Green v. Hospital Bldg. Authority of City of Bessemer

• Court: Supreme Court of Alabama
• Writing for the Court: ALMON; EMBRY, J., with whom HEFLIN; EMBRY; HEFLIN
• Citation: 294 Ala. 467,318 So.2d 701
• Decision Date: 21 August 1975
• Parties: Annie Mae GREEN v. The HOSPITAL BUILDING AUTHORITY OF the CITY OF BESSEMER, a Public Corporation. SC 733.

Page 701

318 So.2d 701 294 Ala. 467 Annie Mae GREEN
v.
The HOSPITAL BUILDING AUTHORITY OF the CITY OF BESSEMER, a Public Corporation. SC 733. Supreme Court of Alabama. Aug. 21, 1975.

Page 702

[294 Ala. 468] James R. Shaw, Bessemer, for appellant.

White E. Gibson, Jr., Birmingham, for appellee.

ALMON, Justice. ^*

This is an action for personal injuries sustained by appellant, plaintiff below, while she was a non-indigent patient in appellee city hospital. According to appellant's deposition, an attendant nurse employed by the hospital had closed a door on which appellant had been supporting herself with one hand. Appellant's left ring finger was caught between the door and the door frame resulting in a hematoma and a fracture of the distal phalanx.

[294 Ala. 469] The parties stipulated that appellee was, at the time of the alleged incident, engaged in the operation of a hospital under the authority of Act No. 109, Acts of Alabama 1961, p. 134; as codified, Tit. 22, Ch. 6, Art. 5A, Code of Alabama 1940, Recompiled 1958 (1973 Supp.). Further, it was stipulated that no express promises were made by appellee (nor any of its agents or employees) regarding the reasonableness of the care appellant was to receive while a patient at the hospital.

The complaint in three separate counts alleged respectively, breach of implied contract, simple negligence and wanton misconduct on the part of appellee hospital. Count A of that complaint setting forth appellant's implied contract theory alleged in pertinent part:

'. . . Plaintiff was admitted to said hospital as a patient and on said date entered into an implied contract with defendant wherein and whereby, for valuable consideration, the defendant impliedly promised and agreed to nurse and care for the plaintiff for the duration of her confinement and to furnish to plaintiff all special facilities and nursing services and further impliedly promised and agreed to use reasonable care in the performance of said implied promise to furnish to plaintiff all special facilities and nursing service and on said 27th day of March, 1972, pursuant to said contract, the plaintiff entered the said hospital after having agreed to pay all reasonable compensation charges and defendant breached said implied promise to

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use reasonable care in the performance of said implied promise to furnish to plaintiff all special facilities and nursing services, for that, on the 3rd day of April, 1972, a nurse, or a nurses' aid, or another employee of said hospital, employed by defendant and while acting within the line and scope of said employment closes (sic) a door on plaintiff's hand and as a proximate consequence of said breach of said implied contract plaintiff was injured and damaged as follows . . .'

Appellee demurred to all three counts and subsequently moved for summary judgment under ARCP 56. The trial court relying on the holding in Smith v. Houston County Hospital Board, 287 Ala. 705, 255 So.2d 328 (1971), granted appellee's motion for summary judgment. ¹

The question is whether the allegations set out in Count A of the complaint, along with the stipulation and deposition of appellant, made out a cause of action sufficient to resist appellee's motion for summary judgment. More specifically, whether a suit can be maintained, Ex contractu, for breach of an implied promise to use reasonable care in furnishing all special facilities and nursing services by a hospital otherwise statutorily immunized from tort liability. ²

The question of where the demarcation between causes of action sounding in tort and those sounding in contract falls, is by no means a novel one in this State nor amendable to any ready test. See Western Union Telegraph Co. v. Littleton, 169 Ala. 99, 53 So. 97 (1910). The touchstone is said to be found in Wilkinson v. Moseley, 18 Ala. 288 (1850):

'It is often a matter of difficulty to determine whether an action is in form [294 Ala. 470] Ex contractu or Ex delicto. Perhaps the best criterion is this; if the cause of action, as stated in the declaration (complaint), 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. . . . ' 18 Ala. at 190.

We view the narrow question here presented to be whether the law will imply a promise on the part of a hospital to use reasonable care in treating a patient in the absence of an express contract to that effect.

Clearly, an action for negligence would be maintainable under these facts in the absence of statutory immunity. The election of remedies between an action Ex delicto and Ex contractu is permissible where the duties imposed by each (contract-tort) overlap. When a given act is both a breach of a contractual duty (expressed or implied) and a duty imposed by tort law, the plaintiff has the opportunity of electing his remedy. There are many instances in our law where these separate duties are concomitant. It is not the character of the act constituting the breach which necessarily determines the remedy; it is rather the character or nature of the duty or duties breached which determines the remedy or remedies available.

It is perhaps unfortunate that the court has on occasion used the misfeasance-nonfeasance

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concept to distinguish whether a contract or tort action would lie. The mode of breach is not so important as the duty breached. It is possible for both a contractual duty...