It appearing from the allegations of the petition that the defendant hospital authority of Floyd County was chartered under Code § 99-1503 which renders it a public body corporate and politic to exercise public and essential governmental functions for the purpose of providing medical care and hospitalization for the indigent sick and poor as a public, governmental, charitable and non-profit institution, such defendant is not liable in tort for negligent injury to patients notwithstanding the fact that the patient in question here was a paying patient. Accordingly, the trial court properly sustained the ground of general demurrer attacking the petition for this reason.

DECIDED JANUARY 26, 1956 — REHEARING DENIED FEBRUARY 8, 1956.

J. W. Hall and his wife, Helen Hall, filed actions in Floyd Superior Court against the Hospital Authority of Floyd County seeking damages for personal injuries inflicted on Mrs. Hall by its employees in that, while she was in a semi-conscious state as a result of drugs given to alleviate the rigors of childbirth, she was treated in a negligent manner with an electric appliance from which she received painful burns and permanent scars.

It is alleged that the defendant's principal activity is that of a hospital organization; that it maintains rooms and services for the care, treatment and cure of sickness and injuries; that it maintains a maternity ward and delivery room; that plaintiff was a paying patient, and that the defendant was negligent, through its agents, in failing to use care and diligence to prevent the heating lamp from being placed so close to the plaintiff, Mrs. Hall, as to inflict these injuries; in failing to use ordinary care in placing said lamp when it knew or should have known that the lamp, so placed, would have inflicted the injuries complained of; in not removing the lamp but allowing it to remain longer than was reasonably necessary; in, after so placing the lamp, leaving plaintiff unattended, knowing she was in a semi-conscious condition; in leaving plaintiff unattended while in a semi-conscious state, and in improperly following the instructions of plaintiff's physician. General demurrers were interposed on the following grounds: the petition fails to set forth a cause of action; it shows on its face that defendant is a public corporation exercising public and governmental functions and as such is immune from liability for the negligence of its servants; it is immune from suit on any cause of action as a political subdivision of Floyd County; it is an eleemosynary institution not liable for alleged negligence of its agents and servants, no negligence having been alleged in the selection and retention of such servants; the petition is defective in that it seeks a general judgment not restricted to income derived from non-charitable purposes against an eleemosynary institution; the enforcement of a judgment against defendant would deplete charitable trust funds; a judgment against such an institution is against public policy; the petition shows that the persons whose negligence resulted in plaintiff's injuries were acting as agents of the physician rather than of the hospital, and the persons responsible for plaintiff's injuries are not named.

The trial court sustained the general demurrers and dismissed the petition, and the exception is to this judgment.

TOWNSEND, J.

The Hospital Authorities Law (Code Ch. 99-15; Ga. L. 1941, p. 241) under which the defendant hospital authority was incorporated was upheld as against attacks on its constitutionality in DeJarnette v. Hospital Authority of Albany, 195 Ga. 189, 200 ( 23 S.E.2d 716) wherein the following was held: "The purpose of the constitutional provision (Ga. L. 1941, p. 50) and the statute based thereon (Ga. L. 1941, p. 241) was to authorize counties and municipalities to create an organization which could carry out and make more workable the duty which the State owed to its indigent sick; and therefore we should construe both the constitutional amendment of 1941 and the statute most liberally." In Love v. City of Atlanta, 95 Ga. 129, 133 ( 22 S.E. 29) it is stated: "The preservation of the public health is one of the duties that devolves upon the State as a sovereign power. . . If the State delegate to a municipal corporation, either by general law or by particular statute, this power, and impose upon it within its limits the duty of taking such steps and such measures as may be necessary to the preservation of the public health, the municipal corporation likewise, in the discharge of such duty, is in the exercise of a purely governmental function." In Watson v. City of Atlanta, 136 Ga. 370 ( 71 S.E. 664) it was held that the municipal authorities, in operating a non-profit public hospital, were so acting, the court stating: "The principle of non-liability rests upon the broad ground that in the discharge of its purely governmental functions, a corporate body to which has been delegated a portion of the sovereign power, is not liable for torts committed in the discharge of such duties and in the execution of such powers."

It thus appears that the State has a right to delegate to a public corporation the governmental right and duty which it has to protect and preserve the health of its citizens, in this case the indigent sick and poor of Floyd County, and that when it properly does so the corporation maintaining and operating a hospital under such delegated authority, not for profit, is in the exercise of a governmental function and not subject to suit in a tort action. In considering the purposes for which the hospital is set up and maintained it is necessary to examine its charter, and the charter provisions on the question of the character of the institution are controlling. Morton v. Savannah Hospital, 148 Ga. 438 (2) ( 96 S.E. 887). The act of 1941 (Ga. L. 1941, p. 241), created for every county and municipal corporation of the State "a public body corporate and politic" (Code § 99-1508); provides that it shall exercise "public and essential governmental functions" (§ 99-1505); that its projects shall not be constructed or operated for profit (§ 99-1506); that its revenue-anticipation certificates shall be exempt from taxation (§ 99-1508); that it may contract with political subdivisions "for the purpose of providing medical care or hospitalization for the indigent sick and poor" (§ 99-1512); that the chapter is necessary for the welfare of the citizens of the State and "shall be liberally construed to effect the purposes hereof" (§ 99-1519). Thus, the statute creating the authority provides that it must be of a public, governmental, charitable, non-profit character. There is no contention that it is operated otherwise than as provided by law, an allegation that plaintiff was a pay patient not negativing the fact that the authority is a non-profit organization. Watson v. City of Atlanta, supra.

Applying the statutory provisions above set out to the rules of law herein discussed relating to governmental functions, it follows that the defendant hospital authority is performing a governmental function in the course of which it is not liable for the torts of its servants, agents and employees. This being the case, the remaining grounds of demurrer need not be here considered.

The trial court did not err in dismissing the petitions of the plaintiffs on general demurrer.

Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.