Untitled Texas Attorney General Opinion ( 1952 )


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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':;-.
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    -   ..
    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