*1 clearly pertain as corporate child members.27 Acts well the tribal body, are protection. No distinction is entitled to constitutional to all Indian children.28 status based on reservation or envi- made
ronmental circumstance. biological father putative did not parents concerning in his full-blood
confide mother, Creek, His dis- pregnancy. on the fact March 1983. The
covered tradition family
extended illustrated deposition testimony reflecting her ROBERTS, Appellant, Richard grandmother’s baby’s reaction to the birth adoption on March the child question, 6. In answer
on March SOUTH OKLAHOMA CITY HOSPITAL proud your grand- would be to have “You Community Hospi TRUST d/b/a replied “I give my children? She wouldn’t tal Professional Medical Services Cor away.” “Are baby query, you To con- corporation; poration, a and Dr. Thom sidering your baby, this then?” re- Garrett, She Appellees. sponded, “Yes.” The record reveals that No. 60999. grandmother when the of this child learned Supreme Court birth, of Oklahoma. trig- the father’s interest was gered. keeping This with the tradi- July 1986. concept assumption tional automatic Rehearing Sept. Denied responsibility by the closest relatives of the Depending on family. extended tribal affil-
iation, the nearest relatives be either patrilineal
on the matrilineal side. cultures, many day-to-day Indian lodged grand-
care of the children with
parents parents even when are alive. grandfather pater- term also includes
[The great uncles,
nal grand- the term likewise great
mother includes aunts.]29
Section 1915 Act states that cause, good preference adop-
absence of 1)
tion given must be member 2) family,
child’s extended other members tribe, 3)
of the child’s Indian other fami-
lies. This interpreted, section to be when tribe,
possible, to keep the child within the preclude
but it does not placement anof
Indian child family. with non-Indian
However, case, wagons were
circled before up the Indians could send signal, appear
smoke much less on the way
bluff. Much of the Indian of life is a
separate distinguishable culture wor- members,
thy preservation. Individual Nations, 5, supra. regulate foreign 27. See note "To Commerce with States, among several and with Tribes;” Const, Indian 8(3) provides: 28. The U.S. art. I § 20, 21, supra. *2 K. Ber- Berry Berry, P.C. Howard & III, appellant. ry, City, Oklahoma for Fenton, Fenton, Moon Smith Reneau & Reneau, City, appel- by Dale lees.
KAUGER, Justice.
dispositive
appeal
issue on
is wheth-
Community Hospital Trust
er South
d/b/a
Community Hospital
is a valid
purview
of the Political
trust within
Act, O.S.Supp.
Subdivision Tort Claims
152(6), 156(D) (Act).
If South
1979 §§
reality
public Act,
156(D)2
is in
O.S.Supp.1979
re-
brought
trust,
against it must be
quires
claims
given
year
notice to be
within one
156(D)
year
within
pursuant
one
alleged
death,
injury causing
after
trust,
If the
Act.
raising
a statute of limitations defense.
notwithstanding the trust
indenture nam-
hospital’s
motion
summary judg-
City as
ing
of Oklahoma
benefi-
ment
sustained
trial
court based
*3
is the
ciary,
applicable
year
the
statute
two
hospital’s
public
on the
status
aas
trust.
period prescribed by 12 O.S.1981
limitations
appeal, the
On
husband admits that he
1053(A).
case,
of
Under the facts
§
against
did not file a claim
the
hospital
judged by the substance of the transaction
accordance with the
provisions
notice
of the
form,
by
and not
the
we find
the
that
Act; he further admits that the
of
receipt
illusory, masking
conveyance
the reten-
papers
suit
the
first notification that
Community Hospital
South
tion
of con-
hospital
potential
the
received of its
liabili-
entity
purported
the
trol of
which it
ty
the
However,
death
his wife.
the
Therefore,
convey.1
public
because the
argues
hospital
husband
that the
is not a
does
qualify
trust
subdivi-
contemplation
trust within the
sion, the
provisions
notice
the
are
Act
Act,
Political Subdivision Tort Claims
and
inapplicable.
hospital
that because
liability
the
carries
10, 1981, Crystal
February
On
Roberts
insurance the
provision
notification
the
emergency
entered the
room of South Com-
Act is not
rationally
legitimate
related
a
Hospital
munity
(appellee). She com-
interest,
is, therefore,
state
and
unconstitu-
plained
pain
in her arms and in her
we
tional. Because
find that
the South
emergency
physician
chest. The
ex-
room
City Hospital
illusory,
Oklahoma
Trust is
patient
amined her and
admitted her
a
we need not address the appellant’s consti-
hospital
p.m.,
the
10:20
February
at
tutional
on the
attacks
Act.
1981. Because no beds were
available
SOUTH
COMMUNITY
HOSPITAL
hospital’s
unit,
the
coronary care
Mrs. Rob-
TRUST
SOUTH COMMUNI-
D/B/A
placed
regular
erts was
in a
ward. At 4:30
A
TY HOSPITAL IS NOT
POLITI-
a.m.,
11, 1981,
February
Mrs. Roberts was
CAL SUBDIVISION SUBJECT TO
hospital
found dead in her
bed.
THE NOTICE PROVISIONS
51
OF
27, 1982,
July
surviving
On
the
spouse,
156(D)
O.S.Supp.1979
BECAUSE
(appellant/husband)
Richard Roberts
filed
THE
UNDERLYING
PUBLIC
alleging
attending
action
physi-
the
ILLUSORY
TRUST IS
cian
negligent
and the
were
hospi-
care and
treatment
his wife. The
(A)
28, 1982,
tal filed
September
its answer
the
version
the Political
Under
1979
denying the allegations
negligence
Act,
O.S.Supp.
Claims
Subdivision Tort
agency
of an
relationship between the hos-
152(6)
July 1, 1979,
pital
the
attending
effective
physician.
May
On
term, political
included a
hospital amended its
subdivision
answer
asserting
a city,
failure of the
trust
it named
school dis-
husband
comply with
provisions
the notice
or county
beneficiary.3
trict
as its
Dore,
Provided, however,
ing
1. See Newman v.
275 N.Y.
9 N.E.2d
in such
if the
death.
(1937).
person
A.L.R.
See also
death the claim is
has
whose
made
Annot.,
Wife”,
presented
"Gift
Husband as Fraud on
have
notice
would
been suffi-
(1938).
lived,
wrongful
shall not include 19. In re Estate 237 So.2d of (Fla.App.1970). authority,_” a trust 20. Commissioner Int. Rev. v. Chase Manhat 3, supra. 18.See note Bank, (5th Cir.1958). tan 259 F.2d statute, scope ap- specifically escape strips false ture the City legality unavailing. pearance of is power or control. reality, court held not only
The Newman
3. The
connection between the hos-
appearance,
legal rights,
should determine
pital
City
and the
is
agreement
the trust
validity
only
and that
sound test of
provides fiscally
attractive statu-
challenged
whether
is
of a
transfer
is
it
tory funding.
illusory.
applied
real or
The Court
the test
With
exception
general patient
4.
Leonard,
formulated
Leonard
care, there
no
hospi-
is
indication that the
(1902):
Mass.
contribute DOOLIN, SIMMS, C.J., V.C.J., and Hospital’s business conducted JJ., WILSON, concur. OPALA and *7 without consultation with nor LAVENDER, HODGES, it conducted within HARGRAVE any parameters of SUMMERS, JJ., City sponsored policy. The trust inden- dissent. 933, State,
21. Title 25 Corp. § O.S.1981 9 v. 360 936 states: 24. Oil P.2d Gulf (Okla.1961). faith "Good consists an honest intention taking any abstain from unconscientious ad- 1053(A): by provided § 25. It is 12 O.S.1981 another, vantage through even or forms law, together technicalities of with an by absence death is caused "A. When the of one another, of all or information belief of facts which wrongful per- act or omission render may would the transaction unconscien- representative sonal former main- latter, tious.” against therefor or tain an action personal representative if his ceased, he is also de- Davis, 22. Seran 174 Okla. 50 P.2d might former have maintained (1935). 667 latter, action, lived, against he or an had injury representative, his for an for the same Bogart Bogert, 23. G. and G. "The Law of Trusts or The must be com- act omission. action Trustees,” (2nd (2) p. 1984). years.” § 161 ed. within two menced Justice, Act, OPALA, KAUGER, O.S.Supp.1985 with whom Claims 151 et §§ Justice, concurring. joins, seq., immunity and its challenged, claim is the court must meaningful conduct a in- dispositive appeal The issue of this quiry into the defendant’s true status as a hospital entity whether the haled into court wrongful-death private jure as a is a de as well as public defendant de entity facto enterprise disguised business to look like protected that falls within the appendage City’s govern- an to Oklahoma class. public agency. ment or whether it is a true private-hospital This entity pass cannot hospital’s The court concludes that the sta- public muster as enterprise. Although public constituting tus as a may properly “pub- have been created as a meaning subdivision within the of 51 O.S. lic trust” and it superficially meets 152(6)1 “illusory.”2 Although I parameters definitional set forth 51 O.S. join judgment the court’s its well as 152(6), its immunity tort claim must opinion, separately I write to add that no govern- fail. The law’s favored status of a nonpublic enterprise gen- that neither —one liability erates mental may nor receives and is tort defendant not be funds charged by responsibility law with the by legislature conferred either by conducting some may upon entity courts merely mas- business — included, lawfully be however inadvertent- querades public body. as a One who seeks ly, in any legislatively-fashioned class of protection the mantle of afforded qualify entities that governmental im- Act, Governmental Tort Claims munity liability. from tort This is so be- versions, its antecedent must be in a cause, 51, Okl.Const., under Art. no enterprise service both jure de and de “association, corporation, or individual” Art. Okl.Const.4 facto. granted “any rights, priv- exclusive Legislative inclusion of a de non- ileges, or immunities” within this State.3 facto public body into public-entity class statu- Inasmuch as such pro- an inclusion stands torily general shielded from the norms hibited clear command of our funda- law, mental liability provisions whenever a tort also tort defendant in- violates those vokes the shield of Okl.Const.,5 Governmental Tort in Art. prohibit 2. Oklahoma In Art. VIII provided control. been effected tion, Unabridged, p. 2420 tionary than a It of ciary after the dissolution of the succession. Webster’s New International Dic- "8. “Political subdivision’ means: litical § are now 1985 § Now shall not mine] instrumentalities or a trust district d. a c. a b. a school a. a 152(8). Hospitals organized receiving subdivision." The terms of 51 *8 genre more be characterized as limited to no county, 152(8) provide: municipality, excluded from the definition of a repealed. Spes that ”[t]he authority, include City’s whatever, of purposes succession^ is defined as trust where a district, English Language, spes the sole will of the Trustees in interest as a any hospital successionis —a mere is a and all their beneficiary trust is indeed See agencies." anything, beneficiary, provided, this [1961]. trust indenture it hospital act, "public" operating shall have no O.S.Supp.1985 Second Edi- will remain institutions, [Emphasis "illusory." O.S.Supp. trust has hope benefi- hope "po- of 4. As a de 5. The 3. See in death defendant must be treated as a member of answering provided no other class than that of “The special in courts, phasis mine] [1977]. ness, receive require any partition or distribution thereof. benefits of the Trust... income, legal Trustees Regulating pertinent part: judicial proceedings beneficiary Legislature title, Loyal Okl., terms Art. [******] law ... or to hereunder, in this facto claim or the same or like Order residue authorizing: this of and then any part private hospital Constitution, trust, shall be entitled practice shall right 5, Moose, and at the termination of only, the Trust Estate.” [Em- not, thereof as administered 46, Okl.Const., provide or to the Trust or except Lodge 93 A.L.R.3rd 1234 inquiry jurisdiction private legal pass any or to demand or beneficiary 1785 v. Cava claims. solely as otherwise before the tortfeasors wrongful- Estate, local or of, shall * * ...
1085 incorporated actions regulation city town, of limitations of and “either an a by “special” acts. school district or a and procedure By county of court all their institutions, period, agen- instrumentalities or force of this the limitation section cies.” general of prac- norms trial as well as the tice, nonpublic must same for all be legislature The amended that section ef- either for haled answer a 1, defendants like tort or for July fective 1979 as follows: one within an that falls “Political subdivision means: legal category. this identical Since municipality; a. a entity private is de business enter- facto district; b. a school subject to prise, constitutionally it is county; c. a governs adjective same law that which d. city, town, where similarly private all other situated tort- county school district or is a benefi-
feasors.6
(emphasis
ciary”
added)
plaintiff
The
should hence
allowed to
be
Such was the status of the Tort Claims Act
proceed
statutory impedi-
from all the
free
on the
plaintiff’s
date
wife died.1
public agencies.7
ments that shield
summary judg-
Defendant’s motion for
supported by
ment was
an affidavit that
Justice,
SUMMERS,
dissenting:
City Hospital
South Oklahoma
Trust
11,
plaintiff’s
February
wife died on
d/b/a South
was a
1981, at which time the Oklahoma Political public
in
trust created
accordance with 60
had
Subdivision Tort Claims Act
been in
176-180,
its
and that
benefi-
years.
effect
two
half
some
and one
ciary
City.
of
Oklahoma
At-
Among
periods
the short
of limitations es-
plaintiff’s
copy
Page
tached to
brief
of
is a
inception
tablished
at
the Act
was
Indenture, providing
part
10 of the
in
Trust
imposing
requirement
one
notice to
as follows:
political
subdivision
claims for
Beneficiary
“Article
Trust
VIII
wrongful
within
after
year
death
one
(1)
beneficiary
Trust shall
alleged injury resulting in
51
death.
O.S.
Oklahoma,
City,
Oklahoma
156(D).
1978 §
corporation,
municipal
pursu-
and
152(6)
60,
1961,
originally
Act in 51 O.S.1978
ant to Title
Oklahoma Statutes
180,
inclusive,
defined
subdivisions as
Sections
176
both
supra
Section furtherance and proper authorized and function “Provided, from that no funds said bene- purpose municipality_” ... ficiary derived from sources other than trust property, operation or the court, however, pointed has not out thereof, charged expend- shall be with or single invalidity way South Com- trust, for the except ed execution said munity Hospital Trust was established by express legislative action au- conducted. The thority beneficiary....” doing created and under 60 O.S. business although So the Act forbid city doesn’t 176-180; no at least there is evi- §§ lawfully providing funds for the contrary. majority opin- dence to the trust, require nowhere does the Act it. burdening appears ion it with the to be Conclusion Hospital’s obligations municipal hospital #2. “The busi- created 30-101, ness is conducted without consultation under 11 O.S.1981 which it is not. the City with nor is it conducted within No, Is it subdivision? any parameters City sponsored policy. now, legislative because of the amendment The trust specifically strips indenture politi effective October 1985. Was it a City of any power or control.” February cal subdivision on provides part: 178D Section Yes, date of if we are death? to believe “Meetings legislature. says “po of all If the statute trustees trusts open “public shall be litical to the same subdivision” is trust where required by extent as is a city beneficiary” obliged law for is a I am other Tulsa, agree. boards and commissions. Such Oliver v.
1087 said, (Okl.1982), quoting from Min 607 we (Okl.Cr.1955), State, P.2d 772
nix v. Joyce Amos J. FLEMING and H. province legisla- “It is within the Fleming, Appellees, appearing in body to define words tive acts, passed legislative and where act definition, legislature embodies a by the The BAPTIST GENERAL CONVENTION (Id 611) binding the courts.” at it is on Baptist OF OKLAHOMA Miami d/b/a disregard at to thus not leisure
We are Hospital, al., Appellant. et placed legisla- in a statute definition No. 54711. ture. (Nos. 54712, 54856 and 54857 Dore, is the doctrine of Nor Newman v. consolidated.) 371, (1937) N.E.2d 275 N.Y. well case placed here. The of a sham transfer Supreme Court of Oklahoma. to interest under communi- defeat wife’s ty property applicable hardly laws to June 1987. serving compli- in full Rehearing Sept. Denied ance the statutes under which it with established. disagreement
My special with the concur-
ring I opinion is that find no offense done
to Article Section 51 of Oklahoma provision
Constitution. That forbids
legislature granting any “exclusive
rights, privileges, or (empha- immunities.” mine). It, along
sis with Article Section designed prevent granting to rights privileges
exclusive and the cre- monopolies. Sales,
ation of parte Ex (1925). 233 P.
Okl. It is intended
preserve equality between citizens who are
similarly Kimery situated. v. Public Ser (Okl.1980). of Okla.,
vice Co. P.2d 1066 City Hospital has Trust granted
been no immunity; exclusive enjoyed by
succeeds the identical status all trusts “where a district is a benefi-
ciary.” I
Nor do find constitutionally prohib- “special”
ited legislation involved
case.
I would affirm the trial court’s order
dismissing the give action for failure
statutorily required notice.
I am authorized state that HODGES, LAVENDER,
Justices join this
HARGRAVE dissent. 29.See notes