Garig v. East End Memorial Hospital

• Decision Date: 10 February 1966
• Docket Number: 6 Div. 210
• Citation: 182 So.2d 852,279 Ala. 118
• Parties: Gladys Maude GARIG v. EAST END MEMORIAL HOSPITAL.
• Court: Alabama Supreme Court

Page 852

182 So.2d 852

279 Ala. 118

Gladys Maude GARIG v. EAST END MEMORIAL HOSPITAL.

6 Div. 210.

Supreme Court of Alabama.

Feb. 10, 1966.

Higgins, Windham, Perdue & Johnson and Sheffield & Kelly, Birmingham, for appellant.

Lange, Simpson, Robinson & Someryille, Birmingham, for appellee.

HARWOOD, Justice.

The two counts (Count 3, as amended, and Count 4) on which issue was eventually joined in the proceedings below claimed damages for personal injuries allegedly received while the plaintiff was a patient in the defendant East End Memorial Hospital.

Count 3, as amended, avers that the plaintiff suffered a break at the neck of the femur bone, and became a patient in defendant's hospital, in which patients were given care and treatment for a reward; that the plaintiff contracted with the defendant for general hospital care and treatment for her injury, and that the plaintiff performed her contract in full by paying all hospital charges and submitted herself as a patient, and was accepted by the defendant as a patient.

The count further avers that on 26 May 1959, the head of the femur was removed and was replaced by a prosthesis in the hospital; that the defendant breached the contract between the plaintiff and defendant by moving or turning plaintiff in her bed in such a rough manner as to proximately cause the prosthesis to come out of its socket, which conduct was not the usual care and treatment furnished by defendant to patients in said hospital.

Count 4 is substantially the same as Count 3, as amended, and avers that the defendant was engaged in the business of operating a hospital, and undertook to furnish general hospital care to the plaintiff and to exercise that degree of care to the plaintiff that hospitals in the same general neighborhood exercise. The count then alleges that the defendant breached its contract with the plaintiff by so negligently moving or turning her as to cause the prosthesis to break from its socket.

Demurrers to the two above counts being overruled, the defendant filed a plea of the general issue and the following additional special pleas to each and every count:

'2. This defendant, for answer to said court (sic), says that the claim alleged therein against it is barred by the statute of limitations of one year.

'3. This defendant, for said count, says that the matters alleged therein as the basis of the plaintiff's cause of action did not occur within one year before the commencement of this action.'

The plaintiff's demurrers to defendant's pleas being overruled, the plaintiff declined to plead further, and moved for a non-suit because of said adverse ruling. The motion for a non-suit being granted, this appeal was perfected.

Although not in Code form, pleas 2 and 3, supra, are sufficient as pleas of the statute of limitations of one year, if the action does not arise from a contract. Section 26, Title 7, Code of Alabama 1940; Ellis v. Black Diamond Coal Mining Company, 268 Ala. 576, 109 So.2d 699.

The injury occurred on 28 May 1959. Suit was filed 10 May 1962, some two years, eleven months and twenty days after the injury.

The propriety of the lower court's ruling in overruling the demurrer to the pleas of the statute of limitations must therefore be determined upon whether the action be deemed to sound in case (tort), with a statute of limitations of one year, or in contract, with a statute of limitations of six years.

It is apparent that the plaintiff, by the language of her complaint, has attempted to bring her cause of action as one ex contractu. However, as stated in 1 C.J.S. Actions § 47, at page 1103:

'In determining the choice of remedy as between an action in contract and an action in tort the source of the duty violated must be ascertained.'

And at Section 46, supra, it is stated:

'* * * if the complaint states a cause of action in tort and it appears that this is the gravamen of the complaint, the nature of the action as ex delicto is not affected or changed by allegations in regard to the existence or breach of a contract, which may be disregarded as surplusage, or treated as matter of inducement, as where the contract serves merely to show the relation between the parties and the existence and nature of the duty out of which the liability in tort arose.'

In our early case of Wilkinson v. Moseley, 18 Ala. 288, 290, this court observed:

'It is often a matter of difficulty to determine whether an action is in form ex contractu or ex delicto. Perhaps the best criterion is this; if the cause of action, as stated in the declaration, arises from a breach of promise, the action is ex contractu; but if the cause of action arises from a breach of duty, growing out of the contract, it is in form, ex delicto and case. For instance, if the declaration allege the hiring of a horse to ride to a certain place, and that the defendant rode him so immoderately that he died, this would be case; for the contract of hiring imposed upon him the duty to ride in reason, or not unreasonably fast; but if the declaration allege the hiring, and that he promised to ride with reasonable speed, but not regarding his promise he rode the horse immoderately, whereby he died, the action may be considered assumpsit.' (Italics ours.)

In Mobile Life Ins. Co. v. Randall, 74 Ala. 170, at 178, the court again sought to clarify the nature of the action arising from an injury resulting in the performance of a contract as follows:

'* * * if the transaction had its origin in a contract, which places the parties in such relation as that, in performing or attempting to perform the service promised, the tort or wrong is committed, then the breach of the contract is not the gravamen of the suit; * * * The wrongful act, outside the letter of the contract, is the gravamen of the complaint; * * * and in all such cases, the remedy is...