Hembree v. Hospital Bd. of Morgan County

• Decision Date: 19 September 1974
• Citation: 293 Ala. 160,300 So.2d 823
• Parties: Glenda Sue HEMBREE v. HOSPITAL BOARD OF MORGAN COUNTY et al. SC 766.
• Court: Alabama Supreme Court

Page 823

300 So.2d 823

293 Ala. 160

Glenda Sue HEMBREE v. HOSPITAL BOARD OF MORGAN COUNTY et al.

SC 766.

Supreme Court of Alabama.

Sept. 19, 1974.

Hare, Wynn, Newell & Newton and James J. Thompson, Jr., Birmingham, for appellant.

Calvin & Gilchrist, Decatur, for appellees.

PER CURIAM.

The appellant filed suit against the Hospital Board of Morgan County for injuries received by her while at the hospital which was owned and operated by Morgan County. The defendant-appellee moved for summary judgment, which was granted, and plaintiff appealed.

The only count argued in brief by appellant is a count charging breach of an implied contract.

This case presents the same question presented in Holcomb v. Escambia County Hospital Board, 291 Ala. 114, 278 So.2d 699, but that case went off on the inadequacy of the assignments of error. The same question was presented in Smith v. Houston County Hospital Board, 287 Ala. 705, 255 So.2d 328. In that case, it was held that the duty of the hospital did not arise 'in the terms of the contract, but because the law imposes the duty not to wrongfully injure the plaintiff in doing the act. When that duty is breached, An action in tort only is available, because no express or implied contract is breached.' (Emphasis supplied.) The holding in Smith was supported by Waters v. American Cas. Co. of Reading, Pa., 261 Ala. 252, 73 So.2d 524, and Garig v. East End Memorial Hospital, 279 Ala. 118, 182 So.2d 852.

The action being in tort and not in contract, the defense of governmental immunity was a bar to recovery.

Appellant, in the instant case, argues in brief that if this court should 'base its decision on Smith, appellant has no cause of action.' We were asked to overrule Smith. We affirm the holding in Smith. The minority would overrule Smith. The trial court followed Smith and it results that the judgment of the trial court should be, and is

Affirmed.

MERRILL, COLEMAN, HARWOOD, BLOODWORTH, MADDOX and McCALL, JJ., concur.

HEFLIN, C.J., and FAULKNER and JONES, JJ., dissent.

PER CURIAM.

This case was considered by the entire court in general consultation on Monday, September 9, 1974, and a vote was taken. The vote required the writing of an opinion to conform to the views of the majority. On September 12, appellant filed a motion to dismiss the appeal. This motion was denied because a motion to dismiss After the court has decided a case comes too late. The fact that appellant desired to dismiss the appeal accounts for the writing of this short opinion.

All the Justices concur except JONES, J., who dissents.

JONES, Justice (dissenting).

I respectfully dissent.

The facts: Mrs. Hembree entered the Morgan County Hospital as a paying patient for the purpose of giving birth to a child. There, her seven-month old child was stillborn. After she had recovered from the effects of the anesthetic, she and her husband, along with their minister made preliminary plans for a Christian burial of the stillborn child. Later, an employee of the hospital approached the Hembrees and asked them to sign a 'consent form' which would allow the hospital to dispose of the remains of their stillborn child. They refused to grant such consent but were informed the next morning that the child had been disposed of in the hospital incinerator prior to the request to give their consent for such disposition.

The breach of the contract count alleges in substance that an implied contractual obligation arose out of the hospital-patient relationship of the parties to the effect that the hospital, upon delivery of her stillborn child, would not unlawfully or wrongfully dispose of the remains of her stillborn infant without permission from the infant's parents; that the hospital breached this implied contract by failing to provide the care and attention 'as per the terms of the contract in that (the hospital) caused or allowed the body of said baby to be placed in an incinerator without permission from the infant's parents, thus denying a Christian burial for the said infant, and as a result thereof, plaintiff has suffered grave and irrevocable anxiety and remorse; she suffered heartache and mental anguish and will be caused to suffer same in the future; all to her detriment for which claims.'

Thus, we again have before us a 'county hospital' case wherein the plaintiff, in order to circumvent the sovereign immunity doctrine, is claiming damages for personal injury resulting from a breach of contract, which circumvention had its inception in Paul v. Escambia County Hospital Board, 283 Ala. 488, 218 So.2d 817 (1969).

The identical issue as to such liability was previously before this Court in the case of Holcomb v. Escambia County Hospital Board, 291 Ala. 114, 278 So.2d 699 (1973), wherein on original deliverance a 5 to 4 majority of this Court reversed the lower Court and overruled Smith v. Houston County Hospital Board, 287 Ala. 705, 255 So.2d 328 (1971), by concluding that a personal injury claim for damages would lie for breach of contract irrespective of whether the alleged breach was based on nonperformance or wrongful or negligent performance. An application for rehearing was subsequently granted, however, affirming the lower Court's decision due to an insufficiency of the assignments of error.

The assignments of error presently before us are proper and adequate to invoke our review. The same basic issue in Holcomb ¹ is again before us: Will an action in contract lie where the allegations predicate a breach on wrongful or negligent performance in the absence of an express contract? I would reaffirm our original holding on the merits in Holcomb and hold that the trial Court erred in granting the Motion for Summary Judgment. ²

For the purpose of clarity, it should be noted that the Hospital Board (appellee) makes no contention that the plaintiff-mother is an improper party to maintain the suit; nor is it contended that the Hospital, apart from its claim of governmental immunity, owes no duty generally in the premises. The only ground, here applicable, contained in the Motion for Summary Judgment is:

'3. Defendant by virtue of governmental immunity afforded a public hospital is not liable in implied contract where the breach is not in a failure to perform the implied promise but is in the performance of the implied promise in a negligent, improper or wrongful manner.'

The Hospital Board's forthright position is made abundantly clear by the following statement from its brief:

'(A) reading of Paul v. Escambia County Hospital Board shows that there was no mention (in the pleading) of a failure to use reasonable care but that the breach was simply in the failure to care for the plaintiff and furnish facilities (which was a breach of the implied contract) and this case recognizes at page 821, 218 So.2d that if the hospital had undertaken to perform the contract and done so in a negligent manner then the cause of action against the hospital would not have been in implied contract but would have been in tort and barred by governmental immunity.'

The foregoing analysis of Paul evinces the precise error made in Smith v. Houston County Hospital Board, supra; and, thus the reasons given in Holcomb for overruling Smith are again reviewed. As we stated in Holcomb, any such analysis must begin with Vines v. Crescent Transit Company, 264 Ala. 114, 85 So.2d 436 (1955), the progenitor of Paul. The plaintiff in Vines was injured as a result of the defendant's bus, a public carrier, stopping at an unsafe point beyond the customary stopping place. Count A alleged that the defendant breached the implied contract to safely transport the plaintiff to the customary stopping place by doing the act alleged to be the breach, i.e., by going beyond the customary stopping place to a point of danger. Count B tracked the contract averments of Count A but alleged a negligent breach. Both counts were held 'in assumpsit.'

While both counts in Vines allege a Failure to perform the terms of the implied contract, neither grounds such failure on nonperformance--one count alleging a voluntary breach and one count alleging a negligent breach. In other words, neither count, after setting up the carrier-passenger relationship out of which the implied contract of safe carriage arose, predicates the alleged breach on the fact that defendant did nothing...