Holbrook v. City of Sarasota

• Decision Date: 02 May 1952
• Citation: 58 So.2d 862
• Parties: HOLBROOK et ux. v. CITY OF SARASOTA.
• Court: Florida Supreme Court

Page 862

58 So.2d 862

HOLBROOK et ux. v. CITY OF SARASOTA.

Supreme Court of Florida, Special Division B.

May 2, 1952.

Rehearing Denied June 3, 1952.

Edwin J. Kennedy and Lynn Silvertooth, Sarasota, for appellants.

Williams, Dart & Bell, Sarasota, for appellee.

MATHEWS, Justice.

The declaration in this suit contained 8 counts. The first count of the declaration is as follows:

'On or about August 25, 1949, and continuously since said date, and for a long time prior thereto, the defendant operated for profit, within its corporate limits, for the treatment and care of persons requiring medical attention and surgery, an institution known as the Sarasota Municipal Hospital.'

'On or about August 25th, 1949, the plaintiff, Mae L. Holbrook, entered said hospital for the removal of a catarac from her eye, the defendant, through its servants and employees, who were then and there acting within the scope of their employment, then and there orally agreeing, in consideration of a pecuniary compensation to be paid therefore to said hospital by the plaintiff Mae L. Holbrook's husband, to furnish the plaintiff with nursing care and attention required for her safety both before and after said operation.

'The defendant breached said contract, however, in that on or about the night of August 25th, 1949, after said operation, the defendant, acting by and through its servants and employees, who were then and there acting within the scope of their employment, so negligently, carelessly and unskillfully cared for and attended the plaintiff, Mae L. Holbrook, that before she had regained full control of her faculties and while her eyes were bandaged, she was permitted to fall from her bed to the floor, proximately resulting in serious personal injuries to the plaintiff, Mae L. Holbrook, described as follows:'

Appropriate allegations then follow concerning the injuries received and a claim for damages.

The other counts of the declaration allege the same facts and some additional facts not necessary to set forth here.

The defendant City filed a demurrer to the declaration, which among other grounds contained the following:

'Because it does not appear and it is not alleged in said declaration or any count thereof that written notice was given to the City Attorney within thirty (30) days after the alleged injuries to plaintiff, Mae L. Holbrook, as required by Section 196 of the City Charter of the City of Sarasota.'

The Circuit Judge sustained the demurrer to the declaration and each count thereof and allowed the plaintiff 15 days within which to file an amended declaration. The plaintiff refused to plead further and after due notice, the Circuit Judge entered the final judgment against the plaintiff, from which this appeal is prosecuted.

Only one question is presented by the briefs and arguments before the Court. It is: 'Where the Charter of the City of Sarasota provides that no suit shall be maintained against the City for damages arising out of its failure to keep in proper condition any sidewalk pavement, viaduct, bridge, street, waterworks, electric light plant, municipal docks and terminals, or other public place, neither shall any suit be maintained against the City arising out of any other tortious action or actions sounding in tort, unless it shall be made to appear that written notice of such damage was within thirty days after receiving of the injury given to the City Attorney with such reasonable specifications as to time and place and witnesses as would enable the proper city officials to investigate the matter, and a cause of action is brought for breach of contract, express or implied, to furnish nursing care and attention to patient in City Hospital, who is injured by being permitted to fall from her bed, is it necessary to allege that notice was given to the City Attorney?' The lower court answered this question in the affirmative.

It is the contention here of the appellants that the cause of action is for a breach of contract and that the charter provision of the City with reference to the written notice does not apply. It is argued on behalf of the appellee that the words ' or action sounding in tort' makes the giving of the notice a prerequisite to maintaining the suit against the City.

In a recent case, Suwannee County Hospital Corp. v. Golden, Fla., 56 So.2d 911, 913, in an opinion by Justice Thomas, we held:

'It is our view that one who enters a hospital of the type of appellant and pays for the professional services he receives is entitled to the same protection, and under our constitution, to the same redress for wrongs, that he would be entitled to had he had the same experience in a privately owned and operate hospital. And it bothers us not at all that the corporation is called 'Non-profit,' the 'net earnings' to be 'placed in its reserve fund, and used for hospital purposes.' True, these 'net earnings' do not reach the pocket of any individual, but we can see no impropriety or illogic in making them available for the sick who have been injured by mis-treatment as well as those who seek a restoration of health by proper treatment.

'At least as to those who are paying patients like appellee, the hospital is operated in a proprietary capacity, and they may not be divested of constitutional rights by the attempted statutory immunization. As to persons of...