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April 29, 1952 Hon. Darwin L. Wilder Opinion No. V-1439 County Attorney Denton County Re: Liability of a city and Denton, Texas county for personal in- juries s,ustainedby em- ployees of their hospital established and operated under Article 44941, V.C.S., when Workmen's Compensa- tion Insurance is not Dear Sir: carried for them. The Board of Managers of the City-County Hospital in Denton County created pursuant to Article 44941, V.C.S., is contemplating cancelling Workmen's Compensation Insurance for its employees. You have requested an opinion concerning the liability of the city and county for damages in cases where an employee of the hospital sustains personal injuries in the course of his employment resulting in dis,abilityor death, in the event the insurance is cancelled. Article 4494i, V.C.S., authorizes any county of this State and any incorporated city,or town with- in such co,untyto jointly establish, erect, equip, maintain and operate a hospital or hospitals for the care and treatment of the sick, infirm, and/or inj,ured";provides for a Board of Managers for the hospital composed of seven members, three to be ap- pointed by the commissioners' court of such county, three to be appointed by the governing board of such city or town, and one,by s,uchcourt and governing body acting jointly; and prescribes their tenure of office and duties. Section 6 thereof provides: "The Commissioners Court of s.uchcounty and the governing body of such city or town may contrib,uteto the funds necessary for such hospital or hospitals in whatever pro- portion may be determined by them by agree- ment." A municipal corporation is a body politic Hon., DBrwin L. Wilder, page 2 (V-1439) and corporate, a public corporation and Political sub- division of the State, even when incorporated under the home rule amendmetitto the Constitution. 30'Tex. Jur. 12-14, Municipal Corporations, Sets. 2, 3. Counties are bodies politic and corporate. Art. 1572, V.C.S. They are political subdivisions which are created by the sovereign will for the pur- pose of discharging the State's duties toward Its ln- habitants, and are'agencies or instrumentalities for the administrationof matters which are of the State. 11 Tex. Jur. 52& Counties, Sec. 2. In Hodge v. Lower Colorado River Authority,
163 S.W.2d 855, 856~ (Tex. Civ. A 1942,'error dlsm. upon agreed motion), the court s,"!d: "It seems now settled that a city is immune from liability for torts of Its agents *and employees when acting In a public or gov- ernmental capacity; but liable where such torts occur In the discharge of some function private or proprietary in character; It Is eauallv well settled. however. thai a county is a governmental agency and'as such is immune from liability for all torts, just as Is the State Itself unless such liability IS created by statuteoi . . .'Immunity'from ‘liability is therefore referable not onlv to thencharacter of the function performed, but also tb the character of the corporation itself, and the purposes for which It was created." .. In City of Wichita Falls v. Roblson 121 '.the court he1 that Tex. 133. 46 S.W.2d ybb '(.1932) the city-was not liable for personal inj,uriessus- tained by an employee, while performing his duties, caused by the negligent acts of its officers or agents while discharging governmental functions of the city. It has long been the law of this State that a county is not liable In damages for personal injuries sustained by Its employees while In the performande of their duties caused by the negligent or tortlous acts ~3':;-. qr.".;,::: 1 r:.,ll'G,:,.;.,-- ' I",; ,,q,~lt:, :,, - .. Hon. Darwin L. Wilder, page 3 b-i4391 of its officers, agents, or servants, unless liability be created by statute, either in express terms or& necessary implication. Bryan v. Liberty County,
299 S.W. 303(Tex. Clv. App. 1927). In City of Dallas v. Smith,
130 Tex. 225,
107 S.W.2d 872(1937). . --.,. the court held that since the State has by numerous statutes given to cities power to make rules and regulations to protect public heal,th, to prevent spread of diseases, and to ~,doall acts nec- essary for promotion of health and the suppression of disease, Including the establishment and maintenance of hospitals, and, in the exercise of these powers, cities perform governmental functions as agencies of the Sta.te, they are not subject to be s'uedfor any act or omission occurring in the exercise of such'power, unless suit _... is authorized by statute. TineLegislature h&s not in Article 44$&i, or any other statute, ei.therin express terms or by nec- essary impiication, provided that when a cit;yand coun- ty jointly establish and maintain a hospital as provided therein, they shall be liable for damages for personal injuries sustained by their employees while in the per- formance of their duties in connection with such hos- pital caused by the negligent or tortious acts of t;heir officers, servants or employees, or required them ,to carry Workmen's Compensation Insurance for such em- ployees. It necessarily follows that they may not be held liable for such damages. SUMMARY An incorporated city and a county in jointly maintaining and operating a hospital under the provisions of Article'44941, V.C.S., Hon. Darwin L. Wilder, page 4 (V-1439) are not liable.fbr~damageaxfor personal injuries sustained by their employees, while in the performance of their duties in connection with such hospital, caused by the negligence of their officers, servants, or employees. Yours very truly, APPROVED: PRICE DANIEL Attorney General J. C. Davis, Jr. County Affairs.,Dlvlsion E. Jacobson Reviewing Assistant Bruce W. Bryant Assistant Charles D. Mathews First Assistant BWB:mh
Document Info
Docket Number: V-1439
Judges: Price Daniel
Filed Date: 7/2/1952
Precedential Status: Precedential
Modified Date: 2/18/2017