concurring in part and dissenting in part.
I concur in Division 3 of the majority opinion, and all that is said therein, and the reversal of the grant of judgment notwithstanding the mistrial in favor of defendants Daly and Russell. However, I respectfully dissent to Division 1 as it is my view that Grady failed to carry its burden of proving the defense of charitable immunity.
*520“It has long been the rule in Georgia that ‘an incorporated hospital, primarily maintained as a charitable institution, is not liable for the negligence of its officers and employees, unless it fails to exercise ordinary care in the selection of competent officers and servants, or fails to exercise ordinary care in retaining such officers and employees.’ Morton v. Savannah Hosp., 148 Ga. 438 (96 SE 887) (1918). There is an exception to this general rule: a charitable hospital may be liable for negligence to a paying patient, but the recovery is limited to income derived from non-charitable sources. Id.” Ponder v. Fulton-DeKalb Hosp. Auth., 256 Ga. 833, 834 (1) (353 SE2d 515).
In the case sub judice, the evidence shows that Grady is a nonprofit hospital operated primarily for the medical care and hospitalization of the indigent sick and poor of DeKalb County and Fulton County, Georgia. Other evidence shows that Grady is funded through “charitable” and “non-charitable” sources, i.e., Fulton County, DeKalb County, “patient fees, Medicare, Medicaid, and [private] gifts . . . .” However, there is no- conclusive ' evidence showing whether plaintiff was a “paying patient” or a “charity patient” of the hospital.
“The burden of proof generally lies upon the party who is asserting or affirming a fact and to the existence of whose case or defense the proof of such fact is essential. If a negation or negative affirmation is essential to a party’s case or defense, the proof of such negation or negative affirmation lies on the party so affirming it.” OCGA § 24-4-1. In its answer, Grady asserted charitable immunity as a defense in an attempt to avoid the question of its liability to plaintiff for medical malpractice. Consequently, the burden of proving the defense of charitable immunity was upon Grady. See McCrackin v. McKinney, 52 Ga. App. 519, 520 (2) (183 SE 831); Williamson, Inman & Co. v. Thompson, 53 Ga. App. 821, 826 (9) (187 SE 194); Commercial & Exchange Bank v. McDaniel, 147 Ga. App. 378, 379 (249 SE2d 97). Tc satisfy its burden, Grady was required to show that it is a charitabk institution and that plaintiff was a non-paying patient of the hospital See Ponder v. Fulton-DeKalb Hosp. Auth., 256 Ga. 833, 834 (1) supra.
The only evidence Grady offered in support of its defense o charitable immunity was the testimony of John William Pinkston, Jr. “[t]he secretary-treasurer of the Fulton DeKalb Hospital Authority and executive director of Grady Memorial Hospital.” Pinkston testi fied that patients at Grady are charged according to their ability t< pay; that plaintiff’s mother’s “out-patient” medical expenses were ii excess of $100; that the mother was billed $7 for these expenses am that she paid $4 of this bill. Pinkston further testified that the “in patient” medical expenses “for the mother and the baby” for the de livery and care of plaintiff were $997.52; that “the patient” was no billed for these costs, but that the liability for these medical expense *521“would have been $30 total” for the mother and the baby. There was no explanation as to why Grady did not bill “the patient” for her “inpatient” medical expenses, nor is there evidence showing whether these costs were paid by a secondary source of which the plaintiff was the direct beneficiary. Compare Patterson v. Fulton-DeKalb Hosp. Auth., 192 Ga. App. 167 (384 SE2d 205).
Decided July 14, 1989 Rehearings denied July 28, 1989 Gambrell, Clarke, Anderson & Stolz, Irwin W. Stolz, Jr., Seaton D. Purdom, Wood & Grant, L. Lin Wood, Wayne Grant, for appellant. Alston & Bird, Eugene T. Branch, Bernard S. Taylor, Judson Graves, for appellees.Accordingly, Grady failed to carry its burden of proving without question that plaintiff was a non-paying patient of the hospital. This conclusion is demanded because, upon consideration of Grady’s motion for judgment notwithstanding the mistrial, the evidence must be viewed in a light which most favorably supports plaintiff’s claim. See Findley v. McDaniel, 158 Ga. App. 445 (1) (280 SE2d 858). From this perspective, it is my view that genuine issues of material fact remain as to whether Grady was negligent in providing medical care to plaintiff and whether she was a “paying patient,” entitled to recover based on income derived from Grady’s “non-charitable sources.” See Morton v. Savannah Hosp., 148 Ga. 438 (3), supra.