action are the individual Hospital Trustees, the Superintendent thereof, the Washington County Hospital, and Washington County. All defendants, jointly and severally, move to dismiss alleging the petition fails to state a cause of action for numerous reasons therein set forth. The motion was sustained as to each defendant upon all the grounds alleged. Plaintiff allowed judgment of dismissal to be entered and appeals. Underlying all the reasons urged in the motion is the basic contention of governmental immunity.

The record does not state when, or under what chapter of the Code, Chapter 347 or 347A, Code 1950, I.C.A., the hospital was established. However appellant in her brief and argument states that the hospital was established under the provisions of Chapter 347, and we assume such to be the case in the absence of any denial thereof. As a matter of fact we deem this question to be immaterial upon the issue before us.

The question of immunity from tort liability by Cities and incorporated towns, as well as by Counties and school districts has been before this Court upon numerous occasions and involving many factual situations. This, however, appears to be a first, where the functioning of a County Hospital is involved.

Under the ancient common law the Sovereign, generally speaking, could not be sued and this policy has come down to us and is now found in our statutes. 58 I.C.A. Rule 9, R.C.P., and Section 613.8, Code 1950, I.C.A. Thus the State is immune from suit rather than from liability.

Counties are creatures of legislative enactment. They are bodies corporate for civil and political purposes and may sue and be sued. Sections 332.1 and 332.21, Code 1950, I.C.A. It appears that they may be sued for a tort, Board of Com'rs of Wapello County v. Sinnaman, 1 G. Green 413; Little v. Pottawattamie County, 127 Iowa 376, 101 N.W. 752. Thus, unlike the State, immunity, if any, is from liability; an immunity that is court made, not legislative. The basic principle upon which this immunity appears to rest is well stated in Snethen v. Harrison County, 172 Iowa 81, 87, 152 N.W. 12, 13, as follows: 'Counties, unlike cities and incorporated towns, are not, as a rule, held liable for torts committed by them, so long as they are acting within the scope of their governmental powers. They are quasi-municipal corporations engaged in the performance of governmental functions, and are not responsible for the neglect of duties enjoined upon them, in the absence of a statute giving a right of action.' This statement, in substance, first appears in Soper v. Henry County, 26 Iowa 264, 267, and seems to be based upon the statement that 'Counties are involuntary political or civil divisions of the state, * * *'. See, Wilson v. Jefferson County, 13 Iowa 181; Kincaid v. Hardin County, 53 Iowa 430, 5 N.W. 589; Lindley v. Polk County, 84 Iowa 308, 50 N.W. 975; Wood v. Boone County, 153 Iowa 92, 133 N.W. 377, 39 L.R.A., N.S., 168; Post v. Davis County, 196 Iowa 183, 191 N.W. 129, 194 N.W. 245; Shirkey v. Keokuk County, 225 Iowa 1159, 275 N.W. 706, 281 N.W. 837; Perkins v. Palo Alto County, 245 Iowa 310, 60 N.W.2d 562. In Shirkey v. Keokuk County, supra, 225 Iowa at page 1171, 275 N.W. 712, and cited with approval in Bruggeman v. Independent School District, 227 Iowa 661, 665, 289 N.W. 5, 8, it is said, "The absolution from liability of a county * * *, does not rest upon this ground (governmental function); it rests upon the ground that the county * * * is simply a quasi corporation and not clothed with full corporate powers, and it cannot be sued in cases of this character without regard to the question whether or not they are in the exercise of a governmental power or duty." The Shirkey case concerns alleged negligence in the handling of a road grader upon the public highway, which work the opinion holds is a governmental function. The Bruggeman case involves a question relative to the transporting of children to school which is recognized as a governmental function. Perkins v. Palo Alto County, supra, states the rule to be 245 Iowa at page 317, 60 N.W.2d at page 565, "* * * neither the County nor individual members of the Board [of Supervisors] are liable for negligence or for nonfeasance in the exercise of a governmental function." (Italics ours.) This we think is a correct statement of the law, as it has been construed by this court, notwithstanding the statement in the Shirkey case, above quoted. We are not inclined to extend that rule.

Thus the question is whether or not the operation of a hospital by a county constitutes a governmental or proprietary function; if the former, there is immunity; if the latter, there is none.

The difference between a governmental and a proprietary function is well stated in Dillon, Municipal Corporations, 5th Ed., sec. 109, as follows: 'In its governmental or public character the corporation is made, by the state, one of its instruments, or the local depository of...