Holcomb v. Escambia County Hospital Bd.

Decision Date12 April 1973
Citation291 Ala. 114,278 So.2d 699
PartiesLisa Ann HOLCOMB, suing By and Through her father and next of kin, Victor Holcomb v. ESCAMBIA COUNTY HOSPITAL BOARD, a Public County Hospital Corp. SC 130.
CourtAlabama Supreme Court

Kenneth Cooper, Bay Minette, for appellant.

Thomas E. Twitty, Mobile, Broox G. Garrett, Brewton, for appellee. On Rehearing

HARWOOD, Justice.

Upon original deliverance a majority of the justices of this Court concluded that the judgment entered in this cause should be reversed and remanded. An application for rehearing was duly filed. Upon further consideration and in the light of the application for rehearing, a majority of the justices have now concluded that the application for rehearing should be granted and the judgment of the court below affirmed.

The result of such action is stated by the Supreme Court of Mississippi in White v. State, 190 Miss. 589, 195 So. 479, to be:

'It was true at common law, and the principle is now sustained by the weight of authority, that an order granting a rehearing in a proper case operates to reverse or vacate and set aside the original decision of the appellate court.'

In Bally v. Guilford Township School Corporation, 234 Ind. 273, 126 N.E.2d 13, it is stated:

'Granting a rehearing recalls the former opinion of this court. Ewbank's Manual of Practice (2nd Ed.) § 246, p. 476.'

To like effect see Atlantic Greyhound Corp. v. Public Service Commission et al., 132 W.Va. 650, 54 S.E.2d 169.

Statements in accord with principles above enunciated may also be found in 5 C.J.S. Appeal and Error, § 1446 and 5 Am.Jur.2d., Appeal and Error, Sec. 984.

In Stoke v. Converse, 153 Iowa 274, 133 N.W. 709, the court observed:

'Had the opinion in 8 Iowa, 368, been withdrawn, it likely would not have appeared in the official reports, for the granting of a rehearing has the effect to withdraw the opinion previously filed.'

The basis upon which a majority of the justices have concluded that the application for rehearing should be granted is that at the original conference of the court when this case was presented the matter of the sufficiency of the assignments of error was not considered.

The appellant has made three assignments of error which read:

'No. 1. If the cause of action, as stated in the declaration arises from a breach of promise, the action is ex contractu.

'No. 2. When a complaint shows that a breach of contract is also a negligent failure to perform a duty which the law imposes by reasons of such contract, the injured party may sue for breach of contract when he is a party to it.

'No. 3. Where a breach of contract lies in the failure to perform as agreed upon, or in an omission or failure to enter into the duty to perform, however negligent such failure or omission might be, an action in assumpsit for breach of a contract will arise.'

Each of the above assignments constitutes nothing more than statements of general principles of law. No ruling of the trial court is mentioned. In assigning errors, an appellant must specify the action of the trial court which he would have reviewed and revised; and only adverse rulings of the trial court are subject to assignment as error and reviewable. The office of an assignment of error is not to set forth general legal principles or contentions, but solely to inform the court that an appellant assigns as erroneous a certain specified ruling.

The above principles are set forth in a myriad of our cases, and we see no need to again cite individual cases in support of the above statements. These cases may be found in Alabama Digest, Vol. 2A, Appeal and Error, k Nos. 718 and 719(1). By no construction, however liberal, can the purported assignments of error be considered as sufficient to invite a review of this judgment. The application for rehearing is therefore due to be granted, the original opinion and judgment of this court should be set aside, and the judgment appealed from is due to be affirmed. It is so ordered.

Application for rehearing granted.

Original opinion and judgment set aside.

Affirmed.

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

HEFLIN, C.J., and COLEMAN, J., concur specially.

FAULKNER and JONES, JJ., dissent.

HEFLIN, Chief Justice (concurring):

This case has been decided on a 'technicality' rather than its merits, and for the reasons stated in my special concurring opinion in Midstate Homes v. Roberts, 288 Ala. 86, 257 So.2d 333 (1972), I concur in the majority opinion.

COLEMAN, Justice (concurring specially):

I agree that the assignments of error are insufficient to present any question for review by this court, that the rehearing be granted, and that the judgment appealed from be affirmed.

FAULKNER and JONES, Justices (dissenting).

I. Sufficiency of Assignments of Error

In registering our dissent to the majority opinion--granting appellee's Application for Rehearing on the 'insufficiency' of appellant's assignments of error--we wish to make it clear that it is not our purpose to either disagree with Supreme Court Rule 1, or ignore its application. The spirit of this rule--requiring appellant to specify error so as not to put the appellate court in search of error--is essential to good order and its enforcement mandates dismissal of the appeal where the spirit of the rule is violated.

This dissent is based on our conviction that the spirit of this rule has not been violated in the instant case. The appeal is from a judgment of nonsuit superinduced by the adverse ruling of the trial court in sustaining defendant's demuurrer to the plaintiff's complaint. There is but a single ruling of the court below contained in the record and the office of a motion for voluntary nonsuit in such cases is for the limited and exclusive purpose of reviewing such ruling, and on appeal only such ruling is reviewable. Roan v. Associates Discount Corp., 281 Ala. 100, 199 So.2d 643; Esslinger v. Spragins, 236 Ala. 508, 183 So. 401.

As early as 1881, this Court, as then constituted, in Robinson v. Murphy, 69 Ala. 543, had the wisdom to recognize:

'. . . when the decree . . . is assailed as erroneous in the whole, an assignment of error, in the general terms of this assignment, must be accepted as conforming to the rules of practice.'

Later it was observed that this exception had been applied only in equity cases:

'As early as Brahan v. Collins, Minor, 169, this court declined to accept, as the requisite specification of error, a general undesignating assertion of error by an appellant. The only relaxation the practice has had is in equity cases, where the error relied on affected the whole decree. Robinson v. Murphy, 69 Ala. 543, 546.' Kinnon, as Adm'r. v. L. & N.R.R. Co., 187 Ala. 480, 482, 65 So. 397.

Rule 1 is equally applicable to appeals at law and in equity; and, as the case at hand so forcibly demonstrates, where there is a general assignment of error--which goes to the entire order of the trial court--no search of the record is required to discern the error complained of. In the usual case, absent specific assignments of error there is no 'pleading' by which the appellate court's ruling is invoked. That an exception exists (where a review of a single error going to the whole of the lower court's order is the avowed purpose of the appeal) is the common sense holding of Robinson.

The simple truth is (and we should bow our shameful heads in acknowledged blasphemy), except for the point being raised in appellee's brief, 1 the author of the original majority opinion would not have engaged in the futile exercise of 'searching' the record for the assignments of error; and, this for the reason that the error complained of in an appeal from a judgment of nonsuit is more apparent from the record than are the assignments of error--the basis of the Robinson exception. It is ironic, indeed, that the majority of the Court Was put in search of the record to discover the 'insufficiency' of the assignments of error, when the author of the original opinion Was not put in search of the record to discover the error complained of. We further note that the majority opinion in setting forth the assignments of error omits the lead sentence, which reads as follows:

'Comes now Lisa Ann Holcomb, suing by and through her father and next of friend, Victor Holcomb, Appellant in the above-styled cause, and says that there is manifest error in this cause and separately and severally assigns each of the following errors:'

It is our opinion that the words 'there is manifest error in this cause', coupled with the fact that this is an appeal from a judgment of nonsuit, conform to the exception recognied by this Court in Robinson.

The appellee's argument, in support of its contention that a failure to dismiss the appeal for appellant's violation of Rule 1 would deny to appellee 'equal protection of the laws', induces us to observe that perhaps some good may come from the granting of the Application for Rehearing. A public entity who enjoys sovereign immunity from tort actions, and who defended the instant appeal on its merits on that ground, is at least Talking about 'equal protection of the laws'.

II. Merits

Since the granting of the Application for Rehearing is grounded by the majority opinion on the limited issue of the sufficiency of assignments of error, and having registered our dissent on this point, we now adopt and herewith set forth the original opinion which was authored by Associate Justice Jones and concurred in by the Chief Justice and Associate Justices Coleman, Harwood and Faulkner.

This is an appeal from a judgment of the Circuit Court of Escambia County which sustained defendant's demurrer to the complaint and ordered an involuntary non-suit with leave to appeal.

The material allegations of the two counts of the complaint are as follows:

'COUNT ONE. Plaintiff claims of the defendant, Escambia County Hospital Board, a Public County Hospital Corporation, organized pursuant to ...

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