In 1921 it was enacted by the Legislature of the State of Idaho as follows:
Sec. 30-3301 (I. C. A.). — "The boards of county commissioners in their respective counties shall have the jurisdiction and power under such limitations and restrictions as are prescribed by law, to provide for the care and maintenance of the indigent sick or otherwise dependent poor of the county; to erect, purchase, lease or otherwise acquire, and to officer and maintain hospitals, hospital grounds and equipment therefor; to levy the necessary tax therefor per capita, not exceeding $2.00 on all persons subject to poll tax in the county, and *Page 127 also an ad valorem tax not exceeding one-fourth of one per cent on all the taxable property of the county, or either such per capita or ad valorem tax, as may be required."
Sec. 30-3302 (I. C. A.). — "The county commissioners may, when they deem the welfare of their respective counties requires it, and when petitioned thereto by a number of resident taxpayers of their respective counties equal to thirty per cent of the number of persons voting for the secretary of the state of Idaho, at the election next preceding the date of such petition, submit to the qualified electors of said county at any general election the proposition of issuing coupon bonds of the county for the purpose of providing such hospital, hospital grounds and equipment, and when authorized thereto by two-thirds vote at such election, shall issue and sell such coupon bonds and use the proceeds therefrom for providing such hospital grounds, buildings and equipment. The board may by a resolution adopted at a regular, or at any special, meeting called for that purpose, call a special election for such purpose, or submit at any general election, the question of issuing negotiable coupon bonds for an amount deemed necessary for the aforesaid purposes.
"The board shall be governed in calling and holding such election and in the issuance and sale of such bonds, and in the providing for the payment of the interest thereon, and for their redemption by the provisions of section 30-1401 to 30-1409, inclusive, of the Idaho Code."
Sec. 30-3303 (I. C. A.). — "Such hospital may suitably provide for, and accept other patients in so far as their facilities will permit and may charge and accept payments from such of their patients as are able to make payments for services rendered and care given. The board of county commissioners may make suitable rules and regulations for the management and operation of such hospital property by a suitable board of control, or otherwise, or for carrying out such hospital uses and purposes under a lease of the same.
"The boards, officers or lessees of such hospital property shall render accounts and reports, to the county commissioners as may be required by the board; and shall render accounts and deliver over any and all moneys received by them for the *Page 128 county, to the county treasurer in such manner as provided by law for the handling of funds of this kind."
Following the enactment of the statute, the qualified electors of respondent county, by a two-thirds vote, voted bonds for the purchase of hospital grounds and the erection, maintenance, equipment and operation of a county hospital, as provided by statute. Since the erection and equipment of the hospital, it has been operated for the profit of the respondent, and, further, the greater proportion of the patients have been pay patients.
April 14, 1933, plaintiff and appellant, Marie Henderson, entered the hospital for an operation for appendicitis, as a pay patient. She was operated on April 15, 1933. Following the operation, her physician prescribed an injection in excess of a quart of normal saline solution, directing that the injection be given by a special nurse in attendance upon appellant. Pursuant to the prescription, and the directions of appellant's physician, the special nurse went to the room in the hospital where medicines were kept for and dispensed to the patients of the respondent, and requested the employee of respondent, in charge of and dispensing medicines, to supply her with the saline solution so prescribed by appellant's physician. The employee, in charge of the said room, and whose duty it was to so dispense medicines, gave appellant's special nurse a container, unlabeled, containing a liquid similar in appearance to normal saline solution, but which actually contained boric acid. Appellant's nurse injected the boric acid into the sides and thighs of the appellant. At the points of injection in her thighs, the flesh sloughed off, causing large sores and leaving scars. And, while in the hospital, she contracted typhoid fever, due, it is alleged, to her diminished powers of resistance, caused by the injection of the boric acid, and the resultant sloughing of flesh, and pain and suffering.
August 2, 1933, appellant presented a claim for damages to the respondent. August 4, 1933, appellant commenced this action against respondent to recover damages. October 14, 1933, respondent rejected appellant's claim. October 31, 1933, appellant filed a supplemental complaint, to which respondent interposed a general demurrer. January 12, 1934, *Page 129 the trial court sustained the general demurrer. April 23, 1934, a judgment of dismissal was entered, from which an appeal was prosecuted to this court.
The complaint is bottomed upon the negligence of the employees of the respondent in the operation of its hospital. Respondent, by its general demurrer, admits the truth of all the material facts alleged in the complaint, as well as all inferences which can be reasonably drawn from such facts. (Blackwell v. Kercheval, 27 Idaho 537, 149 P. 1060; Ashley v.Richard, 32 Idaho 551, 185 P. 1067.) So that but a single question is presented on this appeal: Is the respondent answerable to appellant for the damages she suffered on account of the negligence of respondent's employees, in the operation of its hospital?
It is a case of first impression in this state, and presents a most important question, about which there is much diversity of judicial opinion.
Sovereign irresponsibility for official torts rests upon the doctrine that the "King can do no wrong." That doctrine, entrenched in the early common law of England, and adopted in the United States, notwithstanding our admitted difference from the political organization and theory of government which gave it birth, long stood in the way of the individual seeking redress from nation, state, county or city, for injuries sustained by him through the torts of officers. The unfortunate victim of an official tort-feasor was compelled to bear any loss or damage sustained by reason of the negligent discharge of public duties. However, says Edwin M. Borchard, Hotchkiss Professor of Law, Yale University, in an article in the December, 1934, issue of the American Bar Association Journal, entitled, "State and Municipal Liability in Tort — Proposed Statutory Reform," "The judicial door to community liability was first opened through the instrumentality of the municipal corporation. Partly because of the more limited size of the entity, partly because of the fact of incorporation, partly because of the more commercial nature of some of its enterprises, the halo of sovereignty proved vulnerable to juristic persuasion and theories were found upon *Page 130 which to assert community liability for functions deemed 'proprietary' or 'corporate.' " Many courts have made a distinction between "governmental" and "proprietary" or "corporate" acts, classifying torts and liability on that basis, while also making a distinction between state, county and city liability, resulting in strange and curious anomalies. For example, says Professor Borchard: In Tennessee, if a pedestrian falls into a hole in a road located on the city line, he may recover if he fell in on the city side, but not if he fell in on the county side; in other cases, recovery by one falling into an unguarded excavation depends upon what department of the city was at fault, or the purpose for which the particular improvement was undertaken, whether for parks, water supply or street repair; if one is killed by contact with a defective municipal wire, the widow's recovery may depend upon whether the wire was used for street lighting, or for domestic supply of electricity; if one slips on a defectively lighted stairway in a public building, used in part for income from rents, recovery may depend on the purpose for which one entered the building; a fire apparatus bound to a fire has been deemed "governmental," the same apparatus returning has been classified as "corporate"; the maintenance of a bridge has been deemed "corporate," but as to travelers on the bridge, it was "governmental"; and sprinkling streets has been deemed "governmental," but flushing them, "corporate."
With the steady advance of cities into fields of private enterprise, there has moved apace a growing, responsible public opinion, insisting that the barriers of immunity of the municipality for its torts be lowered, and the barriers are being lowered as the law progresses.
At this point it is worthy of note that the federal government is operating a great ship canal, a railroad in Alaska, and competing with express companies, and, further, that bills to make the federal government responsible for the negligence or wrongful acts or omissions of its officers or employees were introduced in both Houses of the 69th Congress by the respective chairmen of the Claims Committee, and, while the *Page 131 bills did not finally pass, the fact that they were introduced by the respective chairmen of the Claims Committee, and that the Bill introduced in the House was passed by the House, and that the Bill introduced in the Senate was passed in the Senate, clearly indicate that it is but a question of a relatively short time until the immunity of the federal government for the negligence of its officers and employees, resting upon the doctrine that the "King can do no wrong," will be largely removed by act of Congress.
It is also noteworthy, in passing, that the State of Idaho has just taken an important step into the field of private enterprise. The state will at once engage in the business of selling intoxicating liquors, for profit, from state owned and operated "stores." Having thus engaged in private enterprise, legislation may shortly follow expressly lowering the barriers to state liability, and making the state responsible for the negligence or wrongful acts of its officers and employees in the conduct of that enterprise, in harmony with the modern trend of legislation and judicial opinion.
The immunity of state governments for the negligence of their officers and employees also rests upon the early English common law doctrine, as above stated, adopted in the United States, that the "King can do no wrong." And the immunity counties and cities likewise enjoy rests upon that doctrine. As to towns and cities, it is generally held that they possess a double character: The one governmental, legislative, or public; the other, in a sense, proprietary or private. (1 Dillon's Mun. Corp., 5th ed., p. 181; Strickfaden v. Green Creek HighwayDist., 42 Idaho 738, 248 P. 458, 49 A.L.R. 1057.) And in its capacity as a private corporation, a municipality stands on the same footing as would an individual or body of persons upon whom a like special franchise had been conferred. (Strickfadenv. Green Creek Highway Dist., supra.) The advance of counties into fields of private enterprise did not commence as early and has not progressed as rapidly as that of the cities, so that the liability of a county for its torts in private enterprise has not become so well settled. However, it was somewhat recently held by the *Page 132 Supreme Court of Pennsylvania in Bell v. City of Pittsburgh,297 Pa. 185, 146 A. 567, 64 A.L.R. 1542, that a county is liable for the negligence of its employees in operating an elevator in a city and county building, jointly owned, maintained and operated by the county and the city of Pittsburgh, partly for business and partly for governmental purposes, although the person injured was on the way to the office of a governmental department of the city, and that a county which engages in activities not of a governmental nature is liable for the torts of the employees therein. (See, also,Cleveland v. Town of Lancaster et al., 239 A.D. 263,267 N.Y. Supp. 673.)
It is contended by respondent that it is a charitable institution, in that it cares for the indigent sick, and, therefore, that it is not liable for the negligence of its employees. In Geiger v. Simpson Methodist-Episcopal Church,174 Minn. 389, 219 N.W. 463, 62 A.L.R. 716, the Supreme Court of Minnesota, discussing the question of the exemption of charitable institutions from liability for the negligence of their officers and servants, says that "we find a great diversity of reasoning and adjudication in the numerous decisions in various states. One line of cases holds that these organizations are wholly exempt from liability for such negligence. Another line of cases, apparently the greater in number, holds that these organizations are exempt from such liability to persons who are recipients of their charity or service, who are beneficiaries of the work carried on by the organization. Many of these cases hold that the organization is liable to third persons, who are not beneficiaries, and to its own hired servants and employees on the same basis as private individuals and business corporations. Some cases hold that hospitals and colleges are liable to patients or students who pay full consideration for their treatment or tuition. Others hold that the fact that payment is so received does not make them liable. In many cases it is stated that such institutions may be held liable for failure to exercise proper care in the selection of officers and servants, and may be held liable for negligently employing incompetent officers and servants, when *Page 133 injury results therefrom. Different courts give different reasons for the exemption from liability. The following reasons have been given: That the funds of such institutions are held in trust for specific charitable purposes, and should not be diverted to pay damages for negligence; that the better public policy is to hold them exempt; that they serve the same purpose as governmental agencies, and should come under the same rule; that one who accepts benefits by becoming a patient, student or beneficiary of the institution, impliedly consents to hold it exempt or to waive any claim for negligence of its servants; that the doctrine of respondeat superior does not apply to them; that their employees are not, in a legal sense, servants of the organization. Other grounds of exemption have been suggested. All of these reasons have been more or less criticised." Numerous cases involving the question of the tort liability of charitable institutions are collected and analyzed in: Roosen v. Peter Bent Brigham Hospital, 235 Mass. 66,126 N.E. 392, 14 A.L.R. 563, 572; Love v. Nashville Agricultural Normal Institute, 146 Tenn. 550, 243 S.W. 304, 23 A.L.R. 887; Taylor v. Flower Deaconess Home Hospital, 104 Ohio St. 61,135 N.E. 287, 23 A.L.R. 900; Weston v. Hospital of St.Vincent, 131 Va. 587, 107 S.E. 785, 23 A.L.R. 907, 923;Bachman v. Young Women's Christian Assn., 179 Wis. 178,191 N.W. 751, 30 A.L.R. 448, 455; St. Vincent's Hospital v.Stine, 195 Ind. 350, 144 N.E. 537, 33 A.L.R. 1361, 1369;Hamburger v. Cornell Univ., 240 N.Y. 328, 148 N.E. 539, 42 A.L.R. 955; St. Mary's Academy v. Solomen, 77 Colo. 463,238 P. 22, 42 A.L.R. 964; Roberts v. Ohio Valley GeneralHospital, 98 W. Va. 476, 127 S.E. 318, 42 A.L.R. 968;Williams v. Church Home, 223 Ky. 355, 3 S.W.2d 753, 62 A.L.R. 721, 724; Greatrex v. Evangelical Deaconess Hospital,261 Mich. 327, 246 N.W. 137, 86 A.L.R. 487, 491.
It is further contended by respondent that, being a charitable institution, engaged in caring for the indigent sick, the fact that appellant was a pay patient does not subject it to liability for the negligence of its employees. In the well-considered case of Tucker v. Mobile Infirmary Assn.,191 Ala. 572, *Page 134 68 So. 4, L.R.A. 1915D, 1167, where the authorities are fully and carefully reviewed and analyzed, it was held that a pay patient in a hospital conducted without profit, in which indigent patients were treated without cost, the fees exacted from patients able to pay being used to promote the work, could recover damages for an injury done him through the negligence of an attending nurse. And in Mulliner v. EvangelischerDiakonniessenverein of Minnesota Dist. of German EvangelicalSynod of North America, 144 Minn. 392, 175 N.W. 699, where the hospital operated by that institution was founded, and the buildings erected, partly by money donated and partly by money borrowed, the hospital not being operated for profit, but most of its patients being pay patients, it was held that the institution was liable in damages for the death of a pneumonia patient who, while suffering from delirium, was left alone in a second story room, jumped out of an open window and was killed. (See, also, Cohen v. General Hospital Soc. of Connecticut,113 Conn. 188, 154 A. 435.)
Respondent says that "if it should be conceded for the sake of argument that the rules governing the liability of municipal corporations apply to counties, then the liability of the respondent would turn upon the question of whether or not the maintenance of the hospital is a governmental function or a proprietary one. We presume that it will be conceded, without citation of authority, that a municipal corporation is not liable for the torts of its employees when acting in a governmental capacity," and contends "that a county is a governmental agency of the state, and is exempt from suits just as the state is exempt," upon the same principle and for the same reason that exempts the state, citing Strickfaden v. GreenCreek Highway Dist., 42 Idaho 738, 248 P. 456, 49 A.L.R. 1057.
This court, in the Strickfaden case, said that "Counties may be said to be true public corporations. They are local organizations which for the purposes of civil administration are invested with a few functions characteristic of a corporate existence. They are legal political subdivisions of the state, created or superimposed by the sovereign power of the state *Page 135 of its own sovereign will, without any particular solicitation or consent of the people within the territory affected." And that "Cities, towns and villages may be classified as true municipal corporations, voluntarily organized under the general law at the request and with the concurrent consent of their members, and, in addition to the exercise of the functions of self-government, transact matters of a quasi private or business character not governmental in their nature, but rather proprietary, or for the acquisition of private gain for the municipality and its citizens." And, further, "It is well settled that, in the absence of an express statute to that effect, the state is not liable for damages either for nonperformance of its powers or for their improper exercise by those charged with their execution. Counties are generally likewise relieved from liability, for the same reason. They are involuntary subdivisions or arms of the state through which the state operates for convenience in the performance of its functions. In other words, the county is merely an agent of the state, and, since the state cannot be sued without its consent, neither may the agent be sued."
An examination of the Strickfaden case will disclose that the liability of a county for the negligence of its employees while acting in its private and corporate capacity, under a statute authorizing it to so act, was not before the court. However, it will be observed, this court, in saying that counties are not liable, in the absence of express statute, clearly recognized the liability of a county if it acts under the authority of an express statute.
And in support of its contention "that a county is a governmental agency of the state, and is exempt from suits just as the state is exempt," the respondent also cites BoiseDevelopment Co., Ltd., v. Boise City, 30 Idaho 675,167 P. 1032. In that case this court defined governmental functions to be "legal duties imposed by the state upon its creature, and are necessarily mandatory or peremptory," and held, in effect, that in order for a municipality to avail itself of the defense that its tort, committed while acting within the scope of its authority, was the result of the exercise of a governmental *Page 136 function, it must appear that such function was the exercise of a legal duty imposed by the state, which it might not omit with impunity but must perform at its peril, and this court also held that "the mere grant to the city of power or authority to maintain a public park enjoins no absolute duty upon the city to do so, but merely confers the privilege by extending the lawful corporate authority of the city in such case."
We come, then, to the specific question presented here: Does the statute, supra, impose an absolute, mandatory duty upon respondent to construct or operate a hospital?
Section 30-3301, supra, gives boards of county commissioners power to provide for the care of the indigent sick, and to that end "to erect, purchase, lease, or otherwise acquire, and to officer and maintain hospitals, hospital grounds and equipment therefor."
Section 30-3302, supra, provides that boards may, "when they deem the welfare of their respective counties requires it, and when petitioned thereto by a number of resident taxpayers of their respective counties equal to thirty percent of the number of persons voting for the secretary of the state of Idaho, at the election next preceding the date of such petition, submit to the qualified electors of said county at any general election the proposition of issuing coupon bonds of the county for the purpose of providing such hospital. . . . . It is further provided by that section that "the board may (emphasis ours), by a resolution adopted at a regular, or at any special, meeting called for that purpose, call a special election for such purpose, or submit at any general election, the question of issuing negotiable coupon bonds for an amount deemed necessary for the aforesaid purpose."
Section 30-3303, supra, covers the management and operation of the hospital, it being expressly provided that "such hospital may suitably provide for, and accept other patients in so far as their facilities will permit and may charge and accept payments from such of their patients as are able to make payments for services rendered and care given." It is further provided that boards of commissioners may make suitable rules and regulations for the management and operation *Page 137 of the hospital by a suitable board of control, or otherwise.
The statute merely provides that county commissionersshall have power to erect, or to lease, equip and operate a county hospital. A board may itself, in the exercise of the power so conferred upon it by the statute, by means of a resolution, submit the matter of the issuance of hospital bonds to the qualified electors of the county, at a general or special election, or the board may submit the matter upon the petition of a fixed percentage of resident taxpayers. The language of the statute is that "the board may," not that the board must. And whether, in any given case, a hospital shall be constructed and operated pursuant to proceedings instituted by either a petition of taxpayers, or resolution of a board, submitting the matter of the issuance of bonds, depends, not upon any power vested in boards by the statute, or even upon the will of boards, but upon the vote and consent of two-thirds of the qualified electors voting at a bond election. It is clear, therefore, that by the enactment of the statute in question, the legislature did not intend to impose a mandatory duty upon boards of county commissioners to establish and operate county hospitals. The provisions of the statute for the submission of the matter of the issuance of "hospital bonds" to the electors of the counties for the purpose of acquiring, equipping and operating a hospital, as above pointed out, emphatically negative any intention on the part of the legislature to impose a mandatory duty upon county commissioners to provide hospitalization.
The contention that the statute in question here imposes a mandatory duty upon respondent to maintain and operate a hospital is clearly untenable. The record before us shows that respondent voluntarily erected and operates its hospital, with the consent of two-thirds of the taxpayers of Twin Falls County, voting and expressed at a bond election, which constitutes an unusually large number of the most responsible, as well as representative, citizens of a county. Whether any step whatever is taken to establish and operate a hospital, either by petition, or otherwise, is subject to the *Page 138 discretion of boards of county commissioners. A board may act to establish and operate a hospital, or it may refuse to do so, as it deems best. It is not a governmental duty, within the rule announced in Boise Development Co. v. Boise City, supra, because it is not made an absolute, mandatory duty. The mere grant to a county of authority to maintain and operate a hospital enjoins no absolute duty to do so. (Boise DevelopmentCo. v. Boise City, supra.) It must be remembered that respondent admits, by its general demurrer, that it is operating its hospital for profit, and that the greater proportion of its patients are pay patients. We conclude that in supplying hospital care to the appellant, respondent was acting in a proprietary and corporate capacity, and, therefore, is liable to her for the negligence of its hospital employees.
It follows that the judgment of dismissal must be reversed, and it is so ordered. Costs to appellant.
Morgan and Ailshie, JJ., concur.
Givens, C.J., and Budge, J., dissent.
ON REHEARING. (November 2, 1935.)