Berry v. Druid City Hospital Bd.

CourtSupreme Court of Alabama
Citation333 So.2d 796
PartiesRubye Carter BERRY v. DRUID CITY HOSPITAL BOARD, etc. SC 1196.
Decision Date21 May 1976

Page 796

333 So.2d 796
Rubye Carter BERRY
SC 1196.
Supreme Court of Alabama.
May 21, 1976.
Rehearing Denied and Interest Allowed July 2, 1976.

Page 798

Callahan & Nichols, Tuscaloosa, Hogan, Smith & Alspaugh, Birmingham, for appellant.

Roberts & Davidson, Tuscaloosa, for appellee.

SHORES, Justice.

This is a suit against a hospital, protected from tort liability be governmental immunity (granted by statute), charging it with breach of implied contract. A verdict for $45,000 was returned against the hospital. After the verdict was returned, the hospital filed a motion for judgment notwithstanding the verdict and motion for a new trial. In support of these motions, it called to the trial court's attention the case of Hembree v. Hospital Board of Morgan County, 293 Ala. 160, 300 So.2d 823 (1974). Relying upon this case and Smith v. Houston County Hospital Board, 287 Ala. 705, 255 So.2d 328 (1971), the court granted the motion for judgment notwithstanding the verdict.

The plaintiff, Rubye Carter Berry, was taken by ambulance to the hospital after fainting while sitting in her car at Gerald's Garage in Tuscaloosa. She was transferred from the ambulance cot to a treatment table and a nurse was informed that the patient had 'blacked out.' The plaintiff testified that she was not strapped on the table; and when she raised up to look at her watch, she fainted again. When she regained consciousness, she was in a different room and experienced severe pain from her shoulder and pelvic area. Medical testimony revealed that she had suffered fractures in both areas and that she had a 75% Permanent disability to her shoulder. Throughout the trial, witnesses for the hospital denied knowledge of an alleged fall in the emergency room.

The plaintiff submits:

(1) The complaint and facts of the case are within the borders of the rule of Paul v. Escambia County Hospital Board, 283 Ala. 488, 218 So.2d 817 (1969);

(2) governmental immunity will not bar an action based upon the rule of Paul;

(3) the holding of Paul has been distinguished and narrowed but not overruled; and, that

(4) the decisions of Hembree v. Hospital Board of Morgan County, supra, and Smith v. Houston County Hospital Board, supra, unduly limited the earlier holdings of Paul and Vines v. Crescent Transit Company, 264 Ala. 114, 85 So.2d 436 (1955).

Perhaps no other area of Alabama law has produced as much confusion in recent times as the governmental hospital cases involving breach of implied contract. A common thread running through the line of cases on this point is difficult, if not impossible, to find. A perusal of these cases and a review of basic contract law will be necessary to determine the state of the law in this area.

A re-examination of basic contract law may be helpful in clearing up the confusion which has resulted perhaps because of careless use of legal terms and definitions in our opinions. Before we reach the question of whether an implied contract has been breached, we should first determine what an implied contract is. There is much discussion in our hospital cases about contracts implied in law or quasi or constructive contracts. The use of these terms is unfortunate and confusing since a contract implied by law or quasi contract is not a contract at all. 'A quasi contractual obligation is one that is created by the law for reasons of justice, without any expression of assent and sometimes even against a clear expression of dissent. . . .' 1 A. Corbin, Corbin on Contracts, § 19, at 46 (1963). The purpose of imposing these contractual obligations is to bring about justice. 1 S. Williston, A Treatise on the Law of Contracts, § 3A (3d ed. 1957). Moreover, these obligations are usually based on unjust enrichment or benefit; the defendant may be required to

Page 799

surrender the benefit he has received or even restore the plaintiff to a former status. Williston, supra, at 15. '. . . As the law may impose any obligations that justice requires, the only limit in the last analysis to the category of quasi contracts is that the obligation in question more closely resemble those created by contract than those created by tort. . . .' Williston, supra, at 13. The duty of a hospital to use due care in the treatment of its patients is an obligation created by law; and the breach of that duty is a failure to observe a reasonable standard of due care under the circumstances which gives rise to the tort action. There exists a Duty implied by law, as opposed to a Contract implied by law, to exercise due care, the breach of which gives rise to an action in tort. We again affirm those decisions which refuse to imply a contract in law to impose a duty upon a hospital to use due care in the treatment of its patients. Green v. The Hospital Building Authority of the City of Bessemer, 294 Ala. 467, 318 So.2d 701 (1975); Garig v. East End Memorial Hospital, 279 Ala. 118, 182 So.2d 852 (1966).

It is evident, therefore, that when we speak of implied contracts within the confines of Paul v. Escambia County Hospital Board, supra, we are referring to contracts implied in fact. That is, contracts which arise by virtue of the acts or conduct of the parties rather than by express agreement. Adams v. Republic Steel Corp., 254 Ala. 620, 49 So.2d 214 (1950). The only difference between express contracts and implied contracts is the method of expressing mutual assent. It becomes obvious, therefore, that '. . . an action based on a contract implied in fact could be maintainable against a city (governmental) hospital.' Green, supra, 318 So.2d at 704.

Our line of 'hospital cases' really begins with Paul v. Escambia County Hospital Board, supra. In that case, the hospital accepted the plaintiff as a maternity patient and she gave birth to a child unattended. As a result, the child was strangled to death by the umbilical cord. We observed that the complaint '. . . clearly state(d) that the cause of action sued on is failure of the defendant to perform its (implied) promise to attend the plaintiff in the delivery of her child and to make available to the plaintiff the facilities for childbirth which were available at the defendant hospital, all after having undertaken to do so by accepting the plaintiff as a maternity patient. . . .' (283 Ala. at 492, 218 So.2d at 821). We then noted that the complaint was essentially the same as the one filed in Vines v. Crescent Transit Company, supra. The opinion quoted from Vines:

"It will be observed that a negligent Failure to perform a contract, express or implied * * * is but a breach of contract. But if in performing it, it is alleged that the defendant negligently caused personal injury or property damage to plaintiff, the remedy is in tort, for it is not the breach of a contract express or implied, but the breach of an implied (by law) duty to exercise due care not to injure plaintiff or her property which is the gravamen of the action." (283 Ala. at 492, 218 So.2d at 821)

We concluded in Paul, as quoted in Holcomb v. Escambia County Hospital Board, 291 Ala. 114, 123, 278 So.2d 699, 707 (1973):

". . . Had the defendant in this case undertaken to perform the contract by administering to the plaintiff in the delivery of her child and performed its duty in a negligent manner, thereby causing the plaintiff injury, then the plaintiff's cause of action based upon such negligence would have been barred under the doctrine of governmental immunity."

From these statements, unfortunately a distinction between misfeasance

Page 800

and nonfeasance was made in some cases to deny a plaintiff an action in contract if any attempt at performance was made by the defendant. Smith v. Houston County Hospital Board, supra. This concept was devised quite early as a line of demarcation between tort and contract, or more accurately, between tort and breach of contract. W. Prosser, Handbook of the Law of Torts, § 92, at 614, and N. 14 (4th ed. 1971). Despite considerable criticism of this approach, Dean Prosser finds the classification serves a valid purpose as have the courts in this country in general. Prosser at 614. Indeed, we have consistently applied the rule in this state to determine whether actions in tort were available to the plaintiff where he clearly had a cause of action for breach of contract. Old Southern Life Insurance Company v. Woodall, 10 ABR 441 (1976), 295 Ala. 235, 326 So.2d 726; C & C Products, Inc. v. Premier Industrial Corporation, 290 Ala. 179, 275 So.2d 124 (1972). In these cases, the misfeasance-nonfeasance dichotomy was used to determine whether the plaintiff had stated a tort claim. That he had a contract action was conceded. The Smith opinion found the antithesis of this rule to be that the dichotomy must be used to determine whether the plaintiff could state a contract claim when he clearly had a tort claim. Thus, in Smith, we turned the rule over to determine the availability of a contract action, exclusively equating nonfeasance with contract and misfeasance with tort. This restriction is unnecessarily limiting and, to that extent, we believe Smith was wrongfully decided. It has long been the rule in this state, and most others, that an action for breach of contract can arise by virtue of misfeasance. In Tennessee Coal, Iron & Railroad Co. v. Sizemore, 258 Ala. 344, 349, 62 So.2d 459 (1952), this court held:

'A complaint for the breach of a contract in not performing the obligation there expressed, or Not doing it in the way specified, is not in tort . . .' (Emphasis added).

See also the dissenting opinion of Justice Jones in Hembree, supra.

An example in the extreme may be beneficial. Assume that a patient is admitted to a hospital's maternity ward. Assume further that, due to a scheduling error, a doctor was not available when the patient was ready for delivery and an unqualified hospital employee made an effort to deliver the child, which resulted in injury to the...

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