*1 623 Oklahoma, ex of rel. State STATE OF
DEPARTMENT PUBLIC
WELFARE, Petitioner,
v. MARTIN,
Floyd Judge, L. District County, State of Oklahoma Johnson, J. Harry Raymond Totoro, J. Oklahoma, Respondent. City, petitioner. Oklahoma for No. 47951. Cate, Norman, Lucas & for respondent. of Oklahoma. Supreme Court 11, 1977. Oct. WILLIAMS, Justice.
This
original
is an
proceeding brought by
Oklahoma,
the State of
rel. Department
ex
Welfare,
of Public
in which this
is
court
original jurisdiction
asked to assume
and
prohibition
issue a
of
against
writ
the re-
spondent judge, preventing him from exer-
cising
jurisdiction
further
over
petition-
the
iner
a
action
certain
now pending in the
District
of
Court
County.
Oklahoma
court,
The
in
action
the trial
No. CJ-74-
3288, is an action
damages
for
mal-
for
practice against four physicians and “The
Hospital
University
Oklahoma,
of the
of
Known as Children’s Memorial Hospital”.
At the
of
alleged
time
the
commission of
malpractice,
the
said hospital
operated
was
under the
of Regents
Board
of the Univer-
sity of Oklahoma.
In
Supp.,
for WILSON, Ray O. d/b/a Wilson by respondents presented to sought be tion Farms, Appellee, operation State, in its of Chil- whether is v. acting gov- is in a Hospital, Memorial drens which case the doc- in capacity, ernmental COMPANY, GIFFORD-HILL & immunity applica- is governmental trine of INC., Appellant. acting proprietary in a ble, is whether it or No. 49835. im- governmental in case capacity, which the applicable not and allegedly is munity Oklahoma, Appeals Court of of regard tort. We to liable in is said be State Division No. 1. presented be as sought so to matter the 26, April 1977. here. irrelevant 21, Rehearing Denied June 1977. the statehood Historically, since 21, Sept. Denied in Oklahoma1. Certiorari 1977. prevailed law has common law is that the common principle of A basic Publication of by Released for Order alleged as (especially to government the Appeals Sept. 22, Court of 1977. torts) is immune to suit. inception the doctrine its Since from prevailed has in sovereign immunity
of Benton2, cases, v. Mills in tort
Oklahoma of hospital the operation that the
we hold Public Welfare is a Department of
by the State, and that the doctrine of the
function immunity applicable. is governmental
of that made has is here State
No contention immunity. its
waived original juris- application to assume
The prohibition writ of petition for
diction and respondent and is granted, therefore
are to and refrain from exercis-
directed desist the jurisdiction petitioner over
ing further in the District
in cause number CJ-74-3288 County. Oklahoma
Court of J., DAVISON,
LAVENDER, V. and C. BARNES, JJ.,
IRWIN, concur. BERRY and
HODGES, J., and SIMMS and DOO- C. JJ.,
LIN, dissent.
SIMMS, Justice, dissenting. majority to the respectfully
I Dissent expressed my in
opinion for the reasons v. in
specially concurring opinion Schrom Okl., Development,
Oklahoma Industrial (1975). P.2d 904
536 part people, pertinent provi- of the remain in in the shall force aid of 12 2 in of 1. O.S. 1971 is § Oklahoma; law, general follows, Statutes of . . as as “The common sion to-wit: law, statutory by and modified constitutional Benton, Dept, 2. Director of of Correc- Mills v. judicial condition and wants decisions and the tions, Okl., (1977); (48 1152). 276 568 P.2d OBJ