Russell v. Community Blood Bank, Inc.

• Decision Date: 22 April 1966
• Docket Number: No. 5866,5866
• Parties: Mae O. RUSSELL, Appellant, v. COMMUNITY BLOOD BANK, INC., a corporation, Appellee.
• Court: Florida District Court of Appeals

Page 749

185 So.2d 749

Mae O. RUSSELL, Appellant, v. COMMUNITY BLOOD BANK, INC., a corporation, Appellee.

No. 5866.

District Court of Appeal of Florida, Second District.

April 22, 1966.

Rehearings Denied May 17, 1966.

Bryson & Patterson, St. Petersburg, for appellant.

John T. Allen, Jr., of Mann, Harrison, Mann & Rowe, St. Petersburg, for appellee.

SHANNON, Acting Chief Judge.

This is an appeal from an order granting the motion of the defendant, Community Blood Bank, Inc., to dismiss a complaint filed by Mae O. Russell. The complaint alleged, in part:

'2. That on or about the 22nd day of June, 1963, the Plaintiff was a patient at Mound Park Hospital in St. Petersburg, Florida, and as a result of her illness was in need of a blood transfusion. That the Defendant sold certain blood to the Plaintiff for this purpose. Said blood was administered to the Plaintiff by persons other than the agents, servants or employees of the Defendant.

'3. That the Defendant knew or should have known that the blood sold by it to the Plaintiff was intended to be administered to the Plaintiff in the form of a blood transfusion. That the said blood was in fact so administered.

'4. That the said blood sold to the Plaintiff and administered to her in the form of said transfusion was impure and unfit for the use intended, as it contained a certain virus commonly known as serum hepatitis. That as a direct result of the use and administration of said impure and unfit blood, the Plaintiff contracted the disease commonly known as serum hepatitis.

'5. That the sale and condition of said blood was a breach of the implied warranties of merchantability and fitness for the use intended, to-wit, to be administered to the Plaintiff in the form of a blood transfusion. That said implied warranties arose between the Defendant as seller and the Plaintiff as buyer of said blood. That the sale of said blood was a transaction between the Plaintiff and Defendant complete in itself and entirely apart from any services rendered to the Plaintiff by Mound Park Hospital, its agent, servants or employees, or any other person.'

The defendant moved to dismiss, alleging, inter alia, that plaintiff's complaint failed to state a cause of action in that: 1) the complaint failed to allege facts sufficient to state a claim upon which any relief could be granted; 2) the complaint failed to allege facts which would constitute a sale or contract between plaintiff and the defendant; and 3) the complaint showed that the transaction constituted a service and not a sale.

The trial judge dismissed the complaint in an order in which he noted that there were no Florida cases in point, but that under the law of other jurisdictions the transfer of blood by a hospital or a blood bank is a service, not a sale, and that an implied warranty is not applicable to the 'sale' of blood. The pleadings and this order comprise the total record on appeal.

The issue before this court is whether the complaint states a cause of action. In answering this question we must remember that a defendant moving to dismiss a complaint is deemed, for the purpose of ruling on the motion, to have admitted all facts well pleaded in the complaint, as well as all reasonable inferences arising from those facts. E.g., Jackson Tom, Inc. v. Carlton, Fla.App.1961, 133 So.2d 752.

Perlmutter v. Beth David Hospital, 308 N.Y. 100, 123 N.E.2d 792 (1954), is the leading case on the subject of implied warranty in the sale of blood. The plaintiff in Perlmutter sued the hospital for injuries resulting from the transfusing of 'bad' blood, supplied by the hospital for a price as part of the services rendered by the hospital. Recovery was not sought on grounds of negligence, but upon the theory that the supplying of blood constituted a sale within the Sales Act and that, as a consequence, there attached implied warranties that the blood was reasonably fit for its intended purpose and of merchantable quality. The defendant's motion to dismiss had been denied by the trial court, and the decision was affirmed by the appellate division. The question was then certified to the Court of Appeals, which reversed, in a four-three decision, holding that the transaction was not a sale because a hospital contracts with a patient to provide services. The Court said:

'Such a contract is clearly one for services, and, just as clearly, it is not divisible. Concepts of purchase and sale cannot separately be attached to the healing materials--such as medicines, drugs or, indeed, blood--supplied by the hospital for a price as part of the medical services it offers. That the property or title to certain items of medical material may be transferred, so to speak, from the hospital to the patient during the course of medical treatment does not serve to make each such transaction a sale. "Sale' and 'transfer' are not synonymous', and not every transfer of personal property constitutes a sale. Halsted v. Globe Indemnity Co., 258 N.Y. 176, 179, 179 N.E. 376, 377. It has long been recognized that, when service predominates, and transfer of personal property is but an incidental feature of the transaction, the transaction is not deemed a sale within the Sales Act. * * *

'While determination, as to whether the essence of a particular contract is for the rendition of services or for the sale of property, may at times be troublesome and vexatious, there is no doubt that the main object sought to be accomplished in this case the care and treatment of the patient. The supplying of blood by the hospital was entirely subordinate to its paramount function of furnishing trained personnel and specialized facilities in an endeavor to restore plaintiff's health. It was not for blood--or iodine or bandages--for which plaintiff bargained, but the wherewithal of the hospital staff and the availability of hospital facilities to provide whatever medical treatment was considered advisable. The conclusion is evident that the furnishing of blood was only an incidental and very secondary adjunct to the services performed by the hospital and, therefore, was not within the provisions of the Sales Act. * * *' 123 N.E.2d at 794, 795.

The court distinguished the situation in which a person buys food, rather than service, in a restaurant, by stating that a customer enters a restaurant with the idea of buying food, but that a patient goes to a hospital for medical treatment, and not to buy medical supplies.

The opinion of the majority also stated that:

'* * * Informed opinion is at hand that there is today neither a means of detecting the presence of the jaundice-producing agent in the donor's blood nor a practical method of treating the blood to be used for transfusion so that the danger may be eliminated * * *.' 123 N.E.2d at 795.

This case has been expressly followed in other jurisdictions in which suit for breach of implied warranty in the sale of blood was brought against a hospital, Sloneker v. St. Joseph's Hospital, 233 F.Supp. 105 (D.Colo.164); Gile v. Kennewick Public Hospital Dist., 48 Wash.2d 774, 296 P.2d 662, 59 A.L.R.2d 761 (1956); Koenig v. Milwaukee Blood Center, Inc., 23 Wis.2d 324, 127 N.W.2d 50 (1964); Dibblee v. Dr. W. H. Groves Latter-Day Saints Hospital, 12 Utah 2d 241, 364 P.2d 1085 (1961). These courts are unanimous in holding that a transfer of blood by a hospital to a patient is not a sale but a service. The rule has been extended to the situation in which the plaintiff sues the blood bank furnishing the blood to the hospital, for which there is a separate charge, the courts holding that the service aspect of the transaction predominates, Whitehurst v. American National Red Cross, 1 Ariz.App. 326, 402 P.2d 584; Balkowitsch v. Minneapolis War Memorial Blood Bank, Inc., 1965, 270 Minn. 151, 132 N.W.2d 805. The alleged defect in these latter cases was the serum hepatitis virus, and the courts were impressed with the admitted or demonstrated inability to detect or remove the defect. In analogous situations courts have immunized hospitals from liability for mismatched blood on the theory that mismatching is negligence, a tort, for which liability charitable institutions in their jurisdictions were immune, Goelz v. J. K. & Susie L. Wadley Research Institute & Blood Bank, Tex.Civ.App.1961, 350 S.W.2d 573; Gile v. Kennewick Public Hospital Dist., supra, and that an action in implied warranty, ex contractu, could not lie because furnishing of blood was not a sale. Ibid. One court recognized that a distinction might possibly be drawn between a hospital which furnished medical services, and a blood bank which collected the blood and supplied it to the hospital, but declined to decide the question since it was not then in issue. Koenig v. Milwaukee Blood Center, Inc., supra, 127 N.W.2d at 52.

We believe there is a distinction between a suit against a blood bank as opposed to a hospital, despite authority to the contrary. The original 'service rather than sale' rationale, even as applied to hospitals, has been criticized, e.g., Perlmutter v. Beth David Hospital, supra, 123 N.E.2d 792, 796 (dissenting opinion); 103 U.Pa.L.Rev. 833 (1954--55), and questioned, Gottsdanker v. Cutter Laboratories, 1960, 182 Cal.App.2d 602, 6 Cal.Rptr. 320, 324, 79 A.L.R.2d 290. It is evident from our research that although many of the decisions denying recovery for breach of implied warranty are based on the technical distinction between a service and a sale, the factor underlying the decisions is the inability, in the present state of medical knowledge, to detect or remove the virus which causes serum hepatitis. It is often stated that it would be against public policy to impose strict warranty liability, for an undetectable, unremovable defect, against a non-commercial organization which was supplying a commodity essential for medical treatment. See Balkowitsch v. Minneapolis War Memorial Blood Bank, supra; Dibblee v. Dr. W. H. Groves, supra; cf. Merck & Co., Inc. v....